Woods v. Inc. Town of Lisbon

• Decision Date: 15 March 1911
• Citation: 150 Iowa 433,130 N.W. 372
• Parties: WOODS v. INCORPORATED TOWN OF LISBON.
• Court: Iowa Supreme Court

150 Iowa 433

130 N.W. 372

WOODS

v.INCORPORATED TOWN OF LISBON.

Supreme Court of Iowa.

March 15, 1911.

Appeal from District Court, Linn County; F. O. Ellison, Judge.

Suit to recover damages for a personal injury. Verdict and judgment for plaintiff. The defendant appeals. Reversed.Randall, Courtney & Harding and Jamison, Smyth & Hann, for appellant.

E. A. Johnson and Chas. W. Kepler & Son, for appellee.

SHERWIN, C. J.

This is the second appeal in this case. The opinion on the first appeal is reported in 138 Iowa, 402, 116 N. W. 143, 16 L. R. A. (N. S.) 886, 128 Am. St. Rep. 208, where a sufficient statement of the issues will be found. One of the questions before us on this appeal is whether the court rightly held that Drs. York and Crawford were incompetent witnesses for the defendant under the record here presented. Dr. York was the plaintiff's attending physician from the time of her injury until after the operation on her at the hospital, and Dr. Crawford was one of her physicians at the hospital operation. These two physicians were so related to the plaintiff in a professional way as to make them incompetent witnesses under the statute unless she waived the secrecy imposed thereby. The statute (Code, § 4608), so far as material here, is as follows: “No practicing physician * * * (or) surgeon, * * * who obtains such information by reason of his employment, * * * 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. * * * Such prohibition shall not apply to cases where the party in whose favor the same is made waives the rights conferred.” The question here is whether the plaintiff waived the prohibition of the statute.

The statute does not absolutely disqualify the physician from testifying, but it places it within the power of the patient to secure medical aid without the betrayal of his confidence. The patient may, therefore, waive objection, and, the statute expressly provides, permit the physician to testify. The waiver may be made in several ways: It may be done by calling the physician to testify as to privileged matters or by calling other witnesses to testify to the same facts. Manifestly, if the patient himself breaks the seal of secrecy and gives publicity to the whole matter, there is a waiver, and this is true whether publicity is given by the testimony of the physician, by the testimony of the patient himself, or by the testimony of his other witnesses. In other words, when the patient voluntarily publishes the occurrences of the sick room, he cannot be permitted to insist that the prohibition and privilege of the statute continues to exist as to his physician. If by his voluntary act he lifts the veil, the professional duty of secrecy ceases, and the physician is a competent witness under the statute. It would be a reproach to the administration of justice, even in the absence of the statute, if the patient himself might detail all that occurred with his physician and yet compel the physician to remain silent. 23 Am. & Eng. Enc. of Law (2d Ed.) 91; 10 Current Law, 2092; Marquardt v. Brooklyn R. Co., 126 App. Div. 272, 110 N. Y. Supp. 657;Marx v. Manhattan Ry. Co., 56 Hun (N. Y.) 576, 10 N. Y. Supp. 159;Morris v. New York Ry. Co., 148 N. Y. 88, 42 N. E. 410, 51 Am. St. Rep. 675;Lane v. Boicourt, 128 Ind. 420, 27 N. E. 1111, 25 Am. St. Rep. 442;State v. Bennett, 137 Iowa, 427, 110 N. W. 150;Lauer v. Banning, 140 Iowa, 319, 118 N. W. 446;Burgess v. Sims Drug Co., 114 Iowa, 275, 86 N. W. 307, 54 L. R. A. 364, 89 Am. St. Rep. 359;People v. Gallagher, 75 Mich. 512, 42 N. W. 1063;Hunt v. Blackburn, 128 U. S. 464, 9 Sup. Ct. 125, 32 L. Ed. 488;Denning v. Butcher, 91 Iowa, 425, 59 N. W. 69;Kelly v. Cummens, 143 Iowa, 148, 121 N. W. 540.

That the plaintiff waived the secrecy imposed by the statute as to what Dr. York did before she went to the hospital will clearly appear from her direct testimony in her own behalf, a part of which is as follows: “A. I suffered intense pain across my abdomen while going from the chicken house to my home. Q. I wish you would describe to me the nature and character as to whether or not it was a bearing down. A. It was a bearing down pain all of the time right across here, so severe I could hardly stand it going over home. This was right across my abdomen there over the womb. The doctor and my mother-in-law and my husband came to my house. The doctor did not do anything only inject medicine in my arm and examine me. He examined me with a speculum, inserting it into my vagina. He remained about 15 or 20 minutes. He spent about 15 minutes examining me. * * * The doctor came back to see me the next morning. The pain continued all night as it had during the afternoon and evening, and it made me sick all over. The accident occurred on Wednesday. The doctor came back Thursday morning and injected some medicine in my arm and left some for me to take internally. He was there again Thursday evening. On Friday my pains were different. They were bearing down pains and cramps getting down near the lower part of the abdomen. They were more bearing down, more labor pains. I am the mother of a child. These pains were of the nature of labor pains. They were bearing down pains across the lower part of the abdomen and the womb. I commenced to flow on Friday. The doctor was there Friday and Saturday. On Sunday he performed an operation at my house. The only change in the pains from Friday to Sunday was that they became more severe. Dr. York performed an operation on me in the afternoon of Sunday. He came in the afternoon about 3 o'clock, and it was about 5:30 when he went home. My mother-in-law, Mrs. Kohl, my husband, and Mrs. Stanton were present when this operationwas performed. Q. Tell me in your own way, Mrs. Woods, just what all the doctor did, describe the instruments he used as near as you can, and the manner in which he used them. A. When he first came, he gave me some whisky to take. Laid me across the bed and worked with the instruments--speculum in the vagina. Used instruments about 9 or 10 inches long. Q. How many instruments did he use? A. Three or four different kinds he used. Q. Did he insert them into your vagina? A. Yes, sir. Q. How long was he working with you till he removed something from your person? A. About an hour and a half. Q. Were you lying on the bed? A. Yes. Q. State to the jury just how the bed was situated with reference to being away from the wall. A. Yes, pulled out from the wall so they could work around the bed. Q. Before he commenced the operation, was there any rubber attachment placed under you? A. Yes, sir. Q. How did you lie, lengthwise or crosswise? A. Crosswise of the bed. Q. Was it just a common ordinary bed? A. Yes, sir. Q. During this operation, what did Mrs. Stanton--what did she do, and where did she sit or stand? A. She stood at my head and fanned me. Q. All the time the doctor was digging around there, an hour and a half? A. Yes, sir. Q. Who was on the other side of the bed where your feet were? A. Mrs. Kohl and my husband. Q. What was Mrs. Kohl and your husband doing? A. Mrs. Kohl was holding one foot up on the bed, and Mr. Woods was holding the other. Q. Mr. Woods was holding one foot up on the bed on one side and Mrs. Kohl on the other? A. Yes, sir. Q. The doctor was in between them, wasn't he? A. Yes, sir. Q. You say the doctor was working with instruments about 1 1/2 hours? A. Yes, sir. Q. After he got through, did you have relief, did these pains cease? A. Yes, sir. The labor pains I had suffered ceased shortly after the doctor got through with the operation. The rubber that they put under me...