Union Pac. R. Co. v. Thomas

• Decision Date: 19 April 1907
• Docket Number: 2,469.
• Parties: UNION PAC. R. CO. v. THOMAS.
• Court: U.S. Court of Appeals — Eighth Circuit

152 F. 365

UNION PAC. R. CO. v. THOMAS.

No. 2,469.

United States Court of Appeals, Eighth Circuit.

April 19, 1907

(Syllabus by the Court.)

Information which is proper and necessary to enable the physicians of a railroad company to treat an injured person, which is acquired by them from such person for that purpose while they are endeavoring to treat her professionally, although against her protest, is a privileged communication, under section 5907, Comp. St. Neb. 1901.

The essentials of a privileged communication between physician and patient are: (1) The confidential relation of physician and patient; (2) the necessity and propriety of the information to enable the physician to treat the patient skillfully in his professional capacity; and (3) its acquisition by the physician from the patient during the existence of the relation.

Such a communication is not deprived of its privileged character by the fact that the relation is established at the instance of a third party.

A patient waives his privilege by voluntarily producing, or introducing at the trial, evidence of the confidential communication, and thereby exempts the testimony of his physician thereto from all objections upon that ground because he thereby publishes it and deprives it of its confidential character.

But neither the commencement of an action for an injury nor testimony of the condition of the injured party has this effect.

Errors in rulings and misstatements of facts by the court during the progress of the trial, which are clearly corrected by it before the trial closes, or in the charge of the court to the jury, are not generally fatal to the judgment.

The opinion of the trial court expressed to the jury upon matters of fact which are ultimately submitted to them for their decision is not reviewable error in a national court, so long as no rule of law is incorrectly stated.

A general exception, which specifies no ground to a charge or a portion of a charge to a jury, which embodies several propositions of law, is futile if any of the propositions are sound.

Edson Rich (John N. Baldwin, on the brief), for plaintiff in error.

Francis A. Brogan, for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN Circuit Judge.

The plaintiff below was injured by the collision of a car of the Union Pacific Railroad Company, in which she was a passenger with an engine upon another track, and she was taken to the surgeon's room in the Union Station at Omaha, where two of the physicians of the company attended her. She brought this action for damages caused by her injury. The court refused, upon the objection of the plaintiff, to permit the medical men to testify to the examinations of the plaintiff which they made, to their conversations with her, and to the treatment which they gave her at the station, upon the ground that these were confidential communications under section 5907 of the Compiled Statutes of Nebraska of 1901, which reads in this way:

'No practicing attorney, counsellor, physician, surgeon, minister of the gospel, or priest of any denomination, shall be allowed in giving testimony, to disclose any confidential communication, properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline.'

There was evidence that the physicians went to the station on behalf of the company to render professional services to any who had been injured by this collision who were in need of such services, that the questions which they asked, the examinations which they made, and the information which the plaintiff gave to them were proper and necessary to enable them to treat her as physicians in a skillful way, and that they were made and given for this purpose; but that the plaintiff refused to permit any extended examination of her person in the station, and when one of the physicians gave her a sedative she refused to take it, and demanded that she be removed to her home.

The essential elements of a privileged or a confidential communication to a physician under the Nebraska statute are: (1) The relation of physician and patient; (2) information acquired during this relation; and (3) the necessity and propriety of the information to enable the physician to treat the patient skillfully in his professional capacity. These attributes characterize the communications which the defendant sought to prove by the physicians, and they were not deprived of their privileged character by the fact that the relation of physician and patient was established at the request of the defendant and against the protest of the plaintiff. Confidential communications by a patient to a physician are not less privileged because the relation is established at the request of a third person. The physicians who testified in this case attended the plaintiff for the purpose of treating her in their professional capacity, in the discharge of their duty to the company which employed them. All the information which they acquired from her was necessary or proper to enable them to do so. This information was obtained during the existence of the relation of physician and patient, which they themselves established and by virtue of that relation alone, and it was rightfully excluded under the statute of Nebraska. Raymond v. Ry. Co., 65 Iowa, 152, 21 N.W. 495; Keist v. C.G.W. Ry. Co., 110 Iowa, 32, 81 N.W. 181; Renihan v. Dennin, 103 N.Y. 573, 579, 9 N.E. 320, 57 Am.Rep. 770; Griffiths v. Metropolitan St. Ry. Co., 63 N.E. 808, 171 N.Y. 106; Colorado Fuel & Iron Co. v. Cummings, 46 P. 875, 8 Colo.App. 541.

One of the questions and one of the answers excluded read in this way:

'Q. You may state what Mrs. Thomas said to you. A. She said she had been injured in the wreck by being struck on the back of the neck.' Counsel contend that, if the entire communications were incompetent, yet this question and answer were not privileged, because it was not necessary for the physician to obtain the information they contain in order to enable him to skillfully treat the plaintiff. But before this answer was given the physician had testified that he went to the station for the purpose of administering to Mrs. Thomas, or any other passenger injured by the collision, in such a way as her condition might require; that he commenced to engage Mrs. Thomas in conversation for the purpose of ascertaining her condition and to administer remedies. The physician, therefore, was of the opinion that the information obtained by the answer to this question was reasonable to enable him to ascertain the condition of his patient and to administer proper remedies to her. It was in the light of this testimony that the answer was excluded, and, in view of the probability that it was necessary and proper for the physician to learn in what part of her person the plaintiff had been injured in order to properly treat her, no sound reason occurs to us why the information which this answer conveyed was not privileged. In support of the opposite view, counsel cite two cases, in which information acquired by a physician from his patient relative to the way in which the accident happened, as that the injured person fell through a trapdoor, has been held admissible. Harriman v. Stowe, 57 Mo. 93; Greene v. Metropolitan St. Ry. Co., 63 N.E. 958, 171 N.Y. 201, 89 Am.St.Rep. 807. But these are not controlling authorities, because the questions they present are not analogous to that in hand. It may be unnecessary for a physician to learn by what force an injury was inflicted upon the patient, while it may be indispensable for him to know upon what portion of his person this force was imposed in order to treat him skillfully. The question and answer were a part of a communication between the physician and his patient which consisted of the statement in the answer, of other conversation and of a limited examination. They were all of a privileged character and properly excluded.

Another position of counsel for the company is that the plaintiff waived her privilege because she testified to the communication, and thereby rendered the evidence of the physicians competent. Testimony voluntarily produced on behalf of a patient or a client of communications between him and his physician or his attorney undoubtedly waives his privilege and exempts the evidence of the physician or attorney relative to the communication from all objection on the ground that it is confidential or privileged, because the patient or client has thereby made it public. Hunt v Blackburn, 128 U.S. 464, 470, 9 Sup.Ct. 125, 32 L.Ed. 488. But the reason for this rule is that the patient or client has deprived the communication of its confidential character by voluntarily causing it to be recited in public. Testimony that is not voluntarily given and evidence that does not recite the communication works no waiver, because the reason for the rule there ceases, and the rule becomes inapplicable. Burgess v. Sims Drug Co., 114 Iowa, 275, 86 N.W. 307, 54 L.R.A. 364, 89 Am.St.Rep. 359. Upon her direct examination the plaintiff testified that some one whom she did not know came into the station, wanted to examine her, took hold of her feet and felt them, and put his hand under the back of her neck, and she told him she did not want him to touch her, but gave no evidence that this...