Page:The Law and the Doctor Vol 2 - The Physician as Witness.djvu/26

20 The acts of the different States differ somewhat in their expression. The words of the act of New York describing the matter protected are: "any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." Most of the other States have adopted these same words, or words to the same general effect. These words are construed by the courts to include not only information communicated by the patient to the physician by word of mouth, but information regarding the patient's condition which he may otherwise obtain. Mr. Justice Miller, in expressing his view of the meaning of this statute said:

The States of Indiana, Iowa, Nebraska, Ohio and Wyoming have not followed the words of the New York act, but have provided that physicians shall not disclose matter "communicated" to them by their patients, or shall not disclose any "communication," etc. While it would seem at first glance these acts were intended to protect only such matter as was communicated to the physician by statement of the patient, yet, it seems, the legislature, in making use of the expression employed, intended no other effect than that of the New York act at least, so it has been held by the courts of Indiana and Iowa.

The limitation that the information shall be "necessary to enable him to act in that capacity" has given rise to some conflict of authority. One line of decisions has been rendered holding that the information to be protected must have a direct bearing upon the condition for which the physician is attending the patient; that information as to the time of receiving a rupture for which the physician was treating the patient was not "necessary to enable" him to act for the patient; that the obvious objective appearance of the patient, the inflamed face, the blood-shot eye, the fumes of alcohol, did not constitute information of the character protected by the statute. The other and later line of decisions, which, it