Renihan v. Dennin

The surrogate of Rensselaer county admitted to probate the will of James Dennin, deceased. Upon appeal to the Greneral Term the surrogate’s decree was reversed and special issues as to the competency of the testator and the due execution of the will were ordered to be tried before a jury. The trial came on and it appeared that the will was executed in the evening, a short time before the testator’s death, and that during the same evening, before the execution of the will, Dr. Bontecou was requested by the attending physician to be present at the testator’s house for consultation with him relative to the testator’s condition and treatment; and in pursuance

Section 834 is as follows: “ A person duly authorized to practice physic or surgery shall not be allowed to disclose 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; ” and section 836 provides that that section applies to every examination of a person as a witness unless the provisions thereof are expressly waived by the patient. Dr. Bontecou was a person duly authorized to practice physic. Whatever information he had about the condition of the testator lie acquired while attending him as a patient. It is true that the testator did not call him or procure his attendance. But he did not thrust himself into his presence or intrude there. He was called by the attending physician and went in his professional capacity to see the patient, and that was enough to bring the case within the statute. It is quite common for physicians to be summoned by the friends of the

But it is claimed that the statute should be held not to apply to testamentary cases. There is just as much reason for applying it to such cases as to any other, and the broad and sweeping language of the two sections cannot be so limited as, to exclude such cases from their operation. There is no more reason for allowing the secret ailments of a patient to be brought to light in a contest over his will than there is for exposing them in any other case where they become the legitimate subject of inquiry. An exception so important, if proper, should be en-grafted upon the statute by the legislature, and not by the courts.

It is also claimed that the statute should be so construed as only to prohibit the disclosures by a physician of any information of a confidential nature obtained by him from his patient while attending him in a professional capacity. Such was the view of the statute taken by me in my opinion in Edington v. Ætna Life Ins. Co. ( 77 N, Y. 564 ); but my brethren

It is further contended that the rule laid down in People v. Pierson ( 79 N. Y. 424 ) should be applied to this case. We there held that the statute did not cover a case where its prohibition was invoked solely for the protection of a criminal, and not at all for the benefit or protection of the patient who was dead, and a waiver of the prohibition had, therefore, become impossible. We are unable to perceive how the reasoning upon which that decision rests can have any application to this case. Here there is no allegation of crime, and there is a mere contest over the patient’s property.

It is probably true that the statute, as we feel obliged to construe it, will work considerable mischief. In testamentary cases /where the contest relates to the competency of the testator, it 'will exclude evidence of physicians which is generally the most important and decisive. In actions upon policies of life insurance where the inquiry relates to the health and physical condition of the insured, it will exclude the most reliable and vital evidence which is absolutely needed for the ends of justice. But the remedy is with the legislature, and not with the courts.

The judgment should be affirmed, with costs.-

All concur.

Judgment affirmed.