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compelled, therefore, to hold that the and other subdivisions of the annota: plaintiff, as the personal representa- tion. tive of the deceased, charged with the The reported case (SCHORNICK V. duty of protecting her estate, had the SCHORNICK, ante, 159) is in accord right to waive the privilege granted with the weight of authority in holdby the statute, and that the attend- ing that the heir of the patient might ing physician, under the circum- waive the privilege. The further stances of this case, was a competent point made in the case that the heir witness, and would have been per- had this right of waiver notwithstandmitted to answer the questions." ing the fact that he was the attend

ing physician and that the patient III. Waiver by heirs, devisees, or next

was his father does not appear to have of kin.

arisen in any other case. Under the statutes of many of the In Staunton v. Parker (N. Y.) states the heirs of the patient may supra, it was held, under the statutory waive the protection of the statute as provision relating to privilege of into the privileged nature of informa- formation obtained by a physician tion obtained by an attending physi- unless expressly waived by the pacian of the patient.

tient, that, in a will contest, the priviArizona.-SCHORNICK V. SCHORNICK lege might be waived by the heirs of (reported herewith) ante, 159.

the testator who were contesting the Colorado. – Re Shapter (1906) 35 codicil because of want of testamenColo. 578, 6 L.R.A.(N.S.) 575, 117 Am. tary capacity. The court said that, the St. Rep. 216, 85 Pac. 688.

patient being deceased, the provisions Indiana. Studabaker v. Faylor of the statute could only be waived by (1912) 52 Ind. App. 171, 98 N. E. 318. his representative; that the heirs apBut see cases from this state, infra. peared to be the only representatives

Iowa.-Winters v. Winters (1897) of the deceased; that they succeeded 102 Iowa, 53, 63 Am. St. Rep. 428, to his rights, and were competent to 71 N. W. 184; Barry v. Walker (1910) waive the provisions of the statute. 152 Iowa, 154, 128 N. W. 386. See The decision seems to be contra to the also Kirsher v. Kirsher (1903) 120 rule in this state, under the earlier Iowa, 337, 94 N. W. 846, and Long v. statute, that no one but the patient Garey Invest. Co. (1906) Iowa, himself could waive the privilege. 110 N. W. 26.

See I. supra. Kansas. Fish v. Poorman (1911) It was held in Winters v. Winters 85 Kan. 237, 116 Pac. 898; Bruington (1897) 102 Iowa, 53, 63 Am. St. Rep. v. Wagoner (1917) 100 Kan. 10, 164 428, 71 N. W. 184 (a will contest case), Pac. 1057, rehearing denied in (1917) that an heir might waive the privilege 100 Kan. 439, 164 Pac. 1060; Flack

under a statute providing that certain v. Brewster (1920) 107 Kan, 63, 190

persons, including physicians, should Pac. 616; Craig v. Craig (1923) 112 not be allowed, in giving testimony, Kan. 472, 212 Pac. 72.

to disclose any confidential communiMichigan, — Re Oldenberg (1913)

cation properly intrusted to them in 177 Mich. 150, 142 N. W. 1076 (express their professional capacity, and necesstatute permitting waiver by heirs).

sary and proper to enable them to disMissouri. - Thompson v. Ish (1889) charge the functions of their office, 99 Mo. 160, 17 Am. St. Rep. 552, 12 but that the prohibition should not apS. W. 510.

ply to cases “where the party in whose Nebraska. Re Gray (1911) 88 favor the same are made waives the Neb. 835, 33 L.R.A.(NS.) 319, 130 rights conferred.” The Indiana cases N. W. 746, Ann. Cas. 1912B, 1037. (see decisions from this state, cited

New York. Staunton v. Parker infra) excluding such testimony when (1879) 19 Hun, 55. Later statute ex- offered by an heir, and admitting it pressly provided for waiver by certain when offered by an administrator c. t. classes of persons, including heirs. a., or an executor, were criticized, it See New York cases under IV. infra, being said: "The particular vice in

