Medical Jurisprudence, Forensic medicine and Toxicology. Vol. 1Witthaus, R. A. (Rudolph August)
Science
Medical Jurisprudence, Forensic medicine and Toxicology. Vol. 1
Witthaus, R. A. (Rudolph August)
Medical jurisprudence; Poisons; Toxicology
_Reasons for the Rule._—It does not clearly appear, in any of the
cases usually cited as authority, why the distinction is made between
legal and medical advisers, but it is apparent that the privilege does
not rest upon considerations of honor nor of confidence,[210] nor
even upon the urgency of the situation under which the communication
is made; for disclosures are made to a physician frequently to save
life, or to a priest for reasons of eternal import, while those made
to an attorney insure at most protection from temporal annoyance.
The privilege of attorneys seems to be founded upon considerations
of public policy in the administration of justice in the courts;
attorneys are a part of the system, as are grand jurors, petit jurors,
and judges,[211] and even arbitrators;[212] but physicians are no
part of that system, and a disclosure of confidences made to them in
no way tends to weaken the system or render it ineffectual, while the
compulsory examination of lawyers would tend to the suppression of
the truth in litigation by discouraging confidence between attorney
and client. This, perhaps, can be assigned as the reason for the
distinction; a distinction which does not differentiate lawyers from
physicians, but agents in the administration of justice from all
others.[213]
_Criticism of the Rule._—Though the privilege of attorneys was adopted
to enforce respect for the law as securing the rights of persons
entitled to its protection, by establishing inviolable confidence
between them and the officer who represents them in their dealings
in the law, and though it was not the purpose of the law to enforce
sentiment or to elevate one profession above another, the sentimental
idea did not suffer neglect for the want of advocates. Justice Buller
lamented the narrowness of the rule,[214] and Mr. Best has criticised
it as harsh in itself, of questionable policy, and at variance with the
practice in France and the statute law in some of the United States of
America.[215]
THE RULE IN THE UNITED STATES.
It is to be assumed, in the absence of statutes varying the rule, and
of decisions to the contrary, in the several States of the United
States, that in those States which derived their law from England the
same rule of evidence obtains as that above enunciated. But many of the
legislatures have by statute extended the privilege to communications
between physicians and their patients, as well as to other specified
confidential communications which it does not fall within the scope of
this work to discuss.[216]
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