Woods v. Incorporated Town of Lisbon
| Decision Date | 15 March 1911 |
| Parties | MAY WOODS v. INCORPORATED TOWN OF LISBON, Appellant |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. 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.
OPINION
This is the second appeal in this case. The opinion on the first appeal is reported in 138 Iowa 402, 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, section 4608), so far as material here, is as follows: 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, as the statute expressly provides, and 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 can not 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 A.D. 272 (110 N.Y.S. 657); Marx v. Manhattan Ry. Co., 56 Hun 575 (10 N.Y.S. 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; People v. Gallagher, 75 Mich. 512 (42 N.W. 1063); Hunt v. Blackburn, 128 U.S. 464 (9 S.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 fifteen or twenty minutes. He spent about fifteen 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 operation was performed. Q. Tell 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 nine or ten 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 one and one-half 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 extended down over the side of the bed and dropped down nearly to the floor. Q. When it came over the bed and dropped down, where it formed a kind of trough to carry the matter that came from you? A. Yes. The bed was just an ordinary bed about three feet high.
Plaintiff also went into the details of her treatment by Dr. York at the house with other witnesses. Counsel seek to avoid the effect of the ruling excluding Dr. York's testimony as to his treatment of the plaintiff at her home by the claim that the questions asked him did not relate to any matter testified to by the plaintiff. Dr. York was asked if he removed a foetus from the plaintiff at the time, and if he performed such an operation as the plaintiff described and removed a foetus from her. In both instances objection was made that the doctor was an incompetent witness under the statute. The plaintiff pleaded that her fall produced a miscarriage, and all of her testimony as to the character and extent of her injury tended in the same direction. Her testimony as to the nature of the operation performed by Dr. York and its results was intended to make the jury believe that a foetus was taken from her at that time, nor did she make any claim in her testimony that she was relieved of it at any other time or place. Dr. York was a competent witness, and the error in rejecting his testimony was highly prejudicial, for the nature and extent of the plaintiff's injury was of great importance to the defendant.
Perhaps a more doubtful question is presented by the rejection of both Drs. York and Crawford as witnesses relative to the operation in the hospital. The plaintiff herself testified on the subject as follows:
On Wednesday following the Sunday I claim I had a miscarriage, a large...
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