Opinion
No. 30094.
October 10, 1932. Suggestion of Error Overruled November 3, 1932.
1. WITNESSES. In personal injury action, physician who was partner of physician who treated plaintiff held incompetent to testify concerning plaintiff's condition ( Code 1930, section 1536).
Defendant offered testimony of physician who was a partner of the physician who treated plaintiff, as a witness to testify concerning the condition of plaintiff's leg from observation, and as to the nature and character of the injury. The offered testimony was incompetent because, where two physicians are partners, the patients of one are the patients of the firm and are entitled to advice and attention and to the privilege accorded to them by Code 1930, section 1536, rendering the communications between a patient and his physician incompetent as evidence.
2. WITNESSES. Physician who treated plaintiff for former injury to leg held incompetent as witness, where such physician could not segregate knowledge acquired as physician from that learned from contact and association ( Code 1930, section 1536).
Physician who had treated plaintiff for a former injury to the same leg was offered as a witness. It appeared that plaintiff was employed a number of years on the physician's plantation after the first injury, but subsequently left such employment and secured employment from the defendant. The physician was incompetent because he could not segregate his knowledge as a physician from that which he acquired by coming in contact and association with plaintiff while working on the plantation.
3. APPEAL AND ERROR.
Where defendant in personal injury action introduced testimony of competent expert, exclusion of testimony of other physicians could not be prejudicial.
4. EVIDENCE. In personal injury action, trained nurses who attended plaintiff held not qualified to testify as experts regarding nature of plaintiff's injury.
Trained nurses who attended plaintiff and took care of his injuries could not qualify as expert witnesses from mere training given to nurses, since, in order to qualify as experts, there must have been not only training in different diseases and symptoms, but there must have been sufficient practical experience to enable them to discriminate between symptoms and conditions of different diseases.
5. WITNESSES. Nurse who was employee of physician who treated plaintiff for injury to leg held incompetent as witness ( Code 1930, section 1536).
Trained nurse employed by physician who treated plaintiff for injury to leg was incompetent as a witness, because her information and knowledge was gained by being present and assisting the physician in the treatment of the injury and hearing the communications from the plaintiff to the physician, and because her knowledge was a part of the knowledge of the physician himself.
6. WITNESSES.
Nurse employed by physician who treated plaintiff for injury would be competent as witness as to all matters learned when not assisting physician (Code 1930, section 1536).
APPEAL from circuit court of Warren county. HON.E.L. BRIEN, Judge.
Green, Green Jackson, of Jackson, and Hirsh, Dent Sanders, of Vicksburg, for appellant.
A physician is competent to testify as to information acquired from his business relations with a patient, provided such information was not obtained as a physician in charge of a patient.
Dabbs v. Richardson, 137 Miss. 789, 102 So. 769.
It was, likewise, competent to show by Dr. Parsons that the relationship of physician and patient did not exist between him and appellee merely because he was a patient in the Vicksburg Hospital in which he, Dr. Parsons, had an interest and received a portion of the income therefrom. Dr. Parsons was not even permitted to testify as an expert solely and alone on the ground that he was connected with the Vicksburg Hospital and a partner of Dr. Knox, the physician who attended appellee in the hospital. He obtained none of his information from Dr. Knox, but solely from his observations while one of the physicians.
Nurses do not come within the provisions of section 7455, Hemingway's 1927 Code, section 3695, Code of 1906, making all communications made to a physician or surgeon by a patient under his charge or one seeking professional advice privileged. The statute does not extend to nurses. The statute is in derogation of the common law and must be strictly construed, that is, it must be construed so as to limit the privilege to the parties named therein.
Goodman v. Lang, 158 Miss. 209, 130 So. 50.
Under Hemingway's Code 1927, sec. 7452, chiropractors are not physicians, and they are therefore not within privilege of physicians under section 7455, relating to privileged communications.
Kress Company v. Sharp, 156 Miss. 693, 126 So. 650.
The examination which a trained nurse is required to take covers theoretical and practical nursing, anatomy, physiology, bacteriology, materia medica, dietics and hygiene.
Sec. 5638, Code of 1930.
When a nurse has passed successfully an examination dealing with anatomy and bacteriology, of necessity she was cognizant as an expert of those things which would enable her to have testified as to this condition and also to have named it. Her training was such as that she knew what caused the ailment. She was theoretically as competent in her sphere as a physician but would not receive the same confidential communications as would a physician.
A trained nurse in general practice is really just as competent as a physician to say what the real trouble was and we think it was a fundamental and reversible error not to admit their evidence and thereby circumscribe and embarrass the nurses offered so as to prejudice appellant's case before the jury.
Wodkins v. Wodkins, 106 So. 753; Dabbs v. Richardson, 102 So. 769.
