Opinion
Argued May 3, 1922
Decided May 12, 1922
Frederick T. Pierson for appellant.
William MacFarlane for respondent.
Where the plaintiff in an action brought to recover damages for personal injuries caused by the negligence of the defendant describes these injuries and their results and it appears that he has consulted or been treated by a physician in regard to them he waives the protection of section 834 of the Code (now section 352, Civil Practice Act). The physician may then be called by the defendant and examined as to any information acquired by him in the course of such consultation or treatment. The rule as it was formerly understood was altered by our decision in Capron v. Douglass ( 193 N.Y. 11). We there took the position that where the patient tenders to the jury the issue as to his physical condition it must in fairness and justice be held that he has himself waived the obligation of secrecy which would otherwise exist.
The ruling of the trial judge in the case before us, therefore, was erroneous and it was material. The plaintiff gave evidence as to her physical condition after an accident which she claims was caused by the negligence of the defendant. She stated that because of that condition she consulted Dr. Whitney, and described in part at least what occurred at that consultation. Dr. Whitney was called by the defendant who sought to examine him upon the same subject. His evidence was excluded and an exception was taken.
The judgments appealed from should be reversed and a new trial ordered, with costs to abide the event.
HISCOCK, Ch. J., HOGAN, CARDOZO, POUND and MCLAUGHLIN, JJ., concur; CRANE, J., concurs in result.
Judgments reversed, etc.