Woernley v. Electromatic Typewriters, Inc. , 271 N.Y. 228 ( 1936 )

This is an action to recover damages for personal injuries suffered by the plaintiff. The Special Term, on motion of the defendant, made an order that the testimony of a physician, engaged in a sanatorium where plaintiff was treated, should be taken before a referee concerning all the facts relating to plaintiff's physical condition while he was a patient at the sanatorium, and concerning any diseases or injury of which the physician had knowledge, acquired while the plaintiff was a patient there and which existed prior to the commencement of the action. The order was based upon section 354 of the Civil Practice Act, which reads, in part: "* * * In an action for the recovery of damages for a personal injury the testimony of a physician or surgeon, or of a professional or registered nurse attached to any hospital, dispensary or other charitable institution as to information which he acquired in attending a patient in a professional capacity, at such hospital, dispensary or other charitable institution, shall be taken before a referee appointed by a judge of the court in which such action is pending; provided, however, that any judge of such court at any time in his discretion, notwithstanding such deposition, may order that a subpoena issue for the attendance and examination of such physician or surgeon or professional or registered nurse, upon the trial of the action. In such case a copy of the order shall be served together with the subpoena. The provisions of this act and rules relating to depositions of witness taken and to be used within the state apply to the examination of a physician or surgeon or a professional or registered nurse, as prescribed in this section. The waivers herein provided for must be made in open court, on the trial of the action or proceeding, and a paper executed by a party prior to the trial providing for such waiver shall be insufficient as such a waiver. But the attorneys for the respective parties, prior to the trial, may stipulate for such waiver, and the same shall be sufficient therefor."

The Appellate Division modified the order of Special Term by striking out that part which directed the examination of the physician, and that court certified the question: "On this record did the court at Special Term have the power to order the examination of Doctor Bridge?"

For over a hundred years it has been the law in this State that a physician should not be allowed to disclose any information which he acquired in attending a patient in a professional capacity. (2 R.S. [1st ed., 1829] p. 406, § 73; Code Civ. Proc. § 834; Civ. Prac. Act, § 352.)

"Its purpose [Civ. Prac. Act, § 352] is to protect those who are required to consult physicians from the disclosure of secrets imparted to them; to protect the relationship of patient and physician and to prevent physicians from disclosing information which might result in humiliation, embarrassment or disgrace to patients." (Steinberg v. New York Life Ins. Co.,263 N.Y. 45, 48.)

The order here in question expressly provides that the physician to be examined before a referee shall disclose on such examination the facts which section 352 of the Civil Practice Act provides shall not be disclosed by a physician. Section 354 of the Civil Practice Act was never intended to abrogate the provisions of section 352. The enactment of section 352 and the prior statutes covering the same subject apply to disclosures before a referee the same as to disclosures upon a trial in court.

The Legislature has guarded against the violation of section 352 by providing that its protection can only be waived "in open court, on the trial of the action or proceeding."

Section 354 permitting the examination of hospital physicians before a referee was undoubtedly enacted to protect physicians and the institutions where they are engaged from the annoyance of being compelled to attend trials as witnesses. The section extends to them a privilege because of the nature of their services which is not extended to others.

The order of the Appellate Division should be affirmed, with costs, and as applied to the order here in question the certified question should be answered in the negative.