It was decided nearly one hundred years ago, in the Duchess of Kingston’s case, that a medical man has no privilege to avoid giving in evi­dence any statement made to him by a patient, but that he is bound to disclose, when called upon to do so in a court of justice, every communication, however private and con­fi­dential, which has been made to him by a patient while attending him in a professional capacity (225). This has often been deemed a grievance by medical men, and considered a compulsory breach of pro­fes­sion­al ethics; for the relations between patient and physician, being necessarily of a conf­i­den­tial character, com­mun­i­ca­tions made to a physician are looked upon, by the pro­fes­sion, as confes­sions which should be kept religiously locked in the brain of the physician. Lord Mansfield said, “If a medical man was voluntarily to reveal those secrets, to be sure he would be guilty of a breach of honour and of great indiscretion, but to give that information which by the law of the land he is bound to do will never be imputed to him as any indiscretion whatever” (226).

A French writer says, the tribunals neither ought, nor have they the power, to exact from a physician the revelation of a secret confided to him because of his office; at all events, he may and ought to refuse to tell. Religion, "94" probity, nay, the rights of society, make this the law. Still more are we bound to secrecy when not compelled to disclose. Upon this point casuists and jurisconsults are of one opinion (227).

These communications between physician and patient, which may relate to the history of a transaction in which a wound has been received, or a particular disease communicated, whenever essential to the treatment of the patient’s case, are in some States of the American Union considered privileged communications, which the physician is either expressly forbidden, or not obliged, to reveal. This is the law in Arkansas, California, Indiana, Michigan, Iowa, Missouri, Minnesota, Montana, New York, Ohio and Wisconsin. In Wisconsin he is not compelled, and in the other States named he is not allowed to make the disclosure; but in Minnesota the prohibition extends only to civil cases; and in Iowa, Indiana and Minnesota, the seal can be removed by the patient himself. In these States the confession, in order to be protected against disclosure, must relate exclusively to such matters as are indispensable to the professional treatment of the patient. Communications made outside of this sphere acquire no immunity from having been entrusted to physicians, for at common law such are not deemed privileged, and wherever so recognized they are the creatures of statutory enactment (228).

As stated, in some of the above-mentioned States, the party interested may waive the privilege, in which case the communication may be disclosed (229). But in New York it is expressly enacted that “no person duly authorized to practise physic, or surgery, shall be allowed to disclose any information which he may have acquired in attending any "95" patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon” (230).

Yet, even there, the statute will not be construed so as to shield a person charged with a crime, instead of being a protection to the victim, the patient (231).

The seal upon the physicians lips is not taken away by the patient’s death (232).

Necessarily all communications to be privileged must be of a lawful character, and not against morality or public policy; hence a consultation as to the means of procuring an abortion on another is not privileged; nor, by parity of reason, would any similar conference which was held for the purpose of devising a crime or evading its consequences (233).

It must appear not only that the information was acquired during professional attendance, but was such as was necessary to enable the physician to prescribe. It is for the party objecting to shew that the information sought to be obtained is within the statutory exclusion. “It will not do to extend the rule of exclusion so far as to embarrass the administration of justice. It is not even all information which comes within the letter of the statute which is to be excluded. The exclusion is aimed at confidential communications of a patient to his physician, and also such information as a physician may acquire of secret ailments by an examination of the person of his patient. The policy of the statute is to enable a patient, without danger of exposure, to disclose to his physician all "96" information necessary for his treatment. Its purpose is to invite confidence and to prevent a breach thereof. Suppose a patient has a fever, or a fractured leg or skull, or is a raving maniac, and these ailments are obvious to all about him, may not the physician who is called to attend him testify to these matters?” “Before information sought to be obtained from physicians, witnesses, can be excluded the court must know somewhat of the circumstances under which it was acquired, and must be able to see that it is within both the language and the policy of the law” (234).

A report of the medical officer of an insurance company on the health of a party proposing to insure his life is not privileged from production; nor is the report of a surgeon of a railway company, as to the injuries sustained by a passenger in an accident, unless such a report has been obtained with a view to impending litigation (235).

