Perry v. Hannagan

241 N.W. 232, 257 Mich. 120, 79 A.L.R. 1127, 1932 Mich. LEXIS 787

• Court: Michigan Supreme Court
• Decided: March 2, 1932
• Docket: Docket No. 181, Calendar No. 35,984.
• Status: Published

Opinions

In my opinion, the testimony of Dr. McIntyre that, when defendant was brought to his office for first aid treatment for the cuts and bruises he had received in the collision, he "noticed an odor of liquor on his breath," was admissible. The statute (3 Comp. Laws 1929, § 14216), quoted by Mr. Justice WIEST, prohibits a physician or surgeon from disclosing —

"any information which he may have acquired in attending any patient in his professional character, and which informationwas necessary to enable him to prescribe for such patient as aphysician, or to do any act for him as a surgeon."

As here applied, the language italicized clearly restricted the information to matters necessary to enable the doctor acting as a surgeon to treat defendant's cuts and bruises. Referring to this language in Campau v. North, 39 Mich. 606,609 (33 Am. Rep. 433), it was said:

"And yet this is one of the fundamental conditions for exclusion which the statute specifies."

No claim is here made that the defendant went to the doctor's office for treatment on account of an intoxicated condition. Two other witnesses who saw the defendant at the scene of the accident testified that his breath smelled of liquor.

In People v. DeFrance, 104 Mich. 563, 570 (28 L.R.A. 139), this court, after stating that "at the common law" information gained by a physician or surgeon while in attendance upon his patient was not privileged, said:

"The purpose of this statute was to throw around such disclosures as the patient is bound to make for the information of his attending physician the cloak of secrecy, and the prime object of the act was to invite confidence in respect to ailments of a secret nature, and the spirit of the act would not include a case where the infirmity was apparent to every one on inspection."

A similar question was before this court in Lincoln v. Cityof Detroit, 101 Mich. 245. The last paragraph of the syllabus reads:

"A physician testified in behalf of the defendant that he made an examination of the plaintiff after he was injured, and was then asked to state whether, at the time of such examination, the plaintiff was under the influence of liquor. The witness declined to answer on the ground of privilege, and was sustained by the court, although no objection was made by the plaintiff to the proposed testimony. And it is held that it was error to exclude the testimony; that the privilege claimed was that of the plaintiff, and not of the witness; and, besides, it did not appear that the information as to plaintiff's condition was necessary in order to enable the physician to prescribe for his ailment."

In Scripps v. Foster, 41 Mich. 742, 748, it was said:

"The object of the statute (2 Comp. Laws [1871], § 5943), is to prevent the abuse of the confidential relation existing between the physician and his patient and is for the protection of the latter. Where the relation is such that no confidence is reposed there is none to be abused."

While I think a liberal construction should be given to the word "necessary" as used in the statute, when considered as a whole, it should not be construed as prohibiting the doctor from testifying as he did in this case.

I concur with Mr. Justice WIEST in his conclusion as to the other questions presented. The judgment is affirmed.

CLARK, C.J., and McDONALD, NORTH, FEAD, and BUTZEL, JJ., concurred with SHARPE, J.