Opinion
October 25, 1934.
February 1, 1935.
Evidence — Privileged communications — Doctor — Fact of employment — Claim for loss of earnings by doctor in action of trespass — Cross-examination as to patients unable to be attended — Act of June 7, 1907, P.L. 462.
1. Under the Act of June 7, 1907, P.L. 462, it is the communication made by a patient to the doctor which is privileged, and not the fact of employment of the doctor.
2. Where, in an action of trespass for personal injuries, the plaintiff, a physician, testifies that he was unable to practice his profession for a stated period because of the injuries received, and that in consequence thereof he sustained a loss in earnings in a specified total amount, he may properly be cross-examined as to what patients he had been unable to attend during the period in question.
Appeal No. 631, October T., 1934, by defendant from judgment of M.C., Philadelphia County, October T., 1930, No. 519, in the case of John A. Sweeney v. George W. Green, Jr.
Before TREXLER, P.J., KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Reversed.
Trespass for personal injuries. Before BONNIWELL, J., without a jury.
The facts are stated in the opinion of the Superior Court.
Finding for plaintiff in amount of $600 and judgment thereon. Defendant appealed.
Error assigned was ruling on cross-examination of witness.
Richard A. Smith, with him Louis Wagner and Thomas J. Clary, for appellant.
Frank W. Melvin, for appellee.
Argued October 25, 1934.
Plaintiff, a physician, was injured in a collision between his automobile and defendant's truck.
He testified on the trial, held before a judge of the municipal court without a jury, that he was not able to practice his profession, because of injuries received from the collision, for two weeks and three days, and that the earnings which he lost in consequence thereof amounted to three hundred dollars.
He was asked on cross-examination what patients he had been unable to attend during that period. The question was objected to on the ground that the information was privileged; that a doctor could not be asked to name the patients he was attending at the time he sustained an injury; and the trial judge sustained the objection.
There is no such privilege. The Act of June 7, 1907, P.L. 462, only provides that a physician or surgeon shall not be allowed in any civil case to disclose any information acquired by him in attending a patient in a professional capacity, which shall tend to blacken the character of the patient, without the latter's consent. The fact that one has consulted a physician does not tend to blacken his character. It is the communication which is privileged, not the fact of employment. See 5 Wigmore on Evidence, 2d Ed., Sections 2380, 2384, 2386, 2389; Sargent v. Johns, 206 Pa. 386, 55 A. 1051; Beeson v. Beeson, 9 Pa. 279, 302; Phillips' Est., 295 Pa. 349.
The question was relevant and material. Its answer might throw some light on whether the plaintiff had been prevented from visiting patients whom he had been attending at the time of the accident with a consequent actual loss of $300, or that sum was merely an approximation of his loss based on a yearly average and without reference to the plaintiff's visiting list at the time of injury. It affected the question of the damages.
The assignment of error is sustained. The judgment is reversed and a new trial awarded.