Representations made by a sick person of the nature and effects of the malady under which he is suffering are receivable as original evidence, whether made to a physician or to any other; though, if made to a physician, they are entitled to greater weight than if made to a man incapable of forming a correct judgment respecting the accuracy of the statements, from unacquaintance with the symptoms of diseases (236). When the bodily or mental feelings of a party are to be proved, his exclamations or expressions indicating present pain or malady are competent evidence (237); and "97" the complaints and statements of the injured party, if made at the very time of the occurrence, are admissible as res gestÆ, not only as to the bodily suffering, but as to the circumstances of the occurrence; and the time in question is not the time of injury, but the time when it is material to prove a condition of bodily or mental suffering, and that may be material for weeks, and perhaps months, after an injury has been inflicted. The statements are admissible even though made after the commencement of an action, though this may be a circumstance to detract from the weight of the evidence of a physician, so far as it was founded on the statements (238). But statements or declarations of a sick or injured person, referring to his state and condition at a time past, and not furnishing evidence of a present existing malady, are to be carefully excluded, whether made to an expert or a non-expert (239), and statements in writing by patients to a medical man, describing the symptoms of the illness upon which the physician has advised the patient, are also inadmissible in evidence (240). It has been said in Illinois, that as a physician must necessarily, in forming his opinion, be, to some extent, guided by what the sick person may have told him in detailing his pains and sufferings, not only the opinion of the expert, founded in part upon such data, is receivable in evidence, but that he may state what the patient said in describing his bodily condition, if said under circumstances which free it from all suspicions of being spoken with reference to future litigation and give it the character of res gestae (241). "98"

On the other hand, in Massachusetts, in an action for personal injuries, a surgeon who had attended plaintiff was held competent to testify as to plaintiff’s condition from what he saw, but not from anything the patient told him (242). A physician testified that the plaintiff stated she had received a blow in the stomach. The Court said that it would clearly have been competent for the physician, after having testified to the plaintiff’s condition and to the complaints and symptoms of pain and sufferings stated by her, to have given his opinion that they were such as might have been expected to follow the infliction of a severe blow. But it was not competent for the physician to testify to her statement that she had received a blow in her stomach (243). And in Tennessee, the statement made by a man when his wounds were being examined, as to who made them, or as to the instrument with which they were inflicted, was deemed inadmissible (244).

Memoranda, although not legal instruments in the proper sense of the term, have been considered as an inferior class of records, and as such entitled to some standing in courts. Such minutes of past facts may be used by experts while under examination, but only to refresh their memory, and not to take its place. For this purpose they may use written entries in note books, or even copies of them, provided always they can swear to the truth of the facts as there stated. Yet, if they can not from recollection speak to the fact any farther than as finding it stated in a written entry, their testimony will amount to nothing. It is not necessary that the writing should have been made by the expert himself, nor even that it should be an original "99" writing, provided, after inspecting it, he can testify to the facts from his own recollection (245).

The English and American authorities agree that medical, or other scientific books, are not competent evidence in courts of law; they cannot be put in evidence, although the medical witnesses state that such books are works of authority in medicine. Tindal, C.J., thought that witnesses might be asked whether in the course of their reading they had found such-and-such a rule laid down; they might be asked how far their opinion was founded on books, and might refer to such books; they might be asked their judgment on the point, and the grounds of it, which may be in some degree founded on these books, as a part of their general knowledge, but the book itself could not be read. And as late as 1875, Mr. Justice Brett refused to allow Taylor’s Medical Jurisprudence to be read to the jury, saying: “That is no evidence in a court of justice. It is a mere statement by a medical man of hearsay facts of cases at which he was, in all probability, not present. I cannot allow it to be read.” And the refusal seems to be the rule in England. And Redfield, C.J., says, that when objected to, these books have not generally been allowed to be read in the United States, either to the Court or jury. And a very recent writer says, “The result of the cases on this subject shews clearly that the very decided weight of authority is against the admissibility in evidence of standard medical treatises.” Such is the rule in England, Ontario, Indiana, Maine, Maryland, Massachusetts, Michigan, North Carolina, Rhode Island and Wisconsin, supported by dicta in California and New Hampshire, and opposed by decisions in Alabama and Iowa (246). "100"

In Iowa and Wisconsin such books have been allowed to be read, the Court in one case remarking, “The opinion of an author, as contained in his works, we regard as better evidence than the mere statement of those opinions by a witness, who testifies as to his recollection of them from former reading. Is not the latter secondary to the former? On the whole, we think it the safest rule to admit standard medical books as evidence of their opinions upon questions of medical skill or practice involved in the treatment.” In Wisconsin, however, the court seems now to have overruled its earlier decisions, and to have sided with the majority (247).

