Bradshaw v. Iowa Methodist Hospital

115 N.W.2d 816, 253 Iowa 1360, 1962 Iowa Sup. LEXIS 748

• Court: Supreme Court of Iowa
• Decided: June 12, 1962
• Docket: 50512
• Status: Published

Opinions

Hays, J.

This is the second appearance of this case in this court. It is an action for damages based upon the alleged negligence of the defendant and in each instance there has been a verdict for the plaintiff. See Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167.

Appellant’s assigned errors include rulings upon admission of testimony on objections based upon section 622.10, Code of Iowa; on causation; on instructions; and excessive verdict.

Briefly, plaintiff asserts he was a patient in defendant-hospital in March 1957, undergoing- physiotherapy treatment following a back operation in October 1956. He asserts that Avhile taking a treatment on March 30, 1957, he was left unattended and sustained a fall which resulted in a permanent disability. More facts will be stated as they may be relevant to the respective alleged errors.

I. Defendant asserts error in the rejection of proffered testimony of Dr. Joseph G. Schupp, and Exhibit Z, being plaintiff’s hospital records Avhile a patient in the Eng-leAVOod Hospital in Chicago betAAreen April 19 and 23, 1957. They Avere rejected upon the plaintiff’s claim of privilege under section 622.10, Code of Iowa.

This section, entitled Communications in professional confidence, provides as follmvs: “No * * ® physician, surgeon * * *, who obtains such information by reason of his employment * * * shall be alloAved, in giving testimony, to disclose any confidential communication properly entrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according- to the usual course of practice * * *. Stick prohibition shall not apply to cases where the party in whose favor the same is made waives the rights conferred.” (Italics ours.) We are chiefly concerned with above italicized portion, it being defendant’s contention that such rights were waived.

Section 622.10 has been in all Iowa Codes since 1851 in substantially its present form. It has been before this court on numerous occasions from Avhieh certain basic rules or constructions have arisen relative thereto. It appears clear both from our oavu decisions and of other jurisdictions that its purpose and intent is based upon the thought that such a right aaúII encourage a patient to make a full and frank disclosure of his ailments to his physician free of any fear of disclosure by the physician, as a Avitness in court proceedings, of information Avhieh might result in his humiliation, embarrassment or disgrace, if such ailments were made public. Pearson v. Butts, 224 Iowa 376, 276 N.W. 65; Newman v. Blom, 249 Iowa 836, 89 N.W.2d 349; 58 Am. Jur., Witnesses, section 420; 97 C. J. S., Witnesses, section 293; McCormick on Evidence, section 101.

It is also generally held that once the relationship of physician and patient is established (.it is so conceded here), the right or privilege thus granted is personal to the patient and only he may claim or waive the same. McConnell v. City of Osage, 80 Iowa 293, 45 N.W. 550, 8 L. R. A. 778; Burgess v. Sims Drug Co., 114 Iowa 275, 86 N.W. 307, 54 L. R. A. 364, 89 Am. St. Rep. 359 ; 58 Am. Jur., Witnesses, section 438. “Communications” as used in the statute means not only what may be said but also information obtained by the physician through personal observation and examination of the patient. Prader v. National Masonic Accident Assn., 95 Iowa 149, 63 N.W. 601; Newman v. Blom, supra, 249 Iowa 836, 89 N.W.2d 349.

While it has been the announced policy of this court to give a liberal construction to the statute to effectuate the purpose thereof, we have in more recent years come to the realization that there is a growing tendency to use it in a manner that tends to obscure the truth from the witness stand and to thwart justice, rather than foster it. Justice Bliss, speaking for the court in Boyles v. Cora, 232 Iowa 822, 848, 849, 6 N.W.2d 401, 414, states:

“This section, with respect to the privileged character of communications by the patient to the doctor, and observations of the latter by the doctor, particularly within the more recent years, has been criticized as having but little justification for its existence, and of effecting great injury to the cause of justice by the suppression of useful truth, the disclosure of which ordinarily could harm no one”, citing Wigmore on Evidence, section 2380, wherein it is said the privilege is not to he hoth a sword and a shield.

Also therein appears the following quote from Epstein v. Pennsylvania R. Co., 250 Mo. 1, 41, 156 S.W. 699, 712, 48 L. R. A., N. S., 394, Ann. Cas. 1915A 423, as follows:

“ ‘It is obvious, the language of the statute is of such sort that its interpretation and application are troublesome. But, because the task is difficult, shall it be made easy by ignoring it ? or by applying the statute automatically to every case and all information ? On the one hand, it might be so construed as to fritter away the provisions of the law. On the other hand, it might be so literally construed as to work great mischief in the administration of justice. The ultimate object of every judicial inquiry is to get at the truth. Therefore, no rule of law standing in the way of getting at the truth should be loosely or mechanically applied. The application of such law must he with discrimination so that it may have the legislative effect intended for it and yet the investigation of the truth he not unnecessarily thwarted.’ ” (Italics ours.)

