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
In Michigan, what the patient may do in his lifetime, those who
represent him after his death may also do for the protection of
the interests which they claim under him.[291] In Missouri the
representatives of the patient may waive;[292] and where the dispute
is between devisees and heirs at law all claiming under a deceased
patient, either the devisees or heirs may call the attending physician
of the testator as a witness regarding information acquired by him in
his professional attendance.[293] In Nevada it has been said that the
parents of a seven-year-old infant, may waive for the infant.[294]
_Objections to the Admission of Privileged Communications; When and
by Whom Made._—Having considered who can waive the privilege, it
is material to discuss also the question who may insist upon the
enforcement of the law. If the protection were only enforced on the
claim of privilege by the patient, the very object of the statutes
would be defeated in the large majority of instances because of the
absence of the patient and every one interested in his behalf to
assert his right. It rests, therefore, with any party to raise the
objection and assert the prohibition. But it seems that the physician
himself, unless a party, cannot make the objection.[295] It seems to
have been thought in some of the cases that the right to insist upon
the enforcement of the law is coupled with an interest derived from
the patient. This idea started from the language used in the early
cases enforcing the privilege at the instance of those claiming under
deceased patients;[296] and it led to some confusion where the right
of representatives to waive the privilege was denied; but it seems
to be clear that the right to object differs from the right to waive
in that the latter is necessarily and logically dependent upon the
relation between the patient and his representative, while the former
is obviously suggested as the best method of enforcing the law. In
Indiana it has been said that the statute gives to the representative
of a deceased patient the right to object;[297] but that this is not
by reason of the relationship appears from another case in the same
State, where on an application for a new trial the Court voluntarily
refused to grant one for newly discovered evidence disclosed to it
by a physician’s affidavit, on the ground that if the patient should
object in the new trial the evidence would be excluded.[298] In this
State it has been held that the widow of the patient cannot object to
the disclosure, if his administrator with the will annexed waives the
privilege.[299]
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