Covers cases on the physician-patient privilege—waiver and on hearsay—business records exception—hospital records—scope of admissible matter

Fryer, Douglas M.

English

UW Law Digital Commons (University of Washington)

Washington Law Review Volume 33 Number 2 Washington Case Law—1957 7-1-1958 Evidence Douglas M. Fryer Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr  Part of the Evidence Commons Recommended Citation Douglas M. Fryer, Washington Case Law, Evidence, 33 Wash. L. Rev. & St. B.J. 156 (1958). Available at: https://digitalcommons.law.uw.edu/wlr/vol33/iss2/10 This Washington Case Law is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. WASHINGTON LAW REVIEWEVIDENCEPhysician-Patient Privilege-Waiver. In the recent case of Randav. Bear,' respondent Bear, sued by the assignee of a hospital whichhad treated her for hypertension, cross-complained against the appel-lant Grays Harbor County Medical Bureau on the ground that underher contract with the Bureau it was liable for the charges. The partiesstipulated as to the fact of treatment, the necessity therefor, and thereasonableness of the charges; but when in defense the Bureau madean offer of proof by the respondent's doctor, the hospital records, andthe testimony of respondent herself that the ailment treated antedatedthe service contract, and hence was not covered by its terms. Respond-ent objected on the ground that the proffered testimony violated thephysician-patient privilege.' The trial court sustained the objectionand entered judgment for the stipulated amount against the Bureau.On appeal the supreme court granted a new trial and held that theappellant should have been allowed to present its defense, since thefiling of the cross-complaint waived the physician-patient privilege.There was no physician-patient privilege regarding confidential com-munications at common law.' The purpose of the statute creating theprivilege is to encourage the patient to more freely disclose the symp-toms of his illnesses and injuries without fear that the physician mightreveal the communications in court.' Thus, the legislature has regardedthat the slight possibility that certain symptoms might not be disclosedto a doctor because of this fear outweighs the court's search for truthand justice. The utility of such a statute rests upon very narrowgrounds. The only type of condition that is commonly felt to beembarrassing is one which society considers immoral, such as an ille-gitimate pregnancy or a venereal disease.6 The privilege has becomea potent weapon in the hands of a plaintiff seeking to recover for analleged injury or illness, and the manifest unfairness of it has led thecourts to find a waiver in cases where it was abused.' Actual testimony± 50 Wn.2d 415, 312 P.2d 640 (1957).2 RCW 5.60.060 (4) : "A regular physician or surgeon shall not, without the consentof his patient, be examined in a civil action as to any information acquired in attendingsuch patient, which was necessary to enable him to prescribe or act for the patient."8 Duchess of Kingston's Trial, 20 How. St. Tr. 573. Lord Mansfield: "If a surgeonwas voluntarily to reveal these secrets, to be sure he would be guilty of a breach ofhonour, and of great indiscretion; but, to give that information in a court of justice,which by the law of the land he is bound to do, will never be imputed to him as anyindiscretion whatever."4 Note 2 supra.5 8 WIGmoRE, EVIDENCE, 3rd Ed., § 2380a, P. 810.6 Note 5 supra.7 RCW 5.60.060 (4) : "A regular physician or surgeon shall not, without the consent[SUMMER1V9]WSHINGTON CASE LA W-1957concerning the injury is a more typical form of waiver as found by thecourts than is commencement of the action. In Noelle v. HoquiamLumber & Skingle Co.,' where the plaintiff had testified as to hisinjuries without referring to what his physician had told him, the courtheld there was no waiver of the privilege. The Randa case mentionsthat this case is no longer the law in Washington.9 In McUne v.Fuqua,"° also an action to recover for personal injuries, it was held thatplaintiff's testimony and that of certain physicians called by himwaived the privilege as to that injury."The weight of authority holds that the commencement of an actionin which the plaintiff's illness or injury is an issue is not a waiver. 2This view will allow a plaintiff to bring an action to recover for aninjury, which he will allege is serious, and at the same time deny thedefendant the opportunity to show that there is no injury or that theinjury is less serious than claimed, because the disclosure would betoo embarrassing to the plaintiff to be allowed in open court." Tworecent New York cases hold to the contrary. 4of his patient, be examined..." (emphasis added). In re Quick, 161 Wash. 537, 297Pac. 198 (1931). (Two physicians involved, both treated deceased at the same time,all parties claiming under deceased. Held, the calling of one physician was a waiverof the privilege as to the other) ; McUne v. Fuqua, 42 Wn.2d 65, 253 P.2d 632 (1953).