Of course there is much that can be observed in business and social intercourse bearing on a person's sanity and the fact that such observations are made by a physician does not disqualify him, provided that his knowledge is not obtained during professional employment.
Dabbs v. Richardson, 137 Miss. 789, 102 So. 769. Brunini Hirsch, Thames Thames, and W.W. Ramsey, all of Vicksburg, for appellee.
Whatever may have been the reason for the enactment of the statute, the statute expressly prohibits a physician from testifying without the consent of the patient. The evidence of a physician ought not to be received before the court, and it is error for the court to proceed upon the idea that the judge and the public may hear the statement of the physician in such case though it be excluded from the jury. In such case the question ought to be directed to ascertaining whether the physician has knowledge by reason of the relation of physician and patient, and if it were so acquired it ought to be excluded.
U.S.F. G. Co. v. Hood, 124 Miss. 548.
If the facts and information were in nowise formed or based upon any information received or obtained while the relation of physician and patient existed the witness can testify, but otherwise he cannot.
Estes v. McGee, 133 Miss. 174.
The facts showed that necessarily a part of his knowledge was obtained by his visits to and treatment of the deceased during the days of last illness, and it was, therefore, within the discretion of the trial judge who has the opportunity to judge of the witness and observe him while he is testifying and during the course of examination to say whether a witness can in fact separate his knowledge acquired in business and in a social way from his knowledge acquired professionally, and that furthermore the witness was not the final and conclusive judge as to whether he could and does separate knowledge acquired professionally from that acquired in a business or social way.
Dabbs v. Richardson, 137 Miss. 789.
A physician who was merely a guest of the attending physician, accompanied the latter while he attended a patient was held within the privilege.
Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S.W. 720.
Information secured by a consulting physician called in by the attending physician is within the privilege.
Rennihan v. Dennin, 103 N.Y. 573, 9 N.E. 320; Prader v. National Masonic Acc. Asso., 95 Iowa, 156, 63 N.W. 601.
The privilege was held to extend to the partner of the attending physician although he did not treat the patient and the relation of physician and patient did not as a fact exist.
Raymond v. R.R. Company, 65 Iowa, 152, 21 N.W. 495; Aetna Ins. Co. v. Dennin, 24 N.E. 86.
The relation of physician and patient exists between the patient and the physician who has cause to make an examination and diagnosis of him in a hospital, as well as outside of a hospital, or whether a pay patient or charity patient and such physician may not deliver his testimony so acquired in open court, or have it written down in so-called reports for consideration as evidence in contravention of our privilege communication statute.
Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455.
The nurse would not be permitted to testify as to what she heard the physician say as that would not only be hearsay, but would be statements of the physician who treated the patient in the hospital, and while this information which the nurse received from the physician may not have been made a record in the hospital records, still the nurse could assist in the evasion of the statute by making notes immediately afterwards of what she learned from the physician.
As with the other privileges, however, the privilege forbids compulsory disclosure by that person only to whom the evidence was extended. It, therefore, does not exempt a third person, overhearing the communication, from testifying to it; except so far as the third person is an agent of the physician.
5 Wigmore on Evidence (2 Ed.), par. 2381.
A nurse as an independent person, receiving medical confidences as such, is not within the privilege; but a person acting as the agent of a physician or surgeon is within the privilege.
5 Wigmore on Evidence (2 Ed.), par. 2382, note.
On the same principle, the privilege extends as in the case of attorneys, to the communications necessarily made to the physician's assistant.
4 Jones, Evidence, page 552, par. 759.
If there is a conversation between the physician in the presence and hearing of a third person, who has no connection with the case, the third person can testify and it has been held that the physician himself can testify as to the conversation on the ground that the patient has in effect waived the statute by conversing in the presence of an independent third person, but that is not true where the other person also occupies a confidential relation towards the patient.
40 Cyc. 2388.
If the physician gained his knowledge in the presence of the wife of the patient, a person nursing the patient, or an assistant of the physician, the latter could not testify.
Cohen v. Continental Life Ins. Co., 41 N.Y.S. 296.
Neither can the disclosure be made by other persons whose intervention is strictly necessary to enable the parties to communicate with each other.
Springer v. Byram, 137 Ind. 15, 36 N.E. 361; North American Union v. Oleshe, 116 N.E. 68.
Neither can the records of attendants be introduced in evidence.
Stalker v. Breeze, 114 N.E. 968; Smart v. Kansas City 208 Mo. 162, 105 S.W. 709; Price v. Standard Company, 90 Minn. 264, 95 N.W. 1118.
