
    Harpman, Appellant, v. Devine, Recr., Appellee.
    
      (No. 26377
    Decided October 6, 1937.)
    
      
      Mr. Peter B. Betras and Mr. I. Freemom, for appellant.
    
      Mr. William E. Pfau, for appellee.
   Myers, J.

We have for decision the question of whether the testimony of the plaintiff constituted a waiver which would permit admission of a physician’s testimony, otherwise privileged under Section 11494, General Code, reading in part as follows:

“The following persons shall not testify in certain respects:
“An attorney, concerning a communication made to Mm by Ms client in that relation, or his advice to his client; or a physician, concermng a communication made to. him by his patient in that relation, or his advice to Ms patient. But the attorney or the physician may testify by express consent of the client or patient; and if the client or patient voluntarily testifies, the attorney or physician may be compelled to testify on the same subject.”

The Court of Common Pleas ruled the testimony of Dr. Harry Pusselman inadmissible while the Court of Appeals held contrary.

There is no claim that express consent was given by the plaintiff for Dr. Pusselman to testify. That element of the statute may, therefore, at the outset be excluded from consideration. That leaves only the question of a possible waiver.

The “subjects” privileged under the statute are “communications” and “advice.” The relationship between physician and patient is protected and privileged under the law, not for the benefit of the physician but solely for the patient. Since there was no express consent in the instant case, the lips of Dr. Pusselman were sealed under the law unless the plaintiff voluntarily testified respecting any communications or advice from the physician.

We have, therefore, the direct question whether Harpman, the plaintiff, voluntarily testified respecting any relationsMp with Dr. Pusselman that could fall within the purview of “communications” or “advice.”

The only testimony the plaintiff gave respecting Dr. Pusselman is to be found in his answers on cross-examination in response to questions by counsel for defendant. Is such testimony voluntary within the mearnng of the statute? Is it something brought forth “voluntarily” by the plaintiff? He was obliged to answer the questions whether he desired to or not. Whatever was developed respecting Dr. Pusselman in cross-examination was brought out by the defendant. In that cross-examination of the plaintiff, it was counsel for defendant who directed the course of the inquiry. It was counsel for defendant who propounded the subjects of the questions which plaintiff was obliged to answer. The plaintiff had no choice about the matter. He was obliged to answer or be in contempt of court. Obviously, in such a situation the plaintiff did not “voluntarily” testify respecting any “communications” or “advice” from Dr. Fusselman. There was no waiver in the testimony on cross-examination. See Larson v. State, 92 Neb., 24, 137 N. W., 894; Walmer-Roberts v. Hennessey, 191 Iowa, 86, 181 N. W., 798; Packard, Admx., v. Coberly, 147 Wash., 345, 265 P., 1082; and Brayman v. Russell & Pugh Lumber Co., 31 Idaho, 140, 169 P., 932.

In 5 Jones on Evidence, 4191, we find the following:

“Furthermore, it is' held that the testimony of the plaintiff on cross-examination as to communications made to his physician is not voluntary in such sense as to constitute a waiver of his privilege. ’ ’

But the claim of the defendant does not end here. Defendant maintains that when plaintiff, in his direct examination which was voluntary, testified that his health before the time of the accident was good, he thereby testified on a “subject” under the statute in such a manner as to permit the defendant to introduce testimony respecting his health during that period, including the communications, advice and treatment of plaintiff by Dr. Fusselman. It is asserted that when plaintiff testified that his health was good he thereby “opened the door” and waived the privilege accorded bim by the statute. It is claimed that health is a subject that is not only a general term but necessarily includes communications and advice especially in the case at bar. While there is much force in such an argument, such an interpretation would render the statute useless and ineffective in every ease where the plaintiff or patient has testified generally respecting his health. One weakness of snch an argument is illustrated by the manner in wbicb counsel for defendant in the beginning of his brief states the question at issue. He says: “The only question in this case for the consideration of the court is: ‘If the plaintiff in a personal injury suit, voluntarily testifies generally as to his good physical condition at the time of the accident and prior thereto, can he, through his attorney, claim that the testimony of a physician who treated him for an ailment, not loathsome, for a period of six months or more before the accident, is privileged, by virtue of Section 11494 of the General Code?” (Italics ours.) While the issue is more accurately stated later in his brief, counsel for defendant would apparently make a distinction between an ailment which is loathsome and one not so, as in the instant case. But the statute makes no such distinction. The statute is not concerned with any particular kind of ailment, whether loathsome or otherwise, but rather the confidential relationship between physician and patient. The statute limits the “subject” to the relationship in language as follows: “Or a physician concerning a communication made to him by his patient, in that relation, or his advice to his patient.” (Italics ours.) In other words, what the patient has' said to his physician and what the physician has said to the patient is closed to the outside world unless the patient first voluntarily testifies in respect thereto or gives express consent to its revealment. Upon broad grounds of public policy that appears to be the intendment of the statute.

