
    Abraham Terier, Respondent, v. Gilbert De Witt Dare, Appellant.
    Third Department,.
    September 28, 1911.
    Physicians — action for malpractice — evidence — privileged communication— waiver of privilege — right of physician to have action defended by medical society.
    In an action against a physician for alleged malpractice in failing properly to treat "a dislocation, it is error to exclude testimony by the defendant as to the nature of a chronic infectious disease for which he had previously treated the plaintiff where he claims that such disease attacked the dislocated joint so that he treated the plaintiff accordingly.
    By bringing the action against his physician the plaintiff waived the privilege otherwise existing as to communications between patient and physician.
    
      In such action it is error to admit in evidence a letter written by the defendant to the plaintiff stating that he belonged to a medical society which defended its members in actions for alleged malpractice, it indicating that he had partial insurance against liability.
    Sewell and Betts, JJ., dissented. .,
    Appeal by the defendant, Gilbert De Witt Dare, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 30th day of December, 1910, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 19th day of December, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      James Taylor Lewis, for the appellant.
    
      John E. Judge and Royal Corbin, for the respondent.
   Kellogg, J.:

The plaintiff has recovered a judgment against his physician for malpractice. He fell from the step's of his house and struck upon his shoulder- and was treated for the injury by the defendant. Plaintiff’s evidence tends to show that his shoulder is dislocated and that he was not properly treated for a dislocation. The doctor had treated the plaintiff for a considerable time before the injury for a chronic infectious disease, and his theory is that the shoulder was not dislocated but bruised, and that infection from the contagious disease attacked the shoulder joint following the bruise, and he treated him accordingly and informed him fully as to his condition. The plaintiff does not substantially deny taking the medicine- prescribed • for the chronic disease, or that the defendant informed him that his trouble was caused by súch disease. I think the judgment is not fairly sustained by the evidence.

The court excluded evidence as to the nature of the. disease for which the defendant had previously treated the plaintiff as a privileged communication between patient and physician, to which the defendant excepted.

It is evident that the defendant could not by experts show to what extent the present condition of the plaintiff might be due to a chronic- disease unless he was able to show what the disease was. By bringing, an action against his regular physician, who had been treating him for a disease, claiming that the subsequent treatment was malpractice, , the plaintiff waived the professional privilege and the defendant was permitted to show any facts he knew bearing upon the present condition of the plaintiff.

In Van Allen v. Gordon (83 Hun, 379) the court says: Had the defendant himself brought an action against the physician, alleging misconduct or malpractice, he doubtless would be deemed to have waived the statute. But we think the interposing of a general denial in an action brought against him cannot bé so treated.” (See, also, Capron v. Douglass, 193 N. Y. 11.)

I think the ruling was prejudicial and. calls for a. reversal of the judgment.

After suit brought the defendant wrote á letter tb the plaintiff, saying in substance, among other things, that the medical society of the State defends its members in actions for alleged malpractice. This letter was offered as evidence and received over the defendant’s objection and exception. The re-examination with reference to the letter developed the fact that by reason of membership in the society the member was entitled to be defended by the attorney of the society in such actions, and to that extent the defendant is insured or indemnified. The letter was not evidence upon any subject before the jury and it could only tend to prejudice the defendant’s case by making the jury believe that the medical society in some way must b'fear a part of the burden of the defense. Perhaps the jury reasoned that if the defense cost the defendant nothing, its verdict against him would not be a very serious burden.

I think the familiar rule in negligence cases excluding evidence that the defendant is insured against liability applies in principle to this case. The letter cannot be said to be an admission of the defendant’s guilt,, as the suit was already pending, but it was an unwise attempt by the defendant to frighten the plaintiff from further' prosecuting the case, not by a false statement, but by a statement which as matter of fact rested upon a substantial basis. Perhaps standing alone this erroneous ruling might not call for a reversal, but, as a new trial is to be had, the error will not occur again.

I favor a reversal of the judgment and order, and a new trial, with costs to the appellant to abide the event.

All concurred, except Sewell and Betts, JJ., dissenting.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  