The opinion of the court was delivered by: EDELSTEIN
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' argument 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:
'The 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 pre-trial 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 flaunt 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 proscriptive protection of § 352, the testimony of the physician is rendered incompentent 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 of this analysis with relation to the Fleet Messenger case, the Klein case and the Roth case, will, it is hoped, underscore the sound basis upon which those decisions are bottomed.
Returning now to Judge Levet's decision, it was grounded also on the premise that permitting a non-party witness to conceal information by attempting to invoke the patient's privilege would be abhorrent to the policy of promoting the disclosure of truth. The opinion, quoting from Professor Wigmore stated that: 'It is certain that the practical employment of the privilege has come to mean little but the suppression of useful truth -- truth which ought to be disclosed and would never be suppressed for the sake of any inherent repugnancy in the medical facts involved * * *. In all of these (actions on policies of life insurance where the deceased's misrepresentations of his health are at issue) the medical testimony is absolutely needed for the purpose of learning the truth. In none of them is there any reason for the party to conceal the facts, except as a tactical maneuver in litigation * * *. In none of these cases need there by any fear that the absence of the privilege will subjectively hinder people from consulting physicians freely. The actually injured person would still seek medical aid, the honest insured would still submit to medical examination, and the testator would still summon physicians to his cure.' 8 Wigmore, Evidence, § 2380(a) at p. 831 (McNaughton ed. 1961).
The disapproval of the privilege in the Fleet Messenger case is but a single expression of a considerable body of opinion which holds that the privilege serves only to obstruct justice by preventing the physician from disclosing the truth. See Chafee, Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor's Mouth on the Witness Stand? 52 Yale L.J. 607 (1943); Long, Physician-Patient Privilege Statutes Obstruct Justice, 25 Ins. Counsel J. 224 (1958); Note, 6 St. John's L.Rev. 91 (1931); Note, Discovery and the Physician-Patient Privilege, 34 NW U.L.Rev. 384 (1952); Note, The Physician-Patient Privilege, 58 W.Va.L.Rev. 76, (1955). These commentators point out that the reasons that were advanced to justify the enactment of the rule were never valid and have no more validity today. The rationale underlying New York's enactment of the statutory privilege was to encourage consultations between the physician and patient and to preserve the confidentiality of communications. Commissioners on Revision of the Statutes of New York, 3 N.Y.Rev.Stat. 737 (1836); Edington v. Aetna Life Ins. Co., supra, 77 N.Y. at 569-570; 8 Wigmore, supra at 828. But as Wigmore points out 'in only a few instances, out of the thousands occurring, is the fact communicated to a physician confidential in any real sense * * *. There is hardly a fact in the categories of medicine in which the patient himself attempts to preserve any real secrecy * * *. Even where the disclosure to the physician is actually confidential, it would nonetheless be made though no privilege existed. People would not be deterred from seeking medical help because of the possibility of disclosure in court. If they would, how did they fare in the generations before the privilege came?' 8 Wigmore, supra at 829.
It is clear that to permit the witness, Dr. Schwimmer, to remain silent by taking advantage of the absence of waiver, notwithstanding the fact that no objection has been interposed by a party, might result in the very injustice which is deprecated by the commentators. Dr. Schwimmer has already disclosed by previous answers that prior to Buchan's death he was consulted by Buchan in New York. Unless Dr. Schwimmer is ordered to testify further in the circumstances herein concerning the nature of Buchan's health at the time of the consultations, the defendant insurers may be prevented from supporting their defense that a material misrepresentation was made by the decedent. Dr. Schwimmer is outside the subpoena jurisdiction of the North Carolina District Court. See Fed.R.Civ.P. 45(e)(1)
and the instant examination appears to be the only opportunity available to the defendants to obtain the truth concerning certain of Buchan's statements on the applications for insurance.
