State v. George, 48562

• Decision Date: 25 February 1978
• Docket Number: No. 48562,48562
• Citation: 223 Kan. 507,575 P.2d 511
• Parties: STATE of Kansas, Appellee, v. Wayman L. GEORGE, Appellant.
• Court: Kansas Supreme Court

Page 511

575 P.2d 511

223 Kan. 507

STATE of Kansas, Appellee, v. Wayman L. GEORGE, Appellant.

No. 48562.

Supreme Court of Kansas.

Feb. 25, 1978.

Syllabus by the Court

1. Information obtained by a physician during the examination of a patient is privileged and may not be received in evidence as a part of the prosecution's case during a misdemeanor trial over the objection of the patient-defendant.

2. The presence of peace officers during the examination of a patient-defendant by a physician does not necessarily require a holding that the information obtained by the physician is not confidential, or that the patient-physician privilege is waived.

Stanley R. Juhnke, of Dinges, Gottschalk, Bolton & Juhnke, Hutchinson, argued the cause and was on the brief, for appellant.

Kenneth R. Heer, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief, for appellee.

MILLER, Justice:

This is a direct appeal by the defendant, Wayman L. George, from his conviction for operating a vehicle while he was under the influence of intoxicating liquor, in violation of K.S.A. 8-1567 (now K.S.A.1977 Supp. 8-1567). After conviction by a jury, George was sentenced to six months in jail, placed on probation, and given a restricted driver's license which permitted him to drive to and from work.

He raises but one point: that it was a violation of the physician-patient privilege, as set out in K.S.A. 60-427, to allow into evidence the testimony of Dr. Lester Donley. The parties have stipulated that George would not have been convicted without the doctor's testimony; thus if the admission of the testimony was error, it was reversible error.

Deputy Sheriff Kerns was the first witness for the state. He testified that he arrested George on the afternoon of July 10, 1975, and took him from the scene to the county jail. George admitted that he had ingested some "Old Charter" that afternoon, but refused to take a blood alcohol test, or the heel-to-toe or finger-to-nose tests. He told the officers that he had struck his head, and he asked them to call his physician, Dr. Donley. When the doctor arrived, the undersheriff brought George into the sheriff's office where Dr. Donley examined him in the presence of Kerns and Deputy Sheriff Maddox.

After the doctor finished his examination, Kerns asked George if he would perform the heel-to-toe and finger-to-nose tests. George agreed to the tests if Dr. Donley would witness them. Kerns then proceeded to administer the tests, first by having George attempt to walk in a straight line by placing the heel to the toe, and next by having him attempt to touch the end of his nose while his eyes were closed. Kerns said that George had quite a problem in placing the heel to toe, and keeping his balance. He was wobbling as he walked. When George closed his eyes and attempted to touch the end of his nose, he fell back in a chair against the wall, and said that no one could do the test.

The state's second witness was Dr. Donley. He was asked what he did in examining the defendant, and what the results of that examination were. At this point defense counsel objected for the reason that the testimony would violate the patient-physician privilege, K.S.A. 60-427. The state contended that the information was not confidential since it was transmitted in the presence of the two officers, whose presence was not "reasonably necessary for the transmission of the information." The trial court overruled the objection.

The doctor then testified that he examined George's head and found no injuries; the pupils of his eyes were equal but he had difficulty in following movement precisely; his heart, blood pressure, and pulse were all within normal limits. Dr. Donley then described George's attempts to perform the heel-to-toe and finger-to-nose tests. In Dr. Donley's opinion, the symptoms he observed were not indicative of a blow to the head or a concussion; in his opinion, George was under the influence of alcohol.

K.S.A. 60-407 sets forth the general rule that:

"Except as otherwise provided by statute (a ) every person is qualified to be a witness, and . . . (e ) no person has a privilege that another shall not be a witness or shall not disclose any matter . . . and (f ) all relevant evidence is admissible."

An exception to this general rule is provided by K.S.A. 60-427 which reads as follows:

"(a ) As used in this section, (1) 'patient' means a person who, for the sole purpose of securing preventive, palliative, or curative treatment, or a diagnosis preliminary to such treatment, of his or her physical or mental condition, consults a physician, or submits to an examination by a physician; (2) 'physician' means a person licensed or reasonably believed by the patient to be licensed to practice medicine or one of the healing arts as defined in K.S.A. 65-2802 in the state or jurisdiction in which the consultation or examination takes place; (3) 'holder of the privilege' means the patient while alive and not under guardianship or conservatorship or the guardian or conservator of the patient, or the personal representative of a deceased patient; (4) 'confidential communication between physician and patient' means such information transmitted between physician and patient, including information obtained by an examination of the patient, as is transmitted in confidence and by a means which, so far as the patient is aware, discloses the information to no third persons other than those reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it is transmitted.

"(b ) Except as provided by subsections (c ), (d ), (e ) and (f ) of this section, a person, whether or not a party, has a privilege in a civil action or in a prosecution for a misdemeanor to refuse to disclose, and to prevent a witness from disclosing, a communication, if the person claims the privilege and the judge finds that (1) the communication was a confidential communication between patient and physician, and (2) the patient or the physician reasonably believed the communication necessary or helpful to enable the physician to make a diagnosis of the condition of the patient or to prescribe or render treatment therefor, and (3) the witness (i ) is the holder of the privilege or (ii ) at the time of the communication was the physician or a person to whom disclosure was made because reasonably necessary for the transmission of the communication or for the accomplishment of the purpose for which it was transmitted or (iii ) is any other person who obtained knowledge or possession of the communication as the result of an intentional breach of the physician's duty of nondisclosure by the physician or his or her agent or servant and (4) the claimant is the holder of the privilege or a person authorized to claim the privilege for him or her.

"(c ) There is no privilege under this section as to any relevant communication between the patient and his or her physician (1) upon an issue of the patient's condition in an action to commit him or her or otherwise place him or her under the control of another or others because of alleged incapacity or mental illness, or in an action in which the patient seeks to establish his or her competence or in an action to recover damages on account of conduct of the patient which constitutes a criminal offense other than a misdemeanor, or (2) upon an issue as to the validity of a document as a will of the patient, or (3) upon an issue between parties claiming by testate or intestate succession from a deceased patient.

"(d ) There is no privilege under this section in an action in which the condition of the patient is an element or factor of the claim or defense of the patient or of any party claiming through or under the patient or claiming as a beneficiary of the patient through a contract to which the patient is or was a party.

"(e ) There is no privilege under this section as to information which the physician or the patient is required to report to a public official or as to information required to be recorded in a public office, unless the statute requiring the report or record specifically provides that the information shall not be disclosed.

"(f ) No person has a privilege under this section if the judge finds that sufficient evidence, aside from the communication has been introduced to warrant a finding that the services of the physician were sought or obtained to enable or aid anyone to...