Vann,' J.
The deceased was
in extremis,
incapable of acting or deciding for himself, and from the necessity of the case any one was authorized to call a physician to treat him. Without the knowledge or consent of the dying man Dr. Bruso was called for that purpose and for that purpose alone he attended. He found Mr. Meyer, the deceased, in bed in an upper room of a hotel “ suffering intense pain and vomiting.” Meyer told him to get out of the room, that he did not want him there, but he did not leave. He remained to treat him as a physician, and in order to treat him intelligently tried to find out what the matter was. He learned from Meyer, partly in answer to questions and partly through
voluntary disclosures, that he had taken a preparation of arsenic, known as Bough on Bats, “because he wanted to die.” From this information, and from observation of the physical symptoms, he decided that Meyer was suffering from arsenical poisoning. Thus informed as to the nature of the disease, he at once administered a remedy and soon followed it by another. The helpless man, without friends to aid or advise, hopeless of life and courting death, objected and tried to curse him away from his bedside. The doctor, loyal to the instincts of his profession, refused to listen to the ravings of the would-be suicide and continued to prescribe in order to relieve suffering and prolong life. Upon the trial he was not allowed to disclose the information acquired under these circumstances, and we are now to determine- whether there was enough evidence to warrant the trial judge in deciding, as a preliminary question of fact, that such information was acquired “ in attending a patient, in a professional capacity,” and that it “was necessary to enable him to act in that capacity.” (Code Civ. Pro. § 834 ;
Griffiths
v.
Met. St. Ry. Co.,
171 N. Y. 106, 111.)
The learned doctor was called as a physician; He attended as a physician; he made a diagnosis as a physician and he administered remedies as a physician. In all that he did he acted in a professional capacity. While it is true that in all he did he acted against the will and in spite of the remonstrance of a man whose condition imperatively called for professional treatment, still the meeting was professional in nature, and all that he said or did was strictly in the line of his profession. Was the subject any the less “a patient” within the meaning and object of the statute, because he was forced to submit to ministrations designed to save his life ? Was the doctor guilty .of. assault when he_gave the_ hypodermic injection ? Vfas he bomidUo leave him there to die without an effort to help him ? Was the statute designed to protect those only who are treated by consent, but not those treated through necessity ? Does it not mean by “ a patient ” at least one who is consciously treated by a physician even without his consent, when
the facts tend to show that through bodily suffering his mind had partially lost its hold 2 Do our humane laws make it the duty of a physician to leave the bedside of a (lying man, because he demands it, and if he remains and relieves him by physical touch, hold him guilty of assault 2 Either Dr. Bruso was the physician of Mr. Meyer or he committed an assault upon him and was guilty of a crime. If the wife of the deceased had called the doctor she would have acted as an agent by implied authority; the bell boy who in fact called him also acted upon implied authority, and when the doctor came the act of the agent in calling him, if subject to revocation in the actual case, would have been in the supposed case. "While the doctor in either case could have retired, if he remained in either he remained as a physician, the sick man became his patient and he was acting in a professional capacity when, as a duly licensed physician, he actually treated Mr. Meyer as a patient. When one who is sick unto death is in fact treated by a physician as a patient even against his will, he becomes the patient of that physician by operation of law. The same is true of one who is unconscious and unable to speak for himself. If the deceased had been in a comatose state when the physician arrived, the existence of the professional relation could not be questioned. The relation of physician and patient, so far as the statute under consideration is concerned, springs from the fact of professional treatment, independent of the causes which led to such treatment. An examination made in order to prescribe establishes the same relation. I am of opinion that Dr. Bruso, who treated the deceased at the hotel, occupied the same confidential relation to him as did the physicians at the hospital. The fact that the patient told the doctor several times to let him alone as he wished to die, expressing himself in a brutal and profane manner, does not, in my judgment, negative the existence of the relation of physician and patient. As was said by Judge Earl in
Renihan
v.
Dennin
(103 N. Y. 573, 578) : “ Dr. Bontecou was a person duly authorized to practice physic. Whatever information he had about the condition of "the tes
tator lie acquired, while attending him as a patient. It is true that the testator did not call him or procure his attendance, but lie did not thrust himself into his presence or intrude there. He was called by the attending physician and went in liis professional capacity to see the patient, and that was enough to bring the case within the statute. It is quite common for physicians to be summoned by the friends of the patient or even by strangers about him, and the statute would be robbed of much .of its virtue if a physician thus called were to be excluded from its provisions because * * * he was not employed by the patient nor a contract relation created between him and the patient.. To bring the case within the statute it is sufficient that the person attended as a physician upon the patient and obtained his information in that capacity.” So in
People v. Murphy
(101 N. Y. 126) it was held that the fact that the physician was selected and sent by the district attorney to attend the patient, after the commission of a crime against her person, did not affect the question.