The force of the authority of the Roth case, supra, the Fleet Messenger case, supra, and the Klein case is not diluted by the fact that § 149(4) of the Insurance Law is not involved in this case as the plenary litigation is pending in the North Carolina District Court. Consequently, in the absence of an objection by the plaintiffs and notwithstanding the absence of a waiver by the personal representative, the court is constrained to follow the theory of the Roth case and its progeny that the prohibition against disclosure of professional information 'is not automatic or absolute in the absence of waiver, or to be insisted upon at the initiative and compulsion of the court * * *.' Dr. Schwimmer is hereby ordered to answer questions 1, 2, 3, 5, 6, 7, 8, 9 and 10. Questions 11 and 12 should also be answered. The relevancy objection raised as to those questions is overruled. It is no objection to the questions that the answers may be inadmissible at trial. The questions should be answered if they appear to be reasonably calculated to lead to the discovery of admissible evidence. See Fed.R.Civ.P. 26(b).
The court's order in no way intends to prejudice or deprive the plaintiffs, or defendant or the deceased's personal representative, if he becomes a party to the action, from objecting to the admissibility of the deposition in whole or in part at the trial of the action in the North Carolina District Court. But the liberal discovery policy of encouraging full disclosure to prevent surprise and as an 'effective means of detecting and exposing false, fraudulent, and sham claims and defensens' 4 Moore, Federal Practice P26.02(2) at 1035 (3d ed. 1962) requires that the Doctor's knowledge concerning Buchan's physical condition and health be disclosed.
Questions 14, 15 and 16 were objected to on the grounds that the witness' Fifth Amendment privilege against self-incrimination 'might' be violated by responsive answers. It is well established that 'the privilege is not * * * dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the ancriminal might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is a party defendant.' McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S. Ct. 16, 17, 69 L. Ed. 158 (1924); 8 Wigmore, supra at 326; McCormick, Evidence § 123 (1954); Maguire, Evidence of Guilt 17 (1959). And in determining whether the invocation of the privilege is made in good faith the Supreme Court has held that 'to sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.' Hoffman v. United States, 341 U.S. 479, 486-487, 71 S. Ct. 814, 818, 95 L. Ed. 1118 (1951); Emspak v. United States, 349 U.S. 190, 198, n. 18, 75 S. Ct. 687, 99 L. Ed. 997 (1955). The nature of the subject matter precludes greater certainty or the establishment of more finite guidelines and it is acknowledged that the judge, in appraising the claim, must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. Hoffman v. United States, supra, 341 U.S. at 487, 71 S. Ct. at 818; Emspak v. United States, supra, 349 U.S. at 198, 75 S. Ct. at 692. The privilege may be claimed where there is a reasonable likelihood to apprehend danger from a direct answer, Hoffman v. United States, supra, 341 U.S. at 486-487, 71 S. Ct. at 818-819; Mason v. United States, 244 U.S. 362, 365, 37 S. Ct. 621, 61 L. Ed. 1198 (1917), or where the answer would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. Hoffman v. United States, supra, 341 U.S. at 486-487, 71 S. Ct. at 818-819; Blau v. United States, 340 U.S. 159, 71 S. Ct. 223, 95 L. Ed. 170 (1950); In the Matter of Mutual Security Savings & Loan Ass'n, Inc., 214 F.Supp. 877, 881 (D.Md.1963). The court must be mindful of not requiring the witness to prove what hazards he foresees as a result of disclosure, for to do so would be to require the surrender of the protection which the privilege is designed to guarantee. Hoffman v. United States, supra, 341 U.S. at 486, 71 S. Ct. at 818. The court further realizes that privilege against self-incrimination must be 'accorded liberal construction in favor of the right it was intended to secure.' Ibid., see Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S. Ct. 195, 35 L. Ed. 1110 (1892); Bouschor v. United States, (8th Cir. 1963), 316 F.2d 451.
The court, after considering the implications of questions 14, 15 and 16 'in the setting in which they are asked' holds that it is not unreasonable to conclude that responsive answers conceivably could be used as the first step to a federal criminal prosecution. ,:he claim of self-incrimination is sustained and the objections to questions 14, 15 and 16 are substained.
As to question 17, the objection is overruled. The question may be answered Yes or No. The fact that a responsive answer to the question may draw upon hearsay statements is not a valid objection. The fact that the answer may not be admissible at the trial is not a valid ground for objection 'if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.' Fed.R.Civ.P. 26(b).
The objections to questions numbered 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 17 are overruled and the witness is hereby ordered to answer those questions. The objections to questions 14, 15 and 16 are sustained. So ordered.
1. Q. Did this charge include anything other than your own services?
MISS CLARK: I am going to direct the witness not to answer ...