The statute itself provides that the privilege may be waived but is silent as to how it may be waived. This court has stated that such a waiver may result by the patient’s own testimony, by testimony he may offer by his own physician, or by the testimony of his other witnesses. Woods v. Incorporated Town of Lisbon, 150 Iowa 433, 130 N.W. 372; Jacobs v. City of Cedar Rapids, 181 Iowa 407, 164 N.W. 891. One other observation before getting into the facts of the instant case. In Johnson v. Kinney, 232 Iowa 1016, 1023, 7 N.W.2d 188, 192, 144 A. L. R. 997, we said, “We have frequently said that testimony on cross-examination is not voluntary in the sense that it constitutes a waiver of the statutory privilege”, citing authorities. The opinion does not show what was said on direct examination of the plaintiff but merely that appellee testified on cross-examination. We also have another rule of law dealing with the right of a litigant to cross-examine. In Eno v. Adair County Mutual Ins. Assn., 229 Iowa 249, 257, 294 N.W. 323, 327, we approved the rule that “It is also quite generally held that where the testimony of a witness on direct examination makes a prima facie case, or creates a presumption or inference as to the existence of a fact not directly testified to, the witness may be cross-examined to rebut such prima facie proof, presumption or inference.” (Italics' ours.) See also Witmer v. District Court of Polk County, 155 Iowa 244, 136 N.W. 113; Classman v. Chicago, R. I. & P. Ry., 166 Iowa 254, 147 N.W. 757; Schulte v. Ideal Food Products Co., 203 Iowa 676, 213 N.W. 431; Trachta v. Iowa State Highway Commission, 249 Iowa 374, 86 N.W.2d 849; Wheatley v. Heideman, 251 Iowa 695, 710, 102 N.W.2d 343; 58 Am. Jur., Witnesses, section 632. We think the correct rule as applied .to a waiver under section 622.10 (physician and patient) is that where the patient on direct examination, as his own witness, testified to certain facts such as would bring into effect the rule announced in Eno v. Adair County Mutual Ins. Assn., supra, such testimony creates a waiver of section 622.10 so as to permit competent evidence by his adversary, either by cross-examination or by his own witnesses, to rebut or refute the presumption or inference left by the patient’s direct testimony. Such a rule is not necessarily in conflict with the case of Johnson v. Kinney, supra, and clearly attains justice without nullifying the statute. 97 C. J. S., Witnesses, section 310c.

Now as to the facts of the instant case. Plaintiff, a millwright by trade, testified he was injured in September 1956 by a fall while employed at the Maytag Company in Newton, Iowa. He placed himself in the care of Drs. Joseph Schupp and Neil McGarvey, of Des Moines, Iowa, and was placed in defendant-hospital. They were partners in the practice. .Dr. John Bakody, a neurosurgeon, of Des Moines, was called into consultation and in October 1956 he operated and removed a protruded and degenerated intervertebral disc material at the fifth lumbar level. He also examined at the fourth level and found no injury there. Plaintiff left the hospital about a week later. He continued to receive postoperative treatments under the supervision of the three doctors, Schupp, McGarvey and Bakody. On March 30, 1957, while taking physiotherapy treatments at defendant-hospital, he fell and sustained the injury alleged to have caused his disability. He was released April 4, 1957, in an improved condition. April 18. he went into Chicago, and on the 19th while in a café he stooped to pick up an object from the floor and suffered intense pain in his back and legs. He was taken to Englewood Hospital as an emergency case, where he was treated for four days and released. He returned to Iowa and consulted with Doctor Schupp at least as late as April 30, 1957. He made two trips to the Mayo Clinic in Rochester, Minnesota, and in December 1957 Doctors Johnson and Miller, of the clinic, operated for a ruptured intervertebral disc at the fourth level and a spinal fusion was done. His testimony is replete with statements of his constant pain and suffering, including the Chicago episode.

Doctor Johnson, as his witness, testified as to his condition and the operation. Dr. R. H. Borman, an osteopathic physician, of Des Moines, was his witness. He saw him twice in April 1960. He testified that according’ to the history given him by plaintiff he was in Chicago and had a recurrence of the burning pain of the right calf and was hospitalized in that community for approximately one week. Doctor Bakody also appeared as plaintiff’s witness. He detailed his condition in October 1956 and stated he continued to advise during the convalescent or postoperative period. While it is clear that at no time when Doctor Bakody saw plaintiff was Doctor Schupp or Doctor McGarvey present, it is equally clear that they were in touch with each other with reference to plaintiff’s case.

While plaintiff was a witness and on cross-examination he was asked: “Q. Now referring to your admission to the Englewood Hospital, Mr. Bradshaw — .” The jury was excused and objection under section 622.10 was made to cross-examination on any matters contained in the Englewood Hospital records. It appears counsel had the record before him while cross-examining. The objection was sustained. We think cross-examination on this subject was proper. No records were being offered at that time. Plaintiff, having opened the subject of the Chicago hospitalization for the evident purpose of showing further hospitalization was the effect of the March 30th fall, waived any right to a privilege relative thereto.

