Clawson v. Walgreen Drug Co. , 108 Utah 577 ( 1945 )

I dissent from what is said in the prevailing opinion as to two questions. First, as to submitting the question of loss of earning capacity to the jury, and second as to the exclusion of the offered testimony of Drs. Dumke and West, and third as to instruction with reference to a fence or guard rail on the south side of the trap door. As to all other matters discussed by Mr. Justice Wade, I concur.

As to the question of loss of earning capacity, I do not see how the jury could consider such loss as an element of damage without some evidence as to what the earning capacity was before the accident. A twenty-five per cent or a fifty per cent loss of nothing is nothing. Without some evidence as to what the earning capacity was, the proportions of loss could not be converted into terms of dollars.

With regard to the holding as to the exclusion of the offered testimony of Drs. Dumke and West, I think that Section 104-49-3, U.C.A. 1943, was never intended to be as broad as its application in the instant case, and I find no opinion of this court extending it to that width. I confess that such construction may be inferred from some language in earlier cases, but a question like that now presented was not there involved. The purpose of all the so-called "privilege testimony statutes" is to preserve the confidential relations which should exist between the persons covered by the statute, so each party to such relationship may freely communicate, or otherwise supply to the other, all information necessary or pertinent to enable the parties effectively to achieve the purposes for which the relationship is set up. The statute was not intended to put any party to litigation in an advantageous nor in a disadvantageous position. The statute under conisderation begins:

"There are particular relations in which it is the policy of the law to encourage confidence and preserve it inviolate." (Italics added.)

As such relationships it enumerates husband and wife; attorney and client; clergyman or priest and church member; physician and patient; public officer and informant. But in none of the relationships is the bar all inclusive. It interdicts testimony only as to certain specified types of information. As to the relationship of husband and wife, the bar against testifying is absolute during the marital status except in a proceeding where the parties are adverse. After termination of the marital status, the bar continues only as communications made by one to the other. Except as to communications, there is no bar as to disclosing any fact, after the termination of the relationship. As to attorney and client, the bar goes only to communications made by the client, and advice given by the attorney. But the lips of the attorney's office help are sealed as to any fact of which he acquired knowledge by virtue of his employment. It appears the attorney may testify as to any fact of which he has knowledge not acquired by communication from his client. The clergical relation bars only information obtained in confessions (communications) and then only where such confessions are enjoined upon the confessor by course of church practice or discipline. The injunction against the public officer is limited to communications, and then only when the public interest would suffer by the disclosure. After the termination of the confidential relationship the interdiction in the case of these four relationships goes only to communications made during the relationship. "Communication" is not limited to oral speech but is limited to information imparted because of the relationship for the purpose of achieving the objects of the relationship.

The prohibition against the physician is "as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient." By the opening paragraph of the section the purpose of this injunction is "to encourage confidence" between the patient and the physician. Bear in mind that the statute does not seal the mouth of the physician against disclosing any information he receives from or about his patient. As far as the statute goes the physician may talk "from Dan to Beersheba" and to every Tom, Dick and Harry on the street. The statute merely seals his lips, against testifying in a civil action. So where there is control over the matters that could be narrated, and the physician is limited and confined to such facts as are pertinent and material, relevant and competent in determining the truth with respect to an important issue as to a question of right between two parties, we impose a bar on the physician, but telling him in effect that he can go out on the street and broadcast without limitations the chaff with the wheat. And this anomaly is upon the ground that the law encourages confidences. By subdivision (4) it seems evident this confidence is favored to encourage and permit the patient freely to impart to the doctor any information which is necessary, or will be helpful, to the physician in prescribing or acting for the patient. It is so favored to keep the patient from feeling the necessity of withholding from the physician information which would be helpful in the treatment of the patient. It is so privileged to assure the patient that he need not withhold from his physician information which the patient might feel would be embarrassing or detrimental to his peace of mind, or social or economic standing or repute if it should be publicly known. But the embarrassment, chagrin or ridicule or disgrace guarded against must be such as would result from the fact itself and not from a question as to the patient's veracity. The purpose of the statute is to encour-the confidence that will assure the physician acquiring all necessary information from the patient, and not to enable the patient to conceal all facts in a dispute as to the extent of his injuries. Only such information as would perhaps not have been disclosed to the physician had the privilege not existed should be considered as privileged, because only such information can be considered as within the policy of the law to encourage confidence.

