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 it has been said that the physician cannot avail himself
of the statute for his own benefit; but that was in a case where the
communication was not really of the privileged class.[300] In New
York, in proceedings to which a physician was a party an examination
of his books of account before trial has been refused on the ground of
privilege, and for the same reason a motion to direct a physician to
turn his books of account over to a receiver has been denied.[301]
In Montana it has been said that when the patient consents no one else
can object to the reception of the physician’s testimony.[302]
In New York it has been said that the benefits of the law are to be
dispensed alike to those familiar with and those ignorant of its
existence and applicability, and it is therefore no reason to refuse
its enforcement, that the patient did not know that his communication
was privileged.[303]
But, as in other cases of the receipt of improper evidence, it would
seem that the objection should be made at the time it is offered, and
if the objection is not then made, it will not avail to raise it later
or on appeal.[304] It should not be prematurely made.[305] In New
York where in pursuance of a special feature of practice in probate
proceedings,[306] certain witnesses are regarded as the surrogate’s
witnesses though produced at the instance of the contestant, and the
contestant, after giving notice that the evidence of physicians as such
witnesses was material, refused to examine them, and the surrogate
required the proponent to suggest a line of examination, it was held
that it did not lie with the contestant to object to the physicians’
testimony as privileged, because she had lost her right to object by
giving notice that the evidence of those witnesses on these points was
material.[307]
Objection cannot be raised in the progress of an examination after the
forbidden testimony has been in part received without objection; for
that would unjustly enable a party to open the door and get in all he
desired and then to close it to the disadvantage of his adversary; when
the door is once properly opened the examination may be continued until
it is complete, despite the objection of the party at whose instance it
was begun.[308]
In Indiana, where there was no objection, it was held that the evidence
should not be withdrawn from the consideration of the jury or its
weight diminished by comments on its value as matter of law.[309]
But when such evidence has already been admitted in the face of
objection, it is not necessary for the party to object again, as
nothing is waived by conforming with a rule already laid down.[310]
Where it is apparent that no harm is done to the objecting party by an
improper ruling on the receipt of privileged communications, no weight
will be given to an exception to such ruling.[311]
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