The underlying reasons for the statutes on privileged communications were very well expressed by Justice Pitney in the ease of Arizona & New Mexico Ry. Co. v. Clark, 235 U. S., 669, 676, 59 L. Ed., 415, 35 S. Ct., 210, as follows: “The express object is to exclude the physician’s' testimony, at the patient’s option, respecting knowledge gained at the bedside, in view of the very delicate and confidential nature of the relation between tbe parties. Tbe statute recognizes that they do not stand on equal terms. Tbe patient is more or less suffering from pain or weakness, distracted by it, ignorant of tbe nature or extent of bis injury or illness, driven by necessity to call in a professional adviser, sometimes with little freedom of choice; be relies, perforce, upon tbe physician’s discretion, as well as upon bis skill and experience, and is obliged by tbe circumstances of bis own condition not only to make an explanation of bis ailment or injury, so far as it may be within bis knowledge and may be communicable by word of mouth, but also to submit to the more intimate disclosure involved in a physical examination of bis person. Tbe physician, on tbe other band, is in tbe full possession of bis faculties, and of that knowledge which is power. Manifestly, tbe patient occupies, for tbe time, a dependent position. Tbe chief policy of the statute, as we regard it, is to entourage full and frank disclosures to tbe medical adviser, by relieving tbe patient from tbe fear of embarrassing consequences. Tbe question of dealing justly as between tbe patient and third parties is a secondary consideration.”

In bis direct testimony, being bis voluntary testimony, tbe plaintiff did not even mention Dr. Fusselman, let alone any “communications” or “advice” from tbe physician. ' In 5 Jones on Evidence, 4190, tbe rule is stated as follows: “It is held not a waiver for a party to testify in general terms as to bis physical condition or state of health or tbe nature of bis injuries.” Plaintiff did not voluntarily testify concerning any relationship with Dr. Fusselman. Not having voluntarily testified respecting any “communications” or “advice” from Dr. Fusselman, there was no waiver under tbe statute.

Although for tbe purpose of construction we have referred to tbe underlying reasons for tbe statute, we are not here concerned with tbe wisdom of its enactment. That is for the Legislature. If the. intention had been to include both direct and cross-examination it would have been easy for the Legislature to have left out the word “voluntarily” and to have made the statute read: “But if the patient testifies.” Having used the word “voluntarily” fin the statute, we are obliged to give it the usually accepted meaning.

Two cases relating to communications between attorney and client decided by this court and relied upon by defendant are King v. Barrett, 11 Ohio St., 261, and Spitzer v. Stillings, Exr., 109 Ohio St., 297, 142 N. E., 365. These two eases are distinguishable from the case at bar. The privilege between physician and patient may be waived but the waiver must be distinct and unequivocal. We do not find such a waiver in the case at bar. While statutes in other jurisdictions aré" not in all respects like the Ohio statute, nevertheless the principle regarding a waiver is practically the same. Unless there is either an express consent or unless the patient voluntarily testifies in respect to communications or treatment by the physician the latter will not be permitted to testify. In the instant case the information respecting Dr. Fusselman was elicited from the plaintiff on cross-examination. Such testimony was not voluntary within the purview of the statute. There was, therefore, no waiver of the privilege conferred by Section 11494, General Code. When Dr. Fusselman answered “I don’t know as I have permission to give that. It is under privileged communications,” the trial court under the circumstances properly ruled his testimony could not be given without express consent of the plaintiff.

