Sims v. Charlotte Liberty Mut. Ins. Co.

• Decision Date: 02 May 1962
• Docket Number: No. 379,379
• Citation: 257 N.C. 32,125 S.E.2d 326
• Parties: Juanita SIMS, by her Next Friend, Ruth Mae Sims, v. CHARLOTTE LIBERTY MUTUAL INSURANCE COMPANY.
• Court: North Carolina Supreme Court

Page 326

125 S.E.2d 326

257 N.C. 32

Juanita SIMS, by her Next Friend, Ruth Mae Sims, v. CHARLOTTE LIBERTY MUTUAL INSURANCE COMPANY.

No. 379

Supreme Court of North Carolina.

May 2, 1962

Hoyle C. Ripple, Winston-Salem, for plaintiff.

Womble, Carlyle, Sandridge & Rice and Wesley Bailey, Winston-Salem, for defendant.

MOORE, Justice.

The trial court excluded the contents of the hospital records without assigning any reason for the ruling. Consequently if they were inadmissible on any legal ground, the ruling should be upheld. The plaintiff insists the records were inadmissible upon two grounds: (1) as hearsay, and (2) as privileged communications.

Hospital records, when offered as primary evidence, are hearsay. However, we think they come within one of the well recognized exceptions to the hearsay rule--entries made in the regular course of business. Modern business and professional activities have become so complex, involving so many persons, each performing a different function, that an accurate daily record of each transaction is required in order to prevent utter confusion. An inaccurate and false record would be worse than no record at all. Ordinarily, therefore, records made in the usual course of business, made contemporaneously with the occurrences, acts, and events recorded by one authorized to make them and before litigation has arisen, are admitted upon proper identification and authentication. Smith Builders Supply Co. v. Dixon, 246 N.C. 136, 97 S.E.2d 767; Breneman Co. v. Cunningham, 207 N.C. 77, 175 S.E. 829; Insurance Co. v. Seaboard Air Line R. Co., 138 N.C. 42, 50 S.E. 452.

It is a matter of common knowledge, we think, that modern hospitals are staffed by medical, surgical and technological experts who serve as members of a team in the diagnosis and treatment of human ills and injuries. The hospital record of each patient is the daily history made in the course of examination, diagnosis and treatment. The welfare, even the life of the patient, depends upon the accuracy of the record. And the records, as evidence, are more credible perhaps, as to accuracy, than the independent recollection of the physicians, surgeons and technicians who make them. Motive for falsification is lacking. Globe Indemnity Co. v. Reinhart, 152 Md. 439, 137 A. 43; 26 Am.Jur., Hospitals and Asylums, s. 6, p. 590; 75 A.L.R. 1124; 13 N.C.Law Review 326; 24 Missouri Law Review 51; 58 West Virginia Law Review 76; 14 Southern California Law Review 99. On this subject Parker, J., of the United States Court of Appeals for the Fourth Circuit, delivered an illuminating opinion--United States v. Wescoat, 49 F.2d 193.

In instances where hospital records are legally admissible in evidence, proper foundation must, of course, be laid for their introduction. The hospital librarian or custodian of the record or other qualified witness must testify to the identity and authenticity of the record and the mode of its preparation, and show that the entries were made at or near to the time of the act, condition or event recorded, that they were made by persons having knowledge of the data set forth, and that they were made ante litem motam. The court should exclude from jury consideration matters in the record which are immaterial and irrelevant to the inquiry, and entries which amount to hearsay on hearsay.

The hospital records offered at the trial are not inadmissible as hearsay. They fall within the exception to the hearsay rule.

The next inquiry is whether or not the hospital records are privileged under the provisions of G.S. § 8-53 and therefore inadmissible.

At common law communications from patients to physicians are not privileged. Such privilege is purely statutory. It is the purpose of such statutes to induce the patient to make full disclosure that proper treatment may be given, to prevent public disclosure of socially stigmatized diseases, and in some instances to protect patients from self-incrimination. In 1828 New York became the first state to recognize the privilege. Now twenty-nine states have statutes dealing with this subject. In 1885 the General Assembly of North Carolina passed an Act providing: 'No person duly authorized to practice physic or surgery shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon: Provided, that the presiding judge of a superior court may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice. ' Ch. 159, Laws of N. C., 1885; G.S. § 8-53. Except for the proviso, our law is the same as the original New York statute.

