Citations
- 219 F. Supp. 181
Full opinion text
EDELSTEIN, District Judge.
The defendant insurance companies have moved for an order pursuant to Rule 37(a), Fed.R.Civ.P., to compel a witness to answer certain questions propounded upon his oral deposition. The above-entitled actions are brought by corporate beneficiaries to recover the face amounts of life insurance policies issued on the life on one Henry Carl Buchan, Jr., who died on October 22, 1960. The defendants have denied recovery under the policies on the ground that the insured made misrepresentations of material facts in the several insurance applications and, in addition, concealed material facts from the companies. The alleged material misrepresentations and concealments pertained to the health, previous illnesses, and physical condition of the insured as well as information concerning consultations with and treatment by physicians within a stated period prior to the application.
The defendants, in an attempt to establish their defenses, took the deposition of Dr. Julius Schwimmer upon oral examination pursuant to Rule 30, Fed. R.Civ.P. Present at the deposition, in addition to counsel for the plaintiff and defendants was counsel for the witness. Dr. Schwimmer testified that he was called to attend Henry Carl Buchan, Jr., at the Hotel Pierre in New York City on two occasions, once in 1959 and again in 1960. The witness further stated that the calls were made after midnight and on each occasion Buchan paid Dr. Schwimmer $25.00 for the visits. The doctor thereupon refused to answer questions concerning the nature of Buchan’s illness, the treatment given, or the medicines prescribed on the ground that such questions called for privileged information. See Fed.R.Civ.P. 26(b). The witness invoked the physician-patient privilege as to certain questions and invoked the Fifth Amendment privilege against self-incrimination as to certain others. In addition, there was objection to two questions on the ground of relevancy. The questions and the objections thereto have been set out in the appendix and have been numbered to facilitate their discussion seriatim.
Under New York’s statutory enactment of the common law physician-patient privilege, a physician is not “allowed” to disclose any information acquired in attending a patient in a professional capacity if such information was necessary to enable him to act in that capacity. N.Y.Civ.Prac.Act § 352. The privilege belongs to the patient and may be claimed or waived by him. Travelers’ Ins. Co. v. Pomerantz, 124 Misc. 250, 207 N.Y.S. 81, aff’d 218 App.Div. 431, 218 N.Y.S. 490 (1st Dept. 1926), rev’d on other grounds, 246 N.Y. 63, 158 N.E. 21, 23 (1927). Where the patient is dead, however, § 354 of the Civil Practice Act permits the personal representative of the decedent’s estate to waive the prohibition against disclosure of professional information. The personal representative, upon a waiver of the prohibition, may permit the divulgence of information imparted by the decedent to the doctor which was “necessary” to the physician’s diagnosis and prescription. See Matter of Caddington’s Will, 307 N. Y. 181, 120 N.E.2d 777 (1954); Steinberg v. New York Life Ins. Co., 263 N.Y. 45, 48-49, 188 N.E. 152, 90 A.L.R. 642 (1933); Edington v. Aetna Life Ins. Co., 77 N.Y. 564, 569-570 (1879); Murray v. Physical Culture Hotel, Inc., 258 App. Div. 334, 16 N.Y.S.2d 978 (Sup.Ct.1939). But even if the prohibition is waived by the personal representative, a physician may not disclose “confidential communications and such facts as would tend to disgrace the memory of the patient * * *” N.Y.Civ.Prac.Act, § 354; Eder v. Cashin, 281 App.Div. 456, 120 N.Y.S. 2d 165 (3rd Dept. 1953).
The statute, N.Y.Civ.Prac. Act, § 354, requires the proscription against the disclosure of professional information to be “expressly waived” and further requires-that the waiver “must be made in open court, on the trial of the action or proceeding * * * ” N.Y.Civ.Prac.Act, § 354. The New York courts have held that an examination before trial, or deposition, is a “proceeding” to which the express waiver provision applies. Lorde v. Guardian Life Ins. Co. of America, 252 App.Div. 646, 300 N.Y.S. 721 (1st Dept. 1937); Kriebel v. Commercial Travelers Mut. Acc. Ass’n of America, 63 N.Y.S.2d 282 (Sup.Ct.1946).
The decedent’s personal representative, assuming one has been appointed, did not appear at the deposition of Dr. Schwimmer, and since the plaintiffs, as beneficiaries under the policy had no standing to waive the decedent’s privilege, Saad v. New York Life Ins. Co., 201 App.Div. 544, 194 N.Y.S. 445, 447 (1st Dept. 1922), “there [was] no one in court who [could] waive the restriction placed upon the giving of testimony by a physician under section [352] * * Saad v. New York Life Ins. Co., supra, 194 N.Y.S. at 447. Counsel for the plaintiff-beneficiaries in these proceedings apparently recognized the limitation on waiver by a beneficiary and stated explicitly that they had “no authority” either to waive the privilege or claim it. Although it is clear that Buchan’s personal representative has not made the express waiver as required by statute, the defendants nevertheless contend “that the law in New York is well settled that an attending physician may not claim privilege under New York law and unless the privilege is claimed by the plaintiffs in this litigation, the personal representative of Henry Carl Buchan, Jr., deceased, not being a party and not before the court, the defendants are entitled to have the court enter an order directing the witness, Dr. Julius Schwimmer, to answer the questions propounded to him, hereinbefore listed.”