(Personal injury action. Plaintiff testified as to his injuries and also had three physi-cians testify. Defendant tried to get in testimony concerning plaintiff's health prior tothe alleged injury. Held, a waiver as to any testimony that would impeach or contra-dict the testimony of the plaintiff or that which he offered.)847 Wash. 519, 522, 92 Pac. 372 (1907). "The legislature made no exception tothe rule of secrecy where it was necessary to contradict falsehood, but provided for anexception only in case of consent of the patient." Root J., joined by Hadley, C.J., in avigorous and persuasive dissent said that there should be a waiver when the patientdemonstrates that he no longer desires to keep the matter a secret by his own testimonyconcerning the illness.9 The court in the Randa case says that the Noelle case was previously abrogatedby Rule of Pleading, Practice and Procedure 35 (Rule 35 itself was abrogated subse-quent to the trial of the instant case by Rule 44). Rule 35 provided that the courtcould order a physical examination of a party whose health is in issue, and that if theparty examined requested a copy of the report of the examination, he waived any privi-lege he may have had regarding that condition. It is difficult to see how this ruleactually abrogated the Noelle case, unless it is considered that it is the power of thecourt that operated as a waiver.10 42 Wn.2d 65, 253 P.2d 632 (1953).11 It is unclear from the opinion whether either calling the physicians or the testi-mony of the plaintiff would by itself be a waiver of the privilege. Hence the case doesnot seem to directly overrule the Noelle case.12 Ostrowski v. Mockridge, 242 Mfinn. 265, 65 N.W.2d 185 (1954). (Bringing a per-sonal injury action, plaintiff testified, and called expert witnesses to testify, concerningher injuries. Held, no waiver.) ; see 8 WiGmoRE, EvIDENCE, 3rd Ed., § 2389, p. 832et. seq.13 8 WIGMORF, EVIDENCE, 3rd Ed., § 2389 p. 832 (quoted in the Randa case).4 Van Heuverzwyn v. State, 134 N.Y.S.2d 922 (N.Y. Ct Cl. 1954). (In personalinjury action maintained by guardian ad litem of infant inmate of state hospital, stateclaimed matters concerning the infant's injuries were privileged on a motion for dis-covery; held, the guardian could waive for the infant and the bringing of the action was1958]WASHINGTON LAW REVIEWThe Randa case pinpointed the problem. To sustain a recovery inthe action, respondent Bear would have had to show that the illnessdid exist, that it was necessary that it be treated, and that the com-pensation requested for the services was reasonable. However, theparties stipulated these facts, and the respondent thus avoided anypossible waiver under the rule of the McUne case. The court felt thatthe respondent should not be allowed to take an unfair advantage ofthe stipulation, and held that since she obviously intended to intro-duce medical testimony, she also intended to waive the privilege bybringing the action.The result in the Randa case is sensible. The case could be the begin-ning of a trend to gradually cut down the privilege and limit it tosituations where it possibly belongs. It is hoped that such a waiverwill be found in all situations in which a plaintiff has "tendered hisinjury into court," since the plaintiff thereby manifests his intentionthat a disclosure of such injury will no longer embarrass him.Hearsay- Business Records Exception -Hospital Records-Scope of Admissible Matter. In Young v. Liddington' respondentbrought a malpractice action for an alleged negligent diagnosis andtreatment of a child. Respondent offered, and the trial court receivedin evidence, a hospital record stating the maker's opinion as to thecause of the patient's current ailment, the statement being based solelyon a narrative of the patient's mother and the patient's present con-dition. On appeal from judgment on a verdict for respondent, thesupreme court reversed and granted a new trial. The court held thatwhile the Business Records Act' will qualify a hospital record withoutresort to the common law exception to the hearsay rule, it applies onlyto an "act, condition, or event" and will not permit the maker toexpress, through the record, an opinion which he could not express incourt because not based upon evidence before the jury.a waiver since proof of the injuries is necessary to recover) ; compare Eder v. Cashin,281 App. Div. 456, 120 N.Y.S2d 165 (1953). (Personal injury suit; held, a waiver ofprivilege as to previous mental illness of deceased was made by bringing the action.The plaintiff put in issue the worth of the deceased's life and had to prove it. However,another statute against disgracing the memory of the deceased kept the testimony out.)150 Wn.2d 78, 309 P.2d 761 (1957).2 RCW 5.45.020: "A record of an act, condition or event, shall in so far as relevant,be competent evidence if the custodian or other qualified witness testifies to its identityand the mode of its preparation, and if it was made in the regular course of business, ator near the time of the act, condition or event, and if, in the opinion of the court, thesources of information, method and time of preparation were such as to justify itsadmission (formerly RCW 5.44.110).