31 A.L.R.-12.

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the reasoning in these cases, in mak- claiming under the deceased, the ating the distinction between the heir at tending physician may be called as a law and the devisee, is the assumption witness by either party.” that the paper in dispute is the will The above case, to the effect that a of the deceased. The statutes are for physician is a competent witness as to the benefit of the patient while living, the physical and mental condition of and of his estate when dead. The very his patient, whether called by an execpurpose of the contest is to determine utor of the will or by an heir who is whether the deceased in fact made a contesting it, was approved and folwill, who shall be his representative, lowed in Barry v. Walker (1910) 152 and who is entitled to his estate. If Iowa, 154, 128 N. W. 386. And see also he did not have testamentary capacity, Kirsher v. Kirsher (1903) 120 Iowa, then the paper was not his will, and 337, 94 N. W. 846, following, without it is not the policy of the law to main- discussion of the question, the Winters tain such an instrument. It is un- Case. doubtedly the policy of the law to up- In Fish v. Poorman (1911) 85 Kan. hold the testamentary disposition of 237, 116 Pac. 898, it was held that the property, but not until it is ascer- heirs at law of the patient might waive tained whether such a disposition has the privilege of the statute, so that the been made. The same presumptions physician could testify as to her physiare indulged in favor of the validity cal and mental condition at the time of the will as of other written instru- of a conveyance by her, which they ments. The paramount purpose, in the were attacking on the ground of menfirst instance, should be to ascertain tal incompetency and undue influence. whether the instrument presented is To the same effect, holding that not in fact the will of the deceased. And only the patient himself may waive the no one can be said to represent the provisions of the statute making a deceased in that contest, for he could physician incompetent to testify to any only be interested in having the truth knowledge obtained in his professional ascertained, and his estate can only be capacity from his patient, but that, protected by establishing or defeating after the patient's death, the privilege the instrument as the truth so ascer- may be waived by his heirs at law, is tained may require. The testimony of Bruington v. Wagoner (1917) 100 Kan. the attending physician is usually re- 10, 164 Pac. 1057, rehearing denied liable, and often controlling, and to in (1917) 100 Kan. 439, 164 Pac. place it at the disposal of one party to 1060. The statute made a physician such a proceeding, and withhold it or surgeon incompetent to testify from the other, would be manifestly concerning any communication made partial and unjust. Such testimony, to him by his patient with referordinarily, relates to the capacity of ence to any physical disease, etc., or the deceased, and could rarely be per- concerning any knowledge obtained by verted to the injury of character. personal examination of such patient, Should it ever be necessary, the court "without the consent of the patient." might well, in its discretion, prevent The action was to set aside transfers blackening the memory of the dead. of the decedent's property on

the It is not very material to the ground of mental incapacity. result whether we say the heir or dev- So, in Flack v. Brewster (1920) 107 isee may, in the interest of the estate Kan. 63, 190 Pac. 616, where an action of the deceased, waive the privilege, or was brought by heirs of a deceased that the statute does not apply to a grantor, contesting the validity of a case where the proceedings are not ad- deed executed by the grantor to her verse to the estate, and the interest of sister shortly before her death, on the the deceasd as well as his estate could ground of the unsoundness of her mind only be the determination of the truth. at the time the deed was executed, the In either event we hold that in a dis- court held that the heirs might waive pute between the devisee or legal rep- the statutory privilege making a physiresentative and the heir at law, all cian incompetent to testify as to com

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munications made to him by his pa- strued, and, the privilege being pertient in a professional capacity, "with- sonal in its nature, it should not be exout the consent of the patient,” it tended by implication, especially after being said: “It has been held that the the death of the one for whose benefit prohibition of the statute is founded it was given.” on public policy, and unless it has been And in Craig v. Craig (1923) 112 expressly waived by the patient the Kan. 472, 212 Pac. 72, it was held that testimony of the physician can never the objection to the testimony of a be revealed; that a waiver may not be physician in regard to statements made by an executor or administrator; made by his patient was one which that any party to an action can object might be waived by the heirs of the to evidence coming within the prohibi- latter, 'in a contest with strangers to tion unless the patient, the person for the estate. And the court said that whose protection the statute was en- even in a case between heirs at law, acted, has waived the privilege; and where some consented and others obthat when the patient is dead the mat- jected to waiving the privilege, it had ter is forever closed.

