Smith v. Driscoll

• Decision Date: 30 January 1917
• Docket Number: 13668.
• Citation: 162 P. 572,94 Wash. 441
• Court: Washington Supreme Court
• Parties: SMITH v. DRISCOLL et al.

162 P. 572

94 Wash. 441

SMITH v. DRISCOLL et al.

No. 13668.

Supreme Court of Washington

January 30, 1917

Department 2. Appeal from Superior Court, Franklin County; Bert Linn Judge.

Action by R. D. Smith against J. P. Driscoll and another. Judgment for defendants on demurrer to the complaint, and plaintiff appeals. Affirmed.

Davis &amp Johnson, of Pasco, for appellant.

Driscoll & Leonard, of Pasco, for respondents.

WEBSTER J.

Appellant instituted this action against respondents, who are licensed and practicing physicians and surgeons, to recover damages for an alleged wrongful publication and disclosure of confidential information acquired by them in their professional capacity. From a judgment upon a demurrer to the complaint dismissing the action, this appeal is prosecuted.

The portion of the complaint necessary to an understanding of this opinion reads as follows:

'That on or about the 11th day of March, 1916, the respondents and each of them slandered the plaintiff as follows, to wit: That the defendants and each of them, as witnesses in the case entitled F. P. Leonard v. R. D. Smith in justice court in and for Pasco precinct, Franklin county Washington, before A. F. Wehe, justice, testified over the timely and strenuous objection of the plaintiff as to the facts, information and communications having come to their knowledge in their capacity as physicians and surgeons, having been gained in attending the plaintiff, such information being necessary to enable the said defendants to prescribe for the plaintiff; that the words uttered and published by the defendant while so testifying and over the objections of the plaintiff were:_____.'

We shall not go into the question, suggested in respondents' brief, that the action is improperly designated as one for slander. If the facts set forth in the complaint entitle appellant to relief, it is wholly immaterial by what name the action is called. Neither is it necessary to pursue at length the inquiry of whether a cause of action lies in favor of a patient against a physician for wrongfully divulging confidential communications. For the purposes of what we shall say it will be assumed that, for so palpable a wrong, the law provides a remedy.

As we view the record, however, this case must turn on a question of pleading. It affirmatively appears from the complaint that the statements relied upon for recovery in this case were made by respondents while testifying as witnesses in the trial of a cause in a court of justice. The question presented, therefore, is not the naked one of whether a physician is liable in damages at the suit of a patient for wrongfully divulging confidential communications; but the precise question is this: Is a physician, who, while testifying as a witness in the course of a judicial proceeding, discloses confidential communications made to him, or professional information acquired by him, while prescribing for a petient, liable in damages to the patient for so testifying? This question cannot be answered categorically. He may or he may not be liable, depending upon the facts of the particular case. While we have been unable to find any cases directly in point, the applicable principles of law are not difficult to discover. To the ordinary mind it would seem that a physician, while testifying in a court of justice, is in the same situation as any other witness, and his rights and liabilities are to be determined by the same legal standards that are applied to a witness who is not a physician. We can conceive of no possible reason why the protection, which the law in the interest of a due administration of justice and upon considerations of sound public policy places about witnesses generally, should be denied to a particular witness merely because he is a physician. If this immunity is withdrawn in his case, surely the situation of the physician as a witness is not an enviable one. If he is interrogated, and required by the court to answer, concerning confidential communications in his professional keeping, and does so, he will be rewarded for his obedience to the law by being mulcted in damages to the aggrieved patient. If, on the other hand, he considers it to be his paramount duty to preserve in its integrity his obligation to his patient and refuses to testify, he will be rewarded for his professional loyalty by being committed to jail. Manifestly no such barbarous rule would be tolerated by any system of...