Tench, Robert R.

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Evidence: Admissibility of Physician-Patient Communications Under Florida Law

University of Florida Levin College of Law

Florida Law Review Volume 6 Issue 4 Article 9 December 1953 Evidence: Admissibility of Physician-Patient Communications Under Florida Law Robert R. Tench Follow this and additional works at: https://scholarship.law.ufl.edu/flr  Part of the Law Commons Recommended Citation Robert R. Tench, Evidence: Admissibility of Physician-Patient Communications Under Florida Law, 6 Fla. L. Rev. 568 (1953). Available at: https://scholarship.law.ufl.edu/flr/vol6/iss4/9 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. DATE DOWNLOADED: Thu Sep  8 12:09:09 2022SOURCE: Content Downloaded from HeinOnlineCitations:Bluebook 21st ed.			                                                                Robert R. Tench, Evidence: Admissibility of Physician-Patient Communications underFlorida Law, 6 U. FLA. L. REV. 568 (1953).                                           ALWD 7th ed.                                                                         Robert R. Tench, Evidence: Admissibility of Physician-Patient Communications underFlorida Law, 6 U. Fla. L. Rev. 568 (1953).                                           APA 7th ed.                                                                          Tench, R. R. (1953). Evidence: admissibility of physician-patient communicationsunder florida law. University of Florida Law Review, 6(4), 568-569.                  Chicago 17th ed.                                                                     Robert R. Tench, "Evidence: Admissibility of Physician-Patient Communications underFlorida Law," University of Florida Law Review 6, no. 4 (Winter 1953): 568-569       McGill Guide 9th ed.                                                                 Robert R. Tench, "Evidence: Admissibility of Physician-Patient Communications underFlorida Law" (1953) 6:4 U Fla L Rev 568.                                             AGLC 4th ed.                                                                         Robert R. Tench, 'Evidence: Admissibility of Physician-Patient Communications underFlorida Law' (1953) 6(4) University of Florida Law Review 568                        MLA 9th ed.                                                                          Tench, Robert R. "Evidence: Admissibility of Physician-Patient Communications underFlorida Law." University of Florida Law Review, vol. 6, no. 4, Winter 1953, pp.568-569. HeinOnline.                                                                 OSCOLA 4th ed.                                                                       Robert R. Tench, 'Evidence: Admissibility of Physician-Patient Communications underFlorida Law' (1953) 6 U Fla L Rev 568Provided by: University of Florida / Lawton Chiles Legal Information Center-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and    Conditions of the license agreement available at https://heinonline.org/HOL/License-- The search text of this PDF is generated from  uncorrected OCR text.-- To obtain permission to use this article beyond the scope of your  license, please use:Copyright Information1Tench: Evidence: Admissibility of Physician-Patient Communications UnderPublished by UF Law Scholarship Repository, 1953UNIVERSITY OF FLORIDA LAW REVIEWEVIDENCE: ADMISSIBILITY OF PHYSICIAN-PATIENTCOMMUNICATIONS UNDER FLORIDA LAWMorrison v. Mailmquist, 62 So.2d 415 (Fla. 1953)In a personal injury action plaintiff, dissatisfied with the amountof a judgment in her favor, appealed on the ground that certaindamaging testimony should have been excluded. Prior to the acci-dent a physician examined her. His testimony, that she then hadcertain afflictions which she now alleged were caused by defendant'snegligence, was admitted into evidence over plaintiff's objection thatit was privileged. Conceding that physician-patient communicationswere not privileged at common law, plaintiff contended they nowwere under Section 458.16, Florida Statutes 1951.1 HELD, the statutedoes not alter the common law rule as to communications of physiciansand patients but deals with a physician's records only.Unquestionably the privilege did not exist at common law,2 butstatutes providing physician-patient privilege have been enacted inabout one half the states,3 starting with New York in 1828.4 Floridafirst enunciated the common law rule in 1938. 5The Court, in denying appellant's contention of statutory privilege,properly distinguished between the character of a physician's reportsand the testimony of a physician during trial. The purpose of thestatute apparently is to insure that a report on a patient will notbe released without the patient's permission. If the intent of the'FLA. STAT. §458.16 (1951): "Any doctor or other practitioner of any of thehealing sciences making a physical or mental examination of, or administeringtreatment to any person, shall upon request of such person, his guardian, curatoror personal representative in the event of his death, furnish copies of all reportsmade of such examination or treatment. Such reports shall not he furnished toany person other than the patient, his guardian, curator, or personal representative,except upon the written authorization of the patient; provided, however, thatnothing herein shall prevent the furnishing of such reports without such writtenauthorization, to any person, firm or corporation who with the patient's consentshall have procured or furnished such examination or treatment, and wherecompulsory physical examination is made pursuant to §768.09, Florida Statutes, orcourt rule copies of the medical report shall be furnished both the defendant andthe plaintiff."2Duchess of Kingsdon's Trial, 20 How. St. Tr, 273 (1776),38 NVIGMORE, EvMENc E §2380 (3d ed. 1940).42 N.Y. REv. STAT. 406 (1828).5Florida Power and Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911 (1938).2Florida Law Review, Vol. 6, Iss. 4 [1953], Art. 9https://scholarship.law.ufl.edu/flr/vol6/iss4/9CASE COMMENTSLegislature was to modify the common law rule pertaining to phy-sician-patient privilege, clear-cut language demonstrating such purposeshould have been used. The statute, speaking entirely of "reports"and "copies of reports," does not show the requisite intent to modifythe established common law rule. That the reports may be privilegedper se was not considered. The decision was based on the fact thatno analogy may be drawn between a physician's testimony and hisreports on a patient.Section 458.16 may have unfortunate consequences in a proceduralfield not contemplated by the Legislature. Specifically, has the Legisla-ture barred the production of physical and mental reports not takenpursuant to a court order in response to a subpoena duces tecumeither during discovery-deposition proceedings or at the trial? Assumethat A sues B in a personal injury action and B desires to know thephysical condition of A before the accident. Under our statute,6 Bdecides to take the deposition of A's physician for discovery purposesand simultaneously has issued a subpoena duces tecum requiring thatrelevant records on A's medical history be produced. Section 458.16does not permit the physician to produce the reports without thepatient's permission. If A withholds his permission B is limited tothe oral testimony of A's physician testifying from his own knowledge.B must further appreciate that the Florida Court has not been liberalin forcing the production of documents under a subpoena ducestecum. In this instance the Court's argument that A's medical recordis privileged is supported not only by statute but also by legislativehistory. In its initial form the statute contained no exceptions. Itwas amended in the House, however, by adding the words "or courtorder pursuant to statute." sThe Senate deleted the House amendment and passed the act inits present form setting forth specific exceptions to the general rule.9Under a well-recognized canon of statutory interpretation-0 an ef-fective argument can be made that the legislative intent was to insurethe confidential nature of such reports unless the reports are takenpursuant to Section 768.09 or court rule.It therefore appears that an effective weapon in documentary dis-OFLA. STAT. §91.30 (1951).7Atlantic C.L.R.R. v. Allen, 40 So.2d 115 (Fla. 1949).SFLA. H.J. 156 (1951).9FLA. SrN. J. 389 (1951).IOExpressio unius est exclusio alterius.3Tench: Evidence: Admissibility of Physician-Patient Communications UnderPublished by UF Law Scholarship Repository, 1953

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Evidence: Admissibility of Physician-Patient Communications Under Florida Law

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