In our

been intimated by that court that it state a more liberal view has been would probably hold "against any intaken as to the matter of waiver. For terpretation of rules of evidence which instance, it has been held that, as the limits judicial inquiry in the ascerstatute provides that the patient him- tainment of truth.” The contest in self may consent to the testimony of this instance was between the executor the physician, no question of public and the heir, who opposed probate of policy is involved. The prohibition the will. imposed on the physician is the privi- In Re Oldenberg (1913) 177 Mich. lege of the patient, and not of the 150, 142 N. W. 1076, the court held physician, nor yet of the public, and that any heir at law, proposing or contherefore a patient may make a valid testing the probate of a will, is, for the contract waiving the privilege afforded purpose of waiving the statutory privihim in the statutory prohibition.

lege as to information obtained by an While the privilege is personal to the attending physician, a personal reprepatient and may be waived by him, the sentative of the deceased patient, general rule is that after his death where the statute provided in effect the privilege may be waived by his that no physician should be allowed to legal representative and those inter- disclose any information acquired by ested in the preservation of his estate. him in a professional character, but The plaintiffs herein, who are suing as that after the decease of the patient, the heirs of the deceased, effectually in a contest on the question of admitwaived the privilege by offering the ting the will of the patient to probate, evidence. They were interested in "the heirs at law of such patient, preserving the estate of the deceased, whether proponents or contestants of which would have been largely dimin- his will, shall be deemed to be personal ished if effect had been given to the representatives of such deceased painvalid instrument. The defendant, tient for the purpose of waiving the however, is defending as grantee, and privilege hereinbefore created.” This not as heir or devisee, and in this liti- rule, it will be observed, was applied in gation she stands in the attitude of a a case where the contest was between stranger to the estate. Although she the heirs, it being assumed that the is a sister of the deceased, she is not heirs were both contestants and proasserting any claim by reason of heir- ponents of the will, and the conclusion ship or relationship to the deceased, being nevertheless reached that any and has no greater right to invoke the heir might waive the privilege in such privilege than would an outsider, if a case. the deed had been made to him. Re- Prior to the amendment of the Statstrictions on the full development of ute in 1909, which added the proviso the facts and the ascertainment of the above indicated relating to waiver by truth of a controversy are strictly con- the heirs after decease of the patient,

the court had held, as stated in Re Oldenberg (Mich.) supra, that, in a will contest between a legatee and a contesting heir at law, the latter is not the representative of the deceased, and is an adverse party, with no right to waive the statutory privilege. This was the effect of the decision in Re Mansbach (Mich.), set out under II, d, supra, as construed in the Oldenberg Case.

In Thompson v. Ish (1889) 99 Mo. 160, 17 Am. St. Rep. 552, 12 S. W. 510, the court, in a will contest in which testamentary capacity was in issue, laid down the rule that when the dispute is between the devisee and heirs at law, all claiming under the deceased, either the devisee or heirs may call the attending physician as a witness. The statute provided in effect that a physician should be incompetent to testify concerning any information acquired from a patient while attending him in a professional capacity, without expressly making any provision for waiver. The court considered as analogous the rule applicable in cases of confidential communications between client and attorney, citing authority to the effect that such communications must not be revealed in cases where the rights and interests of a client, or those claiming under him, come in conflict with the rights and interests of third persons, but that this rule does not apply to cases of testamentary disposition of property by the client, the disclosure in such cases not affecting any right or interest of the client, and therefore not being within the reason of the rule.

And the doctrine that when the dispute is between the devisee and heirs at law, all claiming under the deceased, either the devisee or heirs may call the attending physician as a witness, is impliedly approved in Re Shapter (1906) 35 Colo. 578, 6 L.R.A.(N.S.) 575, 117 Am. St. Rep. 216, 85 Pac. 688, in which the court said that the purpose of the statute (which is not set out) in regard to privileged communications made to a physician is to protect the patient. And it was held that the physician of a testator was not incompetent to testify, in a proceed

ing to probate his will, as to facts ascertained in his attendance upon the patient in a professional capacity.

See also Re LeProhon (Me.) under II. a, supra, where the question was as to the right to waive the privilege with respect to testimony of an attorney, but the broad generalization is made that privileged communications may be waived by the personal representative or heirs.

On the other hand, there are decisions denying the right of the heirs of the patient to waive the privilege. See Re Mansbach (Mich.) supra.