Doctor Borman’s testimony went further than that of the plaintiff in that he stated the nature of the treatment that was received at Englewood Hospital. This also constituted a waiver of the privilege by plaintiff in offering such proof. The defendant, in the absence of the jury, offered and read into the record the Englewood Hospital records. It shows that as part of the history it was stated as to how the accident happened: “That he was raising up from a squatting position and something seemed to break in his back. He had had surgery in Des Moines, Iowa, for a slipped disc six months before and wears a corset.” The foregoing, known as Exhibit Z, should have been received in evidence and the refusal constituted error. The records were kept by the custodian thereof and shown to be authentic, made in the usual course of business and the manner of making them. They were not -vulnerable to the objection of hearsay. Ver Steegh v. Flaugh, 251 Iowa 1011, 1018, 103 N.W.2d 718, and authorities cited therein.

As to the offered testimony of Doctor Sehupp — defendant offered to show that Doctor Sehupp was in consultation with Doctor Bakody during the convalescent or postoperative treatment of plaintiff as late as April 30, 1957; that patient told him on that date he was in Chicago and fell and hurt his back again. This was refused as privileged. We think such was competent under the rule announced in 58 Am. Jur., Witnesses, section 457, to the effect that when two or more physicians attend a patient in consultation, the patient’s waiver as to one such physician of the confidential-communication privilege effects a waiver of the privilege as to the other physician. See also Woods v. Incorporated Town of Lisbon, 150 Iowa 433, 130 N.W. 372; 97 C. J. S., Witnesses, section 310d. Plaintiff examined Doctor Bakody as to his relations with him during the convalescent or postoperative period which waives the privilege as to other physicians who worked as a unit with him during the same period. It was error to exclude this proffered testimony.

Perhaps it may be said with some degree of accuracy that we are herein adopting a rule going beyond any of our previous announcements. However, we are determining the case upon its own peculiar facts and do not hesitate to say that in our research we have found no parallel case. Nowhere in the record has plaintiff attempted to keep it a secret from the public, the nature and extent of his physical ailments, which is the real purpose of the statute. He does however attempt to hide behind the statute as to what happened in Chicago some two or three weeks after the fall upon which he predicates his cause of action. He uses the Englewood hospitalization to show a continuation of his continuous pain and suffering since the fall, but bars any facts which might show a subsequent injury to have been the cause or a cause of his present disability. He refuses to accept the bitter with the sweet. To substantiate the above observations we quote from the record as follows: On cross-examination:

“Q. Now, Dr. Bakody, do you know anything about an injury or an accident to Mr. Bradshaw in Chicago in April of 1957?

“Mr. Hawkins: Your Honor, I object to the form of the question, the injury or accident in Chicago. It is not in the record. It will not be in the record. Mr. Cooney knows it will not be in the record.

“Mr. Cooney: I can’t tell that.

“Mr. Hawkins: Mr. Cooney, that is what this lawsuit might be about. * *

In the absence of the jury the question was reframed:

“Mr. Cooney: Dr. Bakody, did you have any exchange of information with either Dr. Schnpp or Dr. MeGarvey with respect to any injury or accident in Chicago sustained by Mr. Bradshaw?” Doctor Bakody answered in the affirmative.

All of this was rejected under section 622.10. It is a clear case of using the privilege as a sword not a shield.

Plaintiff in argument quotes from In re Estate of Hill, 232 Iowa 1000, 1003, 6 N.W.2d 835, 836, as follows: “We have held that where two trials have been had, each resulting in a verdict for the same party, the error which will justify a reversal and a third trial should be so clear as to fully demonstrate that a failure of justice will occur if this court does not again interfere.” We adhere to that statement but say that “a failure of justice” does not mean that upon a retrial a different finding by the jury will result, but that there is a failure of justice when a party litigant has been deprived of a trial in conformity to the laws. This is such a case.

II. Appellant assigns further error in the trial court’s holding that the facts created a jury issue upon the question of causation. The specific objection is that Doctor Borman testified that the March 30th fall was the probable cause of a condition of ill-being he found concerning plaintiff. While we feel the use of such a term is vague and indefinite, yet the record so clearly shows the condition of the plaintiff that no misconception resulted from the use of such words and there is no error in such ruling.

While other errors are assigned we do not feel they merit comment in view of the fact the case must be reversed. — Reversed and remanded.

Larson, Peterson and Snell, JJ., concur. Thornton, J., Garfield, C. J., and Oliver and Thompson, JJ., dissent. Moore, J., takes no part.

The members of this court being equally divided, the judgment of the trial court stands affirmed (section 684.10, Code, 1962).