In Illinois, a witness may, to test his knowledge, be cross-examined as to his reading of particular authors upon the subject, and as to whether reputable writers do not entertain certain views upon the subject. Paragraphs from standard authors, treating of the disease in question, may be read to the witness, and he may be asked if he agrees therewith, as one of the means of testing his knowledge; but care should be taken by the court to confine such cross-examination within reasonable limits, and to see that the quotations read are fairly selected so as to present the author’s views. Mr. Rogers questions the wisdom of this decision (248). The witness, however, cannot read from a scientific work in his examination in chief, though he be an expert and agree with the views expressed by the author (249). Nor can a passage from a book be got before a jury as evidence in an indirect manner, when it cannot be read to them. So it was decided where a medical man was asked if he was acquainted with a certain book; he replied, that he had heard of it, but had not read it. He was then asked "101" whether it was considered good authority, and he said it was. He was then asked to read a certain paragraph; this he did, and was re-called. Counsel then read from the book the same paragraph and asked if such a case as that stated was reported. Held to be error (250). And in Ontario it has been held improper to ask medical witnesses, on cross-examination, what books they consider best upon the subject in question, and then to read such books to the jury; but they may be asked whether such books have influenced their opinion (251).

Although, as a rule, scientific books cannot be read to a jury as evidence, they may be read to discredit the testimony of experts, who claim to be familiar with them and refer to them as authority. Where one borrows credit for his accuracy, by referring to books treating of the subject, and by implying that he echoes the standard authorities, the book may be resorted to, to disprove the statement of the witness, and to enable the jury to see that the book does not contain what he says it does, and thus to disparage the witness, and hinder the jury from being imposed upon by a false light (252). It has been held again and again that scientific books cannot be read by counsel to the jury as a part of their argument. Shaw, C.J., of Massachusetts, says, “Facts or opinions cannot be laid before the jury, except by the testimony under oath of persons skilled in such matters.” Again, “where books are thus offered (i. e., to be read in argument), they are, in effect, used as evidence, and the substantial objection is, that they are statements wanting the sanction of an oath; and the statement thus proposed is made by one not present, and not liable to cross-examination. If the same author were cross-examined, and "102" called to state the grounds of his opinions, he might, himself, alter or modify it, and it would be tested by a comparison with the opinions of others. Medical authors, like writers in other departments of science, have their various and conflicting theories, and often defend and sustain them with ingenuity. But as the whole range of medical literature is not open to persons of common experience, a passage may be found in one book favorable to a particular opinion, when, perhaps, the same opinion may have been vigorously contested, and, perhaps, triumphantly overthrown, by other medical authors, but authors whose works would not be likely to be known to counsel or client, or to Court or jury. Besides, medical science has its own nomenclature, its technical terms and words of art, and also common words used in a peculiar manner, distinct from the received meaning in the general use of the language. From these and other causes, persons not versed in medical literature, though having a good knowledge of the general use of the English language, would be in danger, without an interpreter, of misapprehending the true meaning of the author. Whereas a medical witness could not only give the fact of his opinion, and the grounds on which it is formed, with the sanction of his oath, but would also state and explain it in language intelligible to men of common experience. If it be said that no books should be read, except works of good and established authority, the difficulty at once arises as to the question, what constitutes “good authority?” (253).

In an English case, counsel, in addressing the jury, attempted to quote from a work on surgery; Alderson, B., would not allow him, saying, “You surely cannot contend that you may give the book in evidence, and if not, what right have you to quote from it in your address, and do that indirectly which you would not be permitted to do in "103" the ordinary course?” In Massachusetts, North Carolina, Michigan, California and New York, similar decisions have been given (254); and in giving the dissenting opinion in State and Hoyt (255), Loomis, J., said, “Books may be crazy as well as men, and all sorts of theories relative to responsibility for crime are advocated in books. Courts do not take judicial notice of standard medical or scientific works, and the standard works of to-day may not long continue such, owing to new discoveries and advancing knowledge.” In this case the question was as to reading medical books on insanity on trials where the question of insanity arose; the book was Ray’s “Medical Jurisprudence of Insanity.” In a still later case (256), it was held to have been error for the attorney, on the argument, to read to the jury extracts from Browne’s “Medical Jurisprudence of Insanity.” The Court said, that it is peculiarly important that a defendant charged with a crime should be confronted by the expert witnesses against him, and that they should be cross-examined in his presence. But when the opinions of a writer are permitted to go to the jury, the writer is not sworn or cross-examined. If held admissible the question (of insanity) may be tried, not by the testimony, but upon excerpts from works presenting partial views of variant and perhaps contradictory theories (257).