When a physician is sent by a prosecuting officer to make a report upon the sanity of a prisoner, if he does not treat or prescribe for the subject, the statements of the latter are not protected
(People
v. Sliney, 137 N. Y. 570) ; but even though a physician is sent for the sole purpose of examining as to sanity, if he prescribes for the prisoner during the visit, the relation of physician and patient is thereby created and the disclosures made are within the statute.
(People
v. Stout, 3 Parker’s Cr. R. 670 ;
Weitz v. Mound City Ry. Co.,
53 Mo. App. 39 ;
Freel
v.
Market St. C. Ry. Co.,
97 Cal. 40 ;
Colorado Fuel & Iron Co.
v.
Cummings,
8 Colo. App. 541. See, also,
Grossman
v.
Supreme Lodge,
6 N. Y. Supp. 821 ;
Grattan
v.
Metro. Life Ins. Co.,
24 Hun, 43 ;
Edington
v.
Mutual Life Ins. Co.,
67 N. Y. 185.) The fact of treatment is the decisive test in this case.
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Vann,' J.
The deceased was
in extremis,
incapable of acting or deciding for himself, and from the necessity of the case any one was authorized to call a physician to treat him. Without the knowledge or consent of the dying man Dr. Bruso was called for that purpose and for that purpose alone he attended. He found Mr. Meyer, the deceased, in bed in an upper room of a hotel “ suffering intense pain and vomiting.” Meyer told him to get out of the room, that he did not want him there, but he did not leave. He remained to treat him as a physician, and in order to treat him intelligently tried to find out what the matter was. He learned from Meyer, partly in answer to questions and partly through
voluntary disclosures, that he had taken a preparation of arsenic, known as Bough on Bats, “because he wanted to die.” From this information, and from observation of the physical symptoms, he decided that Meyer was suffering from arsenical poisoning. Thus informed as to the nature of the disease, he at once administered a remedy and soon followed it by another. The helpless man, without friends to aid or advise, hopeless of life and courting death, objected and tried to curse him away from his bedside. The doctor, loyal to the instincts of his profession, refused to listen to the ravings of the would-be suicide and continued to prescribe in order to relieve suffering and prolong life. Upon the trial he was not allowed to disclose the information acquired under these circumstances, and we are now to determine- whether there was enough evidence to warrant the trial judge in deciding, as a preliminary question of fact, that such information was acquired “ in attending a patient, in a professional capacity,” and that it “was necessary to enable him to act in that capacity.” (Code Civ. Pro. § 834 ;
Griffiths
v.
Met. St. Ry. Co.,
171 N. Y. 106, 111.)
The learned doctor was called as a physician; He attended as a physician; he made a diagnosis as a physician and he administered remedies as a physician. In all that he did he acted in a professional capacity. While it is true that in all he did he acted against the will and in spite of the remonstrance of a man whose condition imperatively called for professional treatment, still the meeting was professional in nature, and all that he said or did was strictly in the line of his profession. Was the subject any the less “a patient” within the meaning and object of the statute, because he was forced to submit to ministrations designed to save his life ? Was the doctor guilty .of. assault when he_gave the_ hypodermic injection ? Vfas he bomidUo leave him there to die without an effort to help him ? Was the statute designed to protect those only who are treated by consent, but not those treated through necessity ? Does it not mean by “ a patient ” at least one who is consciously treated by a physician even without his consent, when
the facts tend to show that through bodily suffering his mind had partially lost its hold 2 Do our humane laws make it the duty of a physician to leave the bedside of a (lying man, because he demands it, and if he remains and relieves him by physical touch, hold him guilty of assault 2 Either Dr. Bruso was the physician of Mr. Meyer or he committed an assault upon him and was guilty of a crime. If the wife of the deceased had called the doctor she would have acted as an agent by implied authority; the bell boy who in fact called him also acted upon implied authority, and when the doctor came the act of the agent in calling him, if subject to revocation in the actual case, would have been in the supposed case. "While the doctor in either case could have retired, if he remained in either he remained as a physician, the sick man became his patient and he was acting in a professional capacity when, as a duly licensed physician, he actually treated Mr. Meyer as a patient. When one who is sick unto death is in fact treated by a physician as a patient even against his will, he becomes the patient of that physician by operation of law. The same is true of one who is unconscious and unable to speak for himself. If the deceased had been in a comatose state when the physician arrived, the existence of the professional relation could not be questioned. The relation of physician and patient, so far as the statute under consideration is concerned, springs from the fact of professional treatment, independent of the causes which led to such treatment. An examination made in order to prescribe establishes the same relation. I am of opinion that Dr. Bruso, who treated the deceased at the hotel, occupied the same confidential relation to him as did the physicians at the hospital. The fact that the patient told the doctor several times to let him alone as he wished to die, expressing himself in a brutal and profane manner, does not, in my judgment, negative the existence of the relation of physician and patient. As was said by Judge Earl in
Renihan
v.