[SUMMERVASHINGTON CASE LAW-1957Business records are sufficiently accurate as a general rule for thejury to consider them as evidence without the safeguard of crossexamination, and at common law are admissible as an exception to thehearsay rule. This rule, however, involves the preliminary proof ofidentification and unavailability of the recorder, which in many casesis too burdensome to be practical. Also, because the common lawexception is limited to those entries that were "regular," the casesare in some conflict as to when an entry was "casual" or regularlyin the course of business.3 In Toole v. Franklin Inv. Co.,4 decided priorto the adoption of the Business Records Act, an offer of a hospitalrecord was categorically rejected as hearsay. While the point was notdiscussed as such, the court evidently did not regard the record as a"business record."The Business Records Act was adopted to allow the admission ofhearsay evidence contained in business records without resort to thecommon law rule and its accompanying complexities. Hospital recordsmay be classed as business records within the meaning of the statute,'and may be introduced to show a diagnostic finding by a physician.'In the Young case, however, the opinion contained in the record wasnot one which could have been admitted by means of oral testimony.'As in Berndt v. Department of Labor and Industries,8 an expert medi-cal opinion is not admissible if not made in response to facts estab-lished in the record or made in response to a hypothetical questionthat omits relevant facts established by the record. In the Young casethe record contained an opinion made without reference to anotherprevious hospital record (which was admitted as evidence in the3 McCoR.'ICK, EvmENCF, § 287, p. 603.4158 Wash. 696, 291 Pac. 1101 (1930).5 RCV 5.45.010: "The term 'business' shall include every kind of business, profes-sion, occupation, calling or operation of institutions, whether carried on for profit ornot" (formerly RCW 5.44.100).6 RCW 5.45.020: "A record of an act, condition, or event..." (emphasis added).See, McCoRMIcK, EVIDENCE, § 290, pp. 609, 612.7 McGowan v. City of Los Angeles, 100 Cal.App.2d 386, 223 P.2d 862 (1940). (Ina personal injury action the defendant attempted to get introduced as evidence a recordof a bloodtest without proof of whose blood was tested. Held, the Business RecordsAct is only an exception to the hearsay rule and such a record is inadmissible withoutproper identification.); accord, Reisman v. Los Angeles City School Dist, 123 Cal.App.2d 493, 267 P.2d 36 (1954).8 44 Wn.2d 138, 265 P.2d 1037 (1954). (The plaintiff attempted to prove that thedermatitic condition contracted on her deceased husband's genitals had caused his death.The allegation was that the infection had caused such a degree of worry-that the wifewould think it was a venereal disease-as to induce a coronary thrombosis. In answerto a hypothetical question a medical expert testified that there was such causation.Held, such an opinion was inadmissible where the hypothetical had not included theestablished fact that the deceased had been advised by a doctor in the presence of hiswife, a nurse, that it was not a venereal disease.)1958]WASHINGTON LAW REVIEWinstant case) and made in ignorance of a case of measles contractedby the child subsequent to his last hospitalization.It seems apparent that, while the Business Records Act has waivedthe necessity for cross examination concerning certain hearsay records,under the rule of the Young case opinions contained in the record mustmeet the same standards as oral testimony.DOUGLAS M. FRYERLABOR RELATIONSFederal Pre-Emption under Taft-Hartley-Interference withEmployment as an Unfair Labor Practice as well as a CommonLaw Tort. In Selles v. Local 1431 the plaintiff had been a memberof the defendant union in which there was, early in 1952, some internalstrife. Selles was one of several members of the union who organizeda meeting of those dissatisfied with union policies concerning electionof officers and dissemination of information about union funds. Some150 members who were not sympathetic to Selles marched en masseinto the meeting hall and broke up the meeting.Within a few days following, Selles went to the union's hiring hallto get a job assignment and was told there was no work for him. Itwas determined as an ultimate fact that this was done in retaliationfor Selles' activities in organizing the grievance meeting. Selles wasnot regularly employed for more than a year thereafter, and wasfinally compelled to find less remunerative nonteamster work.Selles filed a complaint with the National Labor Relations Board.After they took jurisdiction, he withdrew the complaint and broughtsuit in superior court on a common law tort theory-interference withemployment-and recovered damages measured by his loss of earnings.On appeal the union maintained that its alleged misconduct con-stituted an unfair labor practice under the Labor Management Rela-tions Act' and that, by this act, Congress had preempted the field.The court, while agreeing that the union's conduct amounted to anunfair labor practice under this section of the LMRA, nevertheless2150 Wn2d 660, 314 P.2d 456 (1957).2 61 STAT. 140 (1947) 29 U.S.C.A. § 157 (1956). "Employees shall have the rightto self-organization, to form, join or assist labor organizations, to bargain collectivelythrough representatives of their own choosing, and to engage in other concerted activi-ties for the purpose of collective bargaining or other mutual aid or protection, andshall also have the right to refrain from any or all of such activities except to theextent that such right may be affected by an agreement requiring membership in a labororganization as a condition of employment as authorized in 158 (a) (3)."61 STAT. 140 (1947), 29 U.S.C.A. § 158 (b) (1) (A) (1956). "It shall be an unfair[SUMMER

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