In Connecticut, however, in a murder case the Court (Loomis, J., and Park, C.J., out of the five Judges dissenting,) held, that standard medical works on insanity might be read to the jury by the counsel for the accused, when "104" discussing the question of his insanity. It was said that “in this jurisdiction (that of Connecticut) for a long series of years counsel have been permitted to read to the jury, as a part of their argument upon this part of their case, extracts from such treatises as by the testimony of experts have been accepted by the profession as authority upon that subject, such treatises as have helped to form the opinion expressed by the expert. The practice by repetition has hardened into a rule” (258). In Indiana, it was held that if the extracts were merely argumentative and contained no opinions that could be regarded as properly matters of evidence, they might be admitted, subject to the instructions of the Court as to the law of the case and under the warning that they were not evidence. In Texas and in Delaware, similar decisions have been given (259). And in Ohio, where, at the trial of a cause, counsel was forbidden to read to the jury Youatt’s work on Veterinary Surgery, the Court, on appeal, said, “It is not to be denied, but that a pertinent quotation or extract from a work on science or art, as well as from a classical, historical, or other publication, may, by way of argument or illustration, be not only admissible, but sometimes highly proper, and it would seem to make no difference whether it was repeated by counsel from recollection or read from a book. It would be an abuse of this privilege, however, to make it the pretence of getting improper matter before the jury as evidence in the cause.” As it did not appear that the proposed quotation was relevant or came within the appropriate and legitimate scope of the argument, or that the party was injured by its exclusion, the Court would not reverse on this ground (260). Where the reading is allowed, it seems to be considered “a valuable privilege, yet so susceptible of abuse, that the "105" extent and manner of its exercise must be entrusted in a great measure to the sound discretion of the Court;”—“not a practice ever sanctioned directly or indirectly by the Court, nor one which has generally been considered by the Judges as of binding force in law, but rather as subject to the discretion which, it is true, has been usually exercised in favor of the accused in capital trials” (261).

Where the exclusion rule obtains, counsel in addressing the jury has no right to quote the opinions of medical men as given in their works; if they do, it is the duty of the Court to instruct the jury that such books are not in evidence but theories simply of medical men (262). But there is no question that, under all circumstances, books of science may be read in argument to the Court.

Medical men are often called to give evidence as to dying declarations where there is a charge of homicide, and where the cause of the death of the declarant is the subject of the declaration. They should remember that the declaration will not be admissible unless the deceased was conscious of approaching death and made it under a sense of his impending doom; any hope of recovery, however slight, renders the declaration inadmissible; and the question turns rather upon the expectation of death at the time of making the declaration than upon the interval between it and the death (263).

An entry made by a medical man, in the course of his profession, is admissible in evidence after his death, if it be against his interest; and such an entry will be received as evidence of collateral and independent matter, etc. When "106" the question was as to the age of a child, the book of the accoucheur who attended the mother was produced; it contained an entry as follows, “W. Fowden, Jun.’s, wife; Filius circa hor. 3 post merid. nat. etc. W. Fowden, 1768, April 22. Filius natus wife, £1 6s. 1d.; Pd. 25 Oct. 1768.” The word “Paid” was against the pecuniary interest of the accoucheur, so the entry was admitted to prove the date of the birth (264).

In England the rule is thus laid down as to excluding experts from the room during the examination of witnesses; “medical or other professional witnesses, who are summoned to give scientific opinions upon the circumstances of the case as established by other testimony, will be permitted to remain in court until this particular class of evidence commences, but then, like ordinary witnesses, they will have to withdraw, and to come in one by one, so as to undergo a separate examination.” A similar rule prevails in Scotland and in the United States (265).

It would seem that the court has power to limit the number of experts in any case (266).

Taylor, in his well-known work on “Medical Jurisprudence,” lays down many valuable suggestions for the guidance of medical witnesses; among other things, he says, “In reference to facts, a medical witness must bear in mind that he should not allow his testimony to be influenced by the consequences that may follow from his statement of them, or there probable effect on any case which is under trial. In reference to opinions, their possible influence on the fate of a prisoner should inspire caution in "107" forming them; but, when once formed, they should be honestly and candidly stated, without reference to consequences.” “The questions put on either side should receive direct answers from the medical witness, and his manner should not be perceptibly different whether he is replying to a question put by the counsel for the prosecution, or for the defence.” “The replies should be concise, distinct and audible, and except where explanation may be necessary, they should be confined strictly to the terms of the question.” “Answers to questions should be neither ambiguous, undecided, nor evasive.” “The replies should be made in simple language, free from technicality.” “A medical witness may, without any imputation upon his bona fides, explain medical points to counsel, and correct him on medical subjects, when wrong in his views or statements, but he should avoid even the appearance of prompting counsel in the conduct of the case.”