To construe the statute in accordance with the contention of appellant would render it inapplicable in all cases where the physician requires the aid of an agent or assistant in treating the patient. This would deprive the privilege of the greater part of its value, by confining its enjoyment to the comparatively rare and unimportant instances where a nurse or assistant is not necessary to aid the physician in treating the patient.
Arizona R.R. Co. v. Clark, 207 Fed. 817.
A different rule prevails where the nurse acts as one of the agents or assistants of the physician in charge. A nurse is often necessarily present at converations between the patient and the doctor with respect to the ailment or condition of a patient and little good would be subserved if the lips of the doctor might be sealed by the statute as to such conversation, but the nurse or attendant might freely testify to all that was said and everything that was done. The purpose of the law is to protect the right of privacy, and while its scope should not be unduly extended, its very intention might be completely thwarted by the admission of testimony from this class of witnesses.
Culver v. Union Pac. R.R. Co., 199 N.W. 740.
Argued orally by R.L. Dent, for appellant, and by J.B. Brunini, for appellee.
Monk Jordan was employed by the Mississippi Power Light Company in connection with the greasing and sanding of a portion of its street car tracks in the city of Vicksburg, and it was his custom to go from place to place on the street cars.
It was alleged by the plaintiff (appellee here), although it was disputed by the defendant's motorman, that Monk Jordan boarded the street car at the corner of Catherine and Poplar streets, a regular stopping place of the cars and a car having stopped there, to go to another place where his work called him, having with him his grease bucket, and that the motorman started the car off with a sudden and violent jerk and threw the plaintiff (Jordan) to the floor and injured his leg; that his leg had been injured a good many years before this accident occurred, but that the injury had healed over and that he had been able, for a number of years, to do his work for the Mississippi Power Light Company; and that the fall, resulting from the sudden jerk of the street car, bruised and injured his leg where the former injury had been, and that he had become totally disabled from further performing his work, and that it was possible that his leg would have to be amputated. His testimony as to how the injury occurred, that is, as to the suddenness of the starting of the street car, was supported by two negro boys who were playing near the track, and who testified in substantiation of Jordan's testimony. He was contradicted by the motorman and a negro woman who was on the car, she testifying that the plaintiff (Jordan), in stooping to put down his tar and bucket of sand, fell while the car was standing still, and that he stated, at the time, that his paralyzed leg gave way under him. The motorman testified that he started the car off gently, heard the fall, and looked around and then stopped the car, helped Jordan to his seat, and that Jordan stated that his paralyzed leg gave way.
The plaintiff (Jordan) testified that he went home after the injury and had his wife dress his leg, and that it was bruised by the fall and was bleeding some; that he went to a physician, and was by the physician sent to the hospital for treatment, where, the following day, the physician took instruments and chiseled or cut out some of the bone of his leg where the former injury was, and where the bruise of the present injury had been inflicted.
It appeared that the former injury had occurred many years ago, and that Jordan, at the time, was treated by one Dr. Johnson; that he was, at the time, for many months in the hospital, that the bones were split, and that it was feared that amputation would be necessary; but, by long treatment, Dr. Johnson prevented amputation, and that, afterwards, the plaintiff was employed a number of years on the plantation of Dr. Johnson, but that some nine years ago, on account of high water or overflow, the plaintiff went to Vicksburg and secured employment from the Mississippi Power Light Company, and from that time continued to perform the duties assigned to him by said appellant company.
The physician, Dr. Knox, who treated him at the time of the present injury, had a partner in practice who did not personally attend the plaintiff, but who visited the hospital and saw him and his condition, and this partner was offered as a witness to testify, as an expert, as to the condition he saw and as to the nature and character of the injury, and to testify that the condition Jordan's leg was then in could not have existed had not the leg been in a bad condition prior to that time.
The court refused to admit the proposed testimony of this partner of Dr. Knox, which constituted one of the assignments of error.
The appellant also offered Dr. Johnson, who had formerly treated Jordan's leg years ago, and attempted to prove by Dr. Johnson the nature and character of the injury, and sought to prove that the leg, during all the time Jordan was on the plantation, was in an unhealed condition and was kept bandaged. It appeared from Dr. Johnson's evidence, as well as from a ruling of the court, that he could not segregate his knowledge as a physician, from that he learned, not as a physician, in contact and association with Jordan. This evidence was also excluded.
It was the theory of the appellant that the injury was what is known as "osteomyolitis," or rotting of the bone, and that this condition had continued from the time of the prior injury to the present time.
The appellant introduced two other physicians as experts, who, from the facts disclosed in the evidence, testified that, in their opinion, the condition of the leg was chronic osteomyolitis, and that it could not have been in that condition except from an injury of long standing, being full of pus. In other words, it was the opinion of these physicians that the leg was in a bad condition, not healed over, at the time of the injury, and that the injury which existed prior to the present injury was chronic, and that pus could not form between the time of the injury and the dressing of the leg at the hospital.