The caption or title of our statute according to the original enactment is 'An act making it unlawful for physicians or surgeons to disclose information lawfully communicated to them by their patients. ' From this it would appear that the statute relates only to information orally communicated to the physician or surgeon by the patient. But the act itself is more comprehensive than the title and extends the privilege to include also any information which the physician or surgeon acquires in attending the patient in a professional character, and which is necessary to enable him to prescribe for or treat the patient. It is the law in this jurisdiction that the caption or title of a statute will be considered in its construction when the meaning of the act is doubtful, but when, as in G.S. § 8-53, the text is clear the title does not control. Town of Blowing Rock v. Gregorie, 243 N.C. 364, 371, 90 S.E.2d 898; In re Chisholm's Will, 176 N.C. 211, 96 S.E. 1031. We have no constitutional provision giving special significance to statute titles as has Pennsylvania for instance. In that state a statute is constitutional only to the extent that its purpose is clearly expressed in the title. A Pennsylvania statute renders privileged the information a physician acquires in attending the patient in a professional capacity and which tends to blacken the character of the patient. But the title of the statute refers only to communications. The Pennsylvania court limits the privilege to oral communications. In re Phillips' Estate, 295 Pa. 349, 145 A. 437 (1929).

The North Carolina statute has been construed as follows: 'It is the accepted construction of this statute that it extends, not only to information orally communicated by the patient, but to knowledge obtained by the physician or surgeon through his own observation or examination while attending the patient in a professional capacity, and which was necessary to enable him to prescribe. ' Smith v. John L. Roper Lumber Co., 147 N.C. 62, 64, 60 S.E. 717, 718, citing cases from other jurisdictions. It is conceded that in the Smith case such construction of the statute was only incidentally necessary to decision on the facts presented. But this construction has been followed by us in many cases directly involving information obtained by physicians and surgeons through examination and treatment. Brittain v. Piedmont Aviation, Inc., 254 N.C. 697, 120 S.E.2d 72; Capps v. Lynch, 253 N.C. 18, 116 S.E.2d 137; Yow v. Pittman, 241 N.C. 69, 84 S.E.2d 297; Creech v. Sovereign Camp Woodmen of the World, 211 N.C. 658, 191 S.E. 840; Sawyer v. Weskett, 201 N.C. 500, 160 S.E. 575; Metropolitan Life Insurance Co. v. Boddie, 194 N.C. 199, 139 S.E. 228.

Most of the privilege statutes in the states having such legislation are similar to ours and were modeled after the original New York statute. However, in seven states the privilege is limited by statute to oral communications, and court decisions generally follow the statutes as written. In some jurisdictions the privilege statutes are strictly construed on the theory that they are in derogation of the common law; in others the courts say that the statutes are remedial and consequently should be liberally construed. 39 Michigan Law Review 1258. Ohio has a statute which limits privilege to communications by the patient, but its courts hold that a communication may be, not only by word of mouth, but also by exhibiting the body or any part thereof to the physician for his opinion, examination or diagnosis. Meier v. Peirano, 76 Ohio App. 9, 62 N.E.2d 920 (1945). North Carolina is a strict constructionist. We are not disposed to extend the privilege beyond the plain sense of the text of the statute, but we are required to give effect to that.

We have not heretofore had occasion to apply the statute in a hospital records case. Frankly, we perceive no difference in the application of the statute between examination and treatment of the patient by a physician or surgeon in a hospital and in the home. The information is no less privileged that it was obtained in a hospital. 'It may be laid down as a general rule that the incompetency of a physician to testify concerning information acquired while attending a person in a professional capacity extends to a physician connected with a hospital * * * who offers testimony as to the condition of the patient therein,' where his duty in the hospital involved professional attention to the patient. 22 A.L.R., Anno.--Witness--Hospital Physicians, p. 1217, where many cases from many jurisdictions are cited and reviewed. A fortiori, if the hospital physician is incompetent personally to testify to information obtained, entries made by him or under his direction pertaining to the same matter is inadmissible as evidence. We therefore hold that G.S. § 8-53 applies to the hospital records offered in evidence in this case insofar as they contain entries made by physicians and surgeons, or under their direction, pertaining to communications and information obtained by them in attending the insured professionally, which information was necessary to enable them to prescribe for her. However, any other information contained...