Judgment of the Court of Appeals' reversed and s that of Court of Common Pleas affirmed.

Matthias, Day and Williams, JJ., concur.

Weygandt, C. J., and Zimmerman, J., dissent.

Gorman, J., not participating.

Matthias, J.,

concurring. The statutory provisions regarding privileged communications are clear and mandatory. In language that cannot be misunderstood, it is there provided that the persons named shall not testify in certain respects and specifically precludes the testimony of “a physician, concerning a communication made to him by his patient in that relation, or his advice to his patient.” The only release from this positive prohibition is that he “may testify by express consent of the * * * patient” or if the “patient voluntarily testifies the * * * physician may be compelled to testify on the same subject.”

The plaintiff did not testify relative to any communication to the physician or relative to any advice from him. Numerous cases are cited in 28 Ruling Case Law, 544, Section 134, in support of the proposition there stated that “A patient does not, by voluntarily testifying as to his condition or ailment, without going into detail, or referring to communications to his physician, waive the privilege of the statute.”

We are concerned only with the construction and application of the provisions of the statute as we find them. Very respectable authority has been cited denouncing similar statutory provisions upon the ground that in some instances' they permit the suppression of available proof with unfair and unjust results. Let it again be stated that the amendment of the statute is a legislative and not a judicial function.

Zimmerman, J.,

dissenting. From a perusal of the record, it is difficult to understand why the jury awarded the plaintiff the sum of $3000, or why the trial court permitted such verdict to stand.

Exaggeration, evasiveness and lack of candor characterized plaintiff’s testimony to a marked degree. If plaintiff received a bump on the back of the head, as he says he did, that, with perhaps an accompanying stiffness of the neck muscles, was the extent of his injury on July 6, 1934. He was able to busy himself immediately with investigating the cause of the broken window, climbing onto the roof of an adjoining building in the process, and police officer Przlomski, who arrived on the scene within a comparatively short time, unequivocally testified that plaintiff told him he “wasn’t hurt.”

Important items comprising-the damages asserted by plaintiff were impairment of health and faculties alleged to have resulted from the injury of July 6, 1934. At the trial he testified that loss of weight, severe and chronic headaches, failing eye-sight, inability to sleep, nervous shock, facial paralysis, muscular contractions in the legs and hands, and inability to walk normally were among the conditions from which he was suffering.

On direct examination plaintiff also maintained his general physical condition had been good prior to July of 1934. On cross-examination he finally admitted treatment by Dr. Harry Fusselman, a physician, preceding the injury.

Plaintiff called as his witness Dr. Samuel ’W. Weaver, a specialist on diseases of the nervous system, who had plaintiff under observation and examination for several days, quite some time after the occurrence of July 6, 1934. He described such examination and, in response to questions by counsel for defendant, gave his diagnosis as combined system disease, having as its basis anemia probably of a pernicious type. On recross-examination Dr. Weaver conceded that every symptom and ailment he discovered in plaintiff could be ascribed solely to the disease of pernicious anemia.

Defendant, in support of the issues on his side of the case, offered Dr. Pusselman as a witness. The doctor testified that plaintiff had called upon him as a patient some nineteen times between December 8, 1933, and July 6, 1934. Bnt when he was asked for what he had treated him, plaintiff’s objection to the question was sustained. Counsel for defendant thereupon noted an exception and stated that if the witness were instructed to answer he would say “the treatment was for pernicious anemia.”

A minority of this court is of the view that the question was both proper and important and that the witness should have been ordered to answer it.

In approaching the problem at hand, careful attention should be given to two matters : (1) the language of Section 11494, General Code of Ohio, relating to privileged communications, and (2) the object sought to be subserved by such a statute, viz., the guarding of patients against the revelation of maladies tending to humiliate, embarrass or disgrace them. Steinberg v. New York Life Ins. Co. (1933), 263 N. Y., 45,188 N. E., 152, 90 A. L. R., 642.