In support of their contention that the witness must be compelled to answer, the -defendants have sought assistance from Roth v. Equitable Life Assur. Soc., 186 Misc. 403, 59 N.Y.S.2d 707, aff’d, 270 App.Div. 923, 62 N.Y.S.2d 612 (1st Dept. 1946). The theme of defendants’ argu.ment is less than clear, but defendants, by relying on Roth, contend that “absent a claim of privilege by plaintiffs in this action” the physician must respond since he cannot claim “privilege” on his patient’s behalf. See Fleet Messenger Service, Inc. v. Life Ins. Co. of North America, 205 F.Supp. 585 (S.D.N.Y. 1962), aff’d 315 F.2d 593 (2d Cir.1963); Klein v. Union Ins. Co., 3 C.C.H.Life Cas. 2d 242 (E.D.N.Y.1957); Siebern v. Mutual Life Ins. Co. of New York, 269 App. Div. 942, 57 N.Y.S.2d 847 (2d Dept.1945), affirming 269 App.Div. 846, 55 N.Y.S.2d 603 (2d Dept.1945).
In Roth v. Equitable Life Assur. Soc. the court held that the plaintiff, in the affirmative sense of waiver, could not waive the privilege since he was not the insured’s personal representative, but the court went on to observe that the privilege was not self-operative:
“[T]he established attitude of the law toward the privilege is that it is not automatic or absolute in the absence of waiver, or to be insisted, upon at the initiative and compulsion of the court, but rather that the testimony will be admitted in the absence of objection. * * * The objection may come from any party to the litigation whether or not the personal representative of the insured, and upon objection being made, in the absence of waiver, the court is obliged to exclude the testimony.” (Emphasis supplied.)
In Klein, a case somewhat analogous to the facts of the instant motion, Judge Cashin of this court refused to permit a physician-witness to refuse to answer questions on his deposition on the ground of privilege in the absence of objection by the plaintiff-beneficiary. Relying on the Roth case and the Siebern case Judge Cashin stated that “before a physician can be justified in his refusal to answer, it must be established that the prohibition contained in Sections 352 and 354 is self-operative and thus applicable even in the absence of objection. Such does not, however, appear to be the law of New York.” Klein v. Union Central Life Ins. Co., supra. The ratio decidendi in Klein was that by permitting the physician witness to refuse to answer questions in the absence of objection by the plaintiff-beneficiary, Section 149(4) of the New York Insurance Law would be rendered meaningless since the plaintiff, by having the objection come in by means of a non-party witness would avoid the § 149 (4)’s statutory presumption and at the same time obtain the benefit of the privilege.
A similar line of reasoning, in part relying on § 149(4) of the New York Insurance Law, was followed by Judge Levet of this court in Fleet Messenger Service, Inc. v. Life Ins. Co. of North America, supra. In Fleet Messenger, also an action by a beneficiary to recover the proceeds of a life insurance policy, an attorney representing the widow and the personal representatives, none of whom were parties to the action, appeared before Judge Levet at a pre-trial conference and sought to invoke the “physician-patient privilege” to exclude certain testimony by physicians of the deceased insured. Judge Levet, in a pretrial order, pursuant to Rule 16, Fed.R. Civ.P., relied on Roth v. Equitable Life Assur. Soc., supra, and the Klein case, supra, and held that the widow and the personal representatives were not parties to the action and thus in the absence of legislation the court was not “disposed to extend the right to invoke the privilege to a non-party.” Fleet Messenger Service, Inc. v. Life Ins. Co. of North America, 205 F.Supp. 585, 588 (S.D.N.Y.1962). The problem of requiring the physician to disclose the content of professional information obtained from the decedent has immured the court in a dilemma, for to compel such disclosure appears to Haunt the clear statutory language prohibiting such testimony unless the statutory interdiction is “expressly waived” by the personal representative in open court upon a trial or an examination. N.Y.Civ.Prac. Act, § 354. Although the case law supports the proposition that in the absence of an objection by a party to the suit the physician must divulge information otherwise deemed confidential, the court has been concerned with solving the puzzle of how to square the statute’s explicit and unequivocal prohibition against disclosure in the absence of waiver with the decisions compelling disclosure in the absence of objection by a party. Perhaps an analysis along the lines suggested below may serve to sever the Gordian knot and may help to resolve what appears to be an irresolute inconsistency between the statute and the case law.
It is manifest from the statute’s plain mandate that a waiver by the personal representative in open court is required in order to “allow” the physician to testify concerning confidential communications. However, when no such waiver has been made an objection by a party to the physician’s testimony is an objection that, in effect, protests the divulgence of confidential communications in the absence of compliance with the waiver provision of § 354. Thus, when a party objects to the physician’s testimony concerning communications with the decedent the party is in effect saying: “That unless the personal representative complies with the statute’s waiver provisions, thereby indicating that the representative no longer seeks the pro.seriptive protection of § 352, the testimony of the physician is rendered incompetent by § 352 and must be excluded.” But by not interposing objections as is the case here, the parties, in effect, are stating that they have no objection to the disclosure of information which, had 'objection been made, would be rendered inadmissible by virtue of the representative’s failure to waive the restriction against the disclosure of professional information. And the prohibition not being automatic, the court’s exclusion, sua sponte, is unwarranted. Utilization