The appellant also offered to prove, by two trained nurses who attended the plaintiff, and attempted to qualify them as experts, that the disease was chronic in character. The court refused to admit them to testify as experts, but permitted them to testify as to the condition of the leg as they saw it, at the time it was dressed. It appears that one of the nurses dressed the injured leg at the time Dr. Knox attended Jordan, and she testified that there was a large hole in the leg and that a large amount of pus was taken from this hole at the time the plaintiff was brought to the hospital, and that this pus was offensive in odor and was yellow or greenish in color. She also testified that a large quantity of gauze was packed into the wound when it was dressed.
It is urged that it was error for the court to refuse to permit these nurses to testify as experts, and that their testimony was not privileged as to any feature of the case.
In our opinion, the physician who was a partner of Dr. Knox was, in contemplation of law, as much the physician of the patient as Dr. Knox, and that it was not competent for him to testify in the case any more than it was for Dr. Knox. Where two physicians are partners, patients are patients of the firm, and are entitled to advice and attention, and to have the privilege accorded by statute applicable to both of them.
Therefore, the court did not err in excluding this testimony.
As to the testimony of Dr. Johnson, it is clear that he could not segregate facts which he learned as a physician from facts learned in a personal capacity. The court correctly ruled that, as he could not so separate the facts in his mind, he was incompetent to testify, having formerly been the physician of Jordan, and having gained an extensive professional knowledge of his condition.
Inasmuch as the appellant secured the testimony of experts competent, whose competency is admitted, before a jury, there could be no prejudice as to the exclusion of the two other physicians who were offered.
The trial court must, necessarily to a large extent, be the judge, from an examination of the physician as to his ability as a physician, to separate knowledge he has obtained professionally from other knowledge. It certainly would be narrowing the purpose of the statute (Code 1930, sec. 1536) to permit a physician to testify as an expert who had attended a patient and who had gained an intimate knowledge of his condition under the confidence of a physician and a patient. In such case, he would, naturally, give testimony as an expert based, to a considerable extent, upon facts gained as the patient's physician. It would be an unsafe experiment in confidential relations to thus hazard or jeopardize such relations by this practice.
As to the testimony of the nurses, we are of the opinion that they did not qualify sufficiently to testify as experts, and could not do so from the mere training given nurses. In order to qualify as experts, there must have been not only training in different diseases and symptoms, but there must have been sufficient practical experience to enable them to discriminate between symptoms and conditions of different diseases.
We have heretofore held that a nurse is not a privileged witness as to what she sees and learns in her contact with patients, or as to communications made to her by patients; but we think where information and knowledge of a nurse are gained by being present and assisting a physician in treatment and hearing communications between the physician and the patient, then her testimony would be incompetent, for the reason that it is a part of the knowledge of the physician himself. A physician, in many cases, must have the assistance of a nurse or another physician where the work must be done quickly and skillfully, and to permit a nurse, under such circumstances, to testify as to facts or communications made to the physician by the patient, would be to annul the statute. As to all matters learned when not assisting a physician, a nurse is a competent witness.
We think the rule to be observed is stated by 5 Wigmore on Evidence (2 Ed.), par. 2381, where he states: "As with the other privileges, however, the privilege forbids compulsory disclosure by that person only to whom the confidence was extended. It, therefore, does not exempt a third person overhearing the communication, from testifying to it, except so far as the third person is an agent of the physician." (Italics supplied.)
So far as the nurse was the agent of the physician in rendering him aid, and her presence being a practical necessity or a great convenience to the physician in the performance of his work, her testimony is no more available than the physician's; but when she learns privately from a patient, she is a competent witness to testify about same.
Wigmore, in the same work, in paragraph 2382, says: "A nurse, as an independent person, receiving medical confidences as such, is not within the privilege; but a nurse acting as the agent of a physician is within the privilege."
See, also, 4 Jones on Evidence, par. 759, p. 552; Cahen v. Continental Life Ins. Co., 41 N.Y. Super. Ct. 296; Springer v. Bryam, 137 Ind. 15, 36 N.E. 361, 23 L.R.A. 244, 45 Am. St. Rep. 159.
The views here expressed are not inconsistent with Goodman v. Lang, 158 Miss. 204, 130 So. 50, wherein the question was about the competency of a nurse as a witness as to whether or not a patient was drunk when brought to the hospital. It was not a decision of a case where a nurse was the assistant of a physician or his helper at a time when he was diagnosing a case or communicating with a patient.
We find no reversible error, and the judgment of the court below is affirmed.
Affirmed.