Bear in mind that the policy of the law as it now stands is not to seal the lips of the physician as to all information he obtains in a professional relationship with his client. This statute was enacted long before statehood. It appears in the Laws of Utah 1888, Section 3878, and has remained unchanged since that time. In 1917 the state enacted a Workman's Compensation Law, and vested the Industrial Commission with the power to determine disputes with regard to injuries received in employment. And before the Industrial Commission there is no privileged communication. The physician may and often does testify freely as to any information he has, even as to what the patient told him. These are public hearings and are made matters of records. The claim of privilege cannot be urged. Under the rule as applied in the majority opinion if A, an employee of B, is injured by a third party C, and A elects to claim compensation from B, A's physician may testify as to any information he has respecting A or his injuries, without limitation because of the privilege statute; but if A elects to sue C for damages, the mouth of the physician is closed under the privilege statute, even though the same question is involved, to wit, the nature, extent and result of A's injuries, and the reasons causing the ultimate result.

As indicated in the beginning of this opinion, the cases heretofore decided in this jurisdiction have lent color to an application of the statute as broadly as is done in the opinion of Mr. Justice Wade. But I think such holdings went beyond the purpose and purport of the statute, were to that extent judicial legislation and should be judicially repealed. Most all the writers on evidence, while recognizing that the majority of the cases lay down the rule as does Mr. Justice Wade, criticize it. 5 Wigmore, Evidence, 2d Ed. (1923) § 2380 et seq.; 1 Greenleaf, Evidence, 16th Ed. (1899) § 247a; 5 Jones Commentaries on Evidence, 2d Ed. (1926); Purrington, An Abused Privilege (1906), 6 Col. L. Rev. 375.

The social policy behind such evidence seems to be greatly overshadowed by the injustices which too often result from suppression of relevant evidence. An article in 13 Wash. L. Rev. 143 points out that any rule which shuts out the truth as this does should only be recognized when considerations of policy very clearly require it. Prof. Wigmore phrases it in 5 Wigmore, Evidence 2d 1923) Sec. 2380, p. 209:

"Certainly it is that the practical employment of the privilege has come to mean little but the suppression of useful truth — truth which ought to have been disclosed and would never have been suppressed for the sake of any inherent repugnancy in the medical facts involved."

For other law review articles discussing this subject, see 33 Ill. L. Rev. 483; 53 Harv. L. Rev. 1204, 1205; 25 Calif. L. Rev. 108; 28 Calif. L. Rev. 391; 20 Calif. L. Rev. 302; 9 Calif. L. Rev. 149; 5 Calif. L. Rev. 446; 13 BULR 846; 13 Miss. L.J. 137.

"As to the policy of the privilege, and of extending it, there can only be condemnation. The chief classes of litigation in which it is invoked are actions on policies of life insurance, where the deceased's misrepresentations as to health are involved; actions for corporal injuries, where the plaintiff's bodily condition is to be ascertained; and testamentary actions, where the testator's mental condition is in issue. In all of these cases the medical testimony is `the most vital and reliable,' `the most important and decisive,' and is absolutely needed for purposes of learning the truth. In none of them is there any reason for the party to conceal the facts except to perpetrate a fraud upon the opposing party, and in the first two of these classes the advancement of fraudulent claims is notoriously common. In none of these cases need there be any fear that the absence of the privilege will subjectively hinder people from consulting physicians freely (which is, as we have seen, the true reason for maintaining the privilege for clients of attorneys); the injured person would still seek medical aid, the insured person would still submit to a medical examination, the dying testator would still summon physicians to his cure. In litigation about wills, policies, and personal injuries, the privilege, where it exists, is known in practice to be a serious obstacle to the ascertainment of truth and a useful weapon for those interested in suppressing it. Any extension of it to other jurisdictions is to be earnestly deprecated." 1 Greenleaf on Evidence, 16th Ed., p. 385, 386.

Some courts have held that from the fact that the privilege rule is invoked against the physician testifying as facts material to the trial of the issues, an inference may be drawn that the offered testimony would be adverse. Killings v.Metropolitan Life Ins. Co., 187 Miss. 265, 192 So. 577, 131 A.L.R. 684, where an instruction to that effect was held proper. Also see Note 33, Ill. Law Review 483. Griggs v. Saginaw Flint R. Co., 196 Mich. 258, 162 N.W. 960; Deutschmann v.Third Ave. R. Co., 87 A.D. 503, 84 N.Y.S. 887; 17 Harvard Law Review 359; Porter v. Chicago, B. Q.R. Co.,325 Mo. 381, 28 S.W.2d 1035.

As to the instruction referred to as the third point of difference, I agree with Mr. Justice Wolfe. Because I think the rulings on these three matters were prejudicial error, the judgment should be reversed and a new trial ordered.