Section 11494, General Code, recites in part:

“But the attorney or physician may testify by express consent of the client or patient; and if the client or patient voluntarily testifies, the attorney or physician may be compelled to testify on the same subject.”

The meaning of the phrase “on the same subject,” appearing in the quoted section, was definitely settled in Spitzer v. Stillings, Exr. (1924), 109 Ohio St., 297, 300, 142 N. E., 365, 366. That case plainly holds such phrase refers to the subject of the controversy — the subject-matter of the client’s or patient’s testimony generally — and cannot be limited or restricted merely to the subject of the communications between client and attorney or patient and physician. Commenting on this topic, the opinion states (109 Ohio St., 301, 142 N. E., 366):

“Counsel * # * insist that the statute should be construed as if it read thus:
“ ‘If the client voluntarily testifies to such communication or advice, the attorney may be compelled to testify on the same subject.’
“Such a construction would be nothing short of judicial legislation, and would be putting into the language of the statute something which the Legislature omitted.”

Plaintiff herein having tendered to the jury the issue as to his general physical condition, and having testified at length on that subject, publicly baring his infirmities for monetary gain, he himself removed the veil of secrecy, and defendant should have had the' benefit of Dr. Fusselman’s testimony. Under these circumstances, defendant was entitled to present and the jury was entitled to have, the whole truth.

To the end that the truth shall be revealed, the general rule in Ohio is that “all persons are competent witnesses except those of unsound mind, and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.” Section 11493, General Code.

At common law, any communication made by a patient to his physician, or any fact ascertained by a physician in the treatment of a patient, was not privileged and the physician could be compelled to disclose the same upon the trial of an action. Statutes placing a limitation upon the operation of the common law are to be strictly construed. 37 Ohio Jurisprudence, 728, Section 408. Such rule has been applied to statutes making communications between physician and patient privileged. Forrest v. Portland Ry. Light & Power Co. (1913), 64 Ore., 240, 129 P., 1048; Armstrong v. Topeka Ry. Co. (1914), 93 Kan., 493, 144 P., 847; Traveler’s Ins. Co. of Hartford v. Rergeron (1928), (C. C. A. 8), 25 F. (2d), 680, 683, 58 A. L. R., 1127, 1134 (Certiorari denied, 278 U. S., 638, 73 L. Ed., 553, 49 S. Ct., 33); Gulf, Mobile & N. R. Co. v. Willis (1934), 171 Miss., 732, 739, 157 So., 899, 901; General Accident, Fire & Life Assur. Co. v. Tibbs (1936), (Ind. App.), 2 N. E. (2d), 229, 232. The majority opinion, therefore, broadens the shield of Section 11494, General Code, to an unwarranted extent, and gives the phrase “on the same subject,” as used in that section, an interpretation which was expressly disapproved in Spitser v. Stillings, supra (109 Ohio St., 297, 142 N. E., 365).

“Where the patient for purposes of gain or advantage discloses the nature and secrets of his malady he renounces his statutory privilege, and opens the door to a full judicial inquiry into the subject-matter of his own importation into the case.” McPherson v. Harvey (1916), (Mo. App.), 183 S. W., 653, 654.

The just and sensible interpretation of a statute very similar to Section 11494, General Code, in line with the previous decisions of the Supreme Court of Ohio on the subject, is found in Roeser v. Pease, (1913), 37 Okla., 222, 131 P., 534, 537, where the court says in the opinion:

“The theory upon which the privilege is based is that a person is entitled to have his physical disabilities protected from public curiosity. If, however, he goes into a court of justice and bases an action upon the existence of a physical disability and testifies himself as to its existence or non-existence, he of course is not entitled longer to claim privilege for his condition, and the statute does not contemplate protecting him in such case.” See Chicago, R. I. & P. Rd. Co. v. Hughes (1917), 64 Okla., 74, 77, 166 P., 411, 413.

Under the terms of the Ohio statute, when in a civil action a patient makes an issue of his general physical condition and testifies in detail on that subject, he thereby waives his privilege — opens the door as it were — and his physician may be compelled to testify on the same subject at the instance of the adverse party. In these circumstances, the situation is the same as if the privileged communication statute did not exist.

