Page:The Green Bag (1889–1914), Volume 18.pdf/453

 422

THE GREEN BAG

acts and to actions under the employer's lia bility act, but these two statutes have been involved in most of our recent tort litigation. It does not purport to give an exhaustive citation of cases analyzed in accordance with the facts of each, in the manner of many modern books on negligence, but it analyzes clearly such principles as are involved in these cases, especially questions of interpretation, and cites the most recent cases. The book contains much matter not in the first edition and many recent cases not formerly cited. The typographical arrangement is a great aid to clearness. The work maintains the wellknown standard of the first edition and will be very useful to Massachusetts lawyers fin clarifying the confusion of principle that is resulting from the multiplication of modern tort decisions. TORTS (Privacy). An anonymous article on the " Right of Privacy," suggested by a recent Georgia decision contra to the famous New York cass, which refused to recognize any such right, appears in the June Virginia Law Register (V. xii, p. 91). TRADE UNIONS (see Equity). TRUSTS. " Precatory Trusts," by F. P. Betts, Canada Law Journal (V. xlii, p. 369). WITNESSES. " Examination of Witnesses," by Dr. Hans Gross, Criminal Law Journal of India (V. iii, p. 133). WITNESSES (Medical Privilege). " An Abused Privilege," by W. A. Purrington, in the June Columbia Law Review (V. vi, p. 388), criticises especially the New York rule making privileged the testimony of medical witnesses as to information acquired in a professional capacity. He contrasts it with the French law forbidding the disclosure of such con fidences outside of court as well as inside. "There can be no doubt among honorable men that one of a physician's highest duties is to keep sacred not only the intimate knowl edge of his patient's physical condition and affairs acquired in the professional relation,

but especially all that he learned by com munications or observation under the seal of confidence; but it is not his highest duty nor could the law safely allow it to be so considered to abstain from testifying whenever in his judgment an answer would involve a breach of professional confidence. The popular idea that physicians are bound absolutely to keep secret their knowledge of a patient's condition is mistaken: were it true, the obligation would be broken daily." The New York statute has been construed strictly and results in many anomalies. It does not protect the confidences which most deserve to be guarded. One finds few reported cases where the privilege is claimed to cover a secret, but it is usually invoked to win a case and is a conspicuous abuse in personal injury litigation. It has been " suggested that the effort to suppress such evidence would defeat its own purpose by prejudicing jurors. Un fortunately the event does not seem to have borne out the prophecy; for although it has been held that the jury may draw inferences from the failure to produce the attending physician or to exclude his testimony, yet they seem, as a rule, little disposed to do so, entering into the spirit of the game and appreciating the technical success of the advocate who excludes the testimony. The burden of proof seems to be upon those who support a rule designed to suppress the truth that the court is seeking. That burden can only be sustained by showing that in a juris diction where the rule does not obtain the relation between patient and physician is less regarded, that greater injustice prevails in this respect, and that confidence is more often disclosed. For the confusion in judicial opin ions the fault lies not with the courts so much as with the statute. Judges have taken the law as they found it. They have been dom inated by the idea that they were really protecting the innocent secrets of the sick. The fact seems to have been otherwise. It certainly seems desirable that if these statutes be not repealed altogether they should be modified so as not to enable the unscrupulous to suppress in evidence what is no secret outside the court room."