Dennin
(103 N. Y. 573, 578) : “ Dr. Bontecou was a person duly authorized to practice physic. Whatever information he had about the condition of "the tes
tator lie acquired, while attending him as a patient. It is true that the testator did not call him or procure his attendance, but lie did not thrust himself into his presence or intrude there. He was called by the attending physician and went in liis professional capacity to see the patient, and that was enough to bring the case within the statute. It is quite common for physicians to be summoned by the friends of the patient or even by strangers about him, and the statute would be robbed of much .of its virtue if a physician thus called were to be excluded from its provisions because * * * he was not employed by the patient nor a contract relation created between him and the patient.. To bring the case within the statute it is sufficient that the person attended as a physician upon the patient and obtained his information in that capacity.” So in
People v. Murphy
(101 N. Y. 126) it was held that the fact that the physician was selected and sent by the district attorney to attend the patient, after the commission of a crime against her person, did not affect the question.
When a physician is sent by a prosecuting officer to make a report upon the sanity of a prisoner, if he does not treat or prescribe for the subject, the statements of the latter are not protected
(People
v. Sliney, 137 N. Y. 570) ; but even though a physician is sent for the sole purpose of examining as to sanity, if he prescribes for the prisoner during the visit, the relation of physician and patient is thereby created and the disclosures made are within the statute.
(People
v. Stout, 3 Parker’s Cr. R. 670 ;
Weitz v. Mound City Ry. Co.,
53 Mo. App. 39 ;
Freel
v.
Market St. C. Ry. Co.,
97 Cal. 40 ;
Colorado Fuel & Iron Co.
v.
Cummings,
8 Colo. App. 541. See, also,
Grossman
v.
Supreme Lodge,
6 N. Y. Supp. 821 ;
Grattan
v.
Metro. Life Ins. Co.,
24 Hun, 43 ;
Edington
v.
Mutual Life Ins. Co.,
67 N. Y. 185.) The fact of treatment is the decisive test in this case. Meyer was treated by the witness as a physician and answered his questions knowing that he was a physician and that he was about to prescribe for him against his will. As was well said by the learned judges of the Appellate Division: “ The language (of the statute) is broad enough to cover cases of
medical attendance, whether such attendance results from the voluntary call of the patient upon the physician or from the exigencies of the patient’s situation. If the relation is that; of a physician attending a patient in a professional capacity, no matter how the relation was brought about, the sections apply.”
In
Griffiths
v.
Met. St. Ry. Co.
(171 N. Y. 106), relied upon by the appellant, there was no evidence that the physician acted in a professional capacity, or even that the supposed patient knew he was a physician. The doctor in that case testified that at the time he acquired the information he did not “ treat him in any' sense as a physician; ” that his conversation with him did not relate to his physicial condition but was confined “ to the method of the accident and that whatever he said was entirely distinct from any treatment or visit of a physician, or anything of that sort; ” that while he had rendered “first aid” to the plain tiff -in a drug store immediately after the accident when no statement ivas made, “ he did not think the plaintiff knew that he was the physician who ti-eated him at the drug store and that he did not advise him of the fact until after the plaintiff had given him a statement.” Judge Werner, writing for this court, said: “Here there are no facts shown which would warrant the presumption that the relation of physician and patient existed, or that would justify the conclusion that the conversation the doctor was about to give had any relation to professional treatment.”
I think that the statute impresses absolute secrecy upon ail knowledge acquired by a physician in a sickroom that is necessary to enable him to properly treat the sick person, whether the treatment he with or without his consent. While I agree with Judge Gray in his conclusion as to the first question considered by him, I differ as to the last and for the reasons stated vote in favor of affirmance, with costs.