Putting it in another way, when a patient voluntarily divulges his corporeal afflictions on the witness stand in open court to serve his own pecuniary ends, any good or sufficient reason for maintaining the silence of the physician who has attended him no longer obtains. The Ohio statute recognizes the logic of this proposition, and provides therefor.

Our position finds support in the following cases: King v. Barrett (1860), 11 Ohio St., 261; Spitzer v. Stillings, supra (109 Ohio St., 297, 142 N. E., 365); Roeser v. Pease, supra, (37 Okla., 222, 131 P., 534, 537); Forrest v. Portland Ry. Light & Power Co., supra (64 Ore., 240, 129 P., 1048); McNamee v. First Natl. Bank of Roseburg (1918), 88 Ore., 636, 641, 172 P., 801, 802 (calling attention to the similarity of the Oregon, Ohio and Oklahoma statutes); McPherson v. Harvey, supra (Mo. App.), (183 S. W., 653); Dahlquist v. Denver & R. G. Rd. Co. (1918), 52 Utah, 438, 447, 174 P., 833, 836 (cited with approval in New York Life Ins. Co. v. Snyder (1927), 116 Ohio St., 693, 702, 158 N. E., 176, 179, 54 A. L. R., 406); Hethier v. Johns (1922), 233 N. Y., 370, 135 N. E., 603; Weissman v. Wells (1924), 306 Mo., 82, 267 S. W., 400; Whitmore v. Herrick (1928), 205 Iowa, 621, 630, 218 N. W., 334, 339; Friesen v. Reimer (1933), 124 Neb., 620, 247 N. W., 561; Lazzell v. Harvey (1935), 174 Okla., 86, 49 P. (2d), 519; Schlarb v. Henderson (1936), (Ind. Sup.), 4 N. E. (2d), 205.

In the case of Arizona & New Mexico Ry. Co. v. Clark (1915), 235 U. S., 669, 59 L. Ed., 415, 35 S. Ct., 210, L. R. A. 1915C, 834, quoted from liberally in the majority opinion, the court had under consideration the privilege communication statute of Arizona, reading as follows:

“Provided, That if a person offer himself as a witness and voluntarily testify with, reference to such communications, that is to be deemed a consent to the examination of such physician or attorney [sic].”

This statute is radically dissimilar in context to the Ohio statute in question. Furthermore, Mr. Justice Hughes, now the Chief Justice of the United States, wrote' a strong dissenting opinion in the Clark case, in which another member of the court joined. Compare Arizona Eastern Bd. Co. v. Matthews (1919), 20 Ariz., 282, 293, 180 P., 159, 164, 7 A. L. R., 1149, 1159.

Almost half a century ago a New York jurist spoke forcefully and to the point in the case of Treanor v. Manhattan Ry. Co. (1891), 16 N. Y., Supp., 536, 538, 28 Abbott’s N. C., 47, 53, 21 Civ. Proc. Rep., 364, 368, when he remarked:

“The thing forbidden by the Code is the disclosure of professional information, and the policy of the enactment is to protect patients in the free revelation of their maladies to the physician. But what if, in order to enforce a claim against a stranger, the patient himself promulgates the information, and uncovers his maladies and infirmities in court, does he not thereby break the seal of secrecy, and absolve the physician from the obligation of silence? Does he not, in the strictest and.most emphatic sense, waive his privilege? Is it to be tolerated that, to mulct another in damages, he may inflame a jury with a false and exaggerated story of his injuries and suffering, and yet the physician whom he has consulted is not to be allowed to prevent the meditated injustice by a truthful statement of the case?”

In 5 Wigmore on Evidence (2 Ed.), 223, Section 2389, the distinguished author says, in his typically vehement style:

“Certainly it is a spectacle fit to increase the layman’s traditional contempt for the chicanery of the law, when a plaintiff describes at length to the jury and a crowded court room the details of his supposed ailment and then neatly suppresses the available proof of his falsities by wielding a weapon nominally termed privilege.”

.Consequently, in our opinion, the judgment of the Court of Appeals should be affirmed.

Weygandt, C. J., concurs in the foregoing dissenting opinion.  