Under a statute providing that a physician “cannot, without the consent of his patient,” be examined as to information obtained while attending in a professional capacity, which was necessary to enable him to prescribe, it has been held that an heir attacking the testamentary capacity of a decedent cannot waive the privilege existing between decedent and his attending physician. Re Flint (1893) 100 Cal. 391, 34 Pac. 863. It may be noted that this court, in a later decision, took its stand with those cases which hold that the right of waiver is personal with the patient, and that there can be no waiver after the death of the patient. See Harrison v. Sutter Street R. Co. (Cal.) under I. supra. The court said: “In this case we have no personal representative, and the contest arises between the devişee and the heir. All of the courts concede the privilege does not lapse with death; hence, it is coupled with the evidence when offered at the trial. Who has the power to waive it? Can the heir waive it, as against the objection of the devisee? That is the thing done in this case, and we think the action of the court cannot be sustained. It cannot be said that the heir is representing the deceased, for the heir is attempting to overthrow the will, and offers this evidence of the attending physician, over which the privilege rests, for the very purpose of attacking the mental soundness of the patient. Such is not the representative of the deceased referred to in the various decisions of the courts. This provision of law rests upon a sound public policy. Its object and

purpose is to enable the patient to court said it was generally conceded make a full statement of his physical that heirs may waive the privilege; infirmities to his physician, with the and it was held in this case that, where knowledge that the law recognizes the suit was brought by heirs of a grantor communications as confidential, and to set aside a conveyance on the guards against the possibility of his ground that at the time the deed was feelings being shocked or his reputa- made the grantor was insane, the heirs tion tarnished by their subsequent dis- had waived the privilege of confidenclosure. To him, the considerations tial communications between the granare even more weighty that the privi- tor and her physician, so as to permit lege remain inviolate after he has gone the latter to testify as to information to his grave, for his good name is left gained by him as a physician while behind, deprived of his protecting treating the grantor. care. His rights are not buried in the The doctrine that the right of waiver grave, and heirs and devisees quarrel- is limited to the patient himself was ing among themselves over a division applied in McCaw v. Turner (1921) of his patrimony, in justice to his 126 Miss. 260, 88 So. 705, in which, memory, should not be allowed to under a statute providing in effect waive the privilege."

that all communications made to a And under the authority of the physician by a patient under his above case, it was held in Re Nelson charge are privileged, and that such (1901) 132 Cal. 182, 64 Pac. 294, that physician should not be required to contestants of a will could not, over disclose the same in any legal prothe objection of the opponents of the ceedings, “except at the instance of will, produce as a witness the attend- the patient,” it was held that the ing physician of the testator to show prohibition of the statute could not be testamentary capacity.

waived by the patient's heirs. To the In a contest over a patient's will, it same effect is Auld v. Cathro (1910) has been held that the heirs or dev- 20 N. D. 461, 32 L.R.A. (N.S.) 71, 128 isees who seek to overthrow the will N. W. 1025, Ann. Cas. 1913A, 90. See cannot waive the privilege which exist- this case under I. supra. ed between the attending physician

IV. Necessity of parties uniting in and his patient, under a statute pro

waiver. viding that physicians are not competent witnesses as to matters com

Under the provision of the New

York statute that a physician might municated to them by patients in the

disclose information obtained in a procourse of their professional business,

fessional capacity when the statutory or advice given in such cases. Towles v. McCurdy (1904) 163 Ind. 12, 71 N.

prohibition was waived by the perE. 129; Heuston v. Simpson (1888) 115

sonal representatives of the deceased Ind. 62, 7 Am. St. Rep. 409, 17 N. E.

patient, or, if the validity of the will

of the patient was in question, by 261. The court took the position in the Towles Case that the privilege could

the executor or the surviving husband,

widow, or heir, or next of kin of the be waived only by those who stood in

deceased, or any other party in inthe place of the decedent; and that,

terest, it has been held that it is not when the controversy was among the essential to the waiver that all the perheirs and devisees, the heirs or dev- sons coming within the relations menisees who strove to overthrow the will tioned in the statute should unite in could not, for their own benefit and creating it. Re Murphy (1895) 85 against the wishes of the heirs or dev- Hun, 575, 33 N. Y. Supp. 198. In this isees who desired to sustain it, waive case, which was a will contest, it was the objection to evidence otherwise held that the heirs and next of kin incompetent, to the detriment of the might waive the provisions of the statinterest of those who sought to es- ute against the admissibility of evitablish the will.

dence of a physician based on inforBut in Studabaker v. Faylor (1912) mation obtained in a professional 52 Ind. App. 171, 98 N. E. 318, the capacity, although the evidence offered

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