Capron v. Douglass

36 Citing cases

  1. Ariz. & N.M. Ry. Co. v. Clark

    235 U.S. 669 (1915)   Cited 19 times

    It was so held under a similar statute in New York. Capron v. Douglass, 193 N.Y. 11. The principle is similar to that which is recognized in the case of attorney and client, where, if the communication is made in the presence of a third person, the privilege is waived.

  2. People v. Wilkins

    65 N.Y.2d 172 (N.Y. 1985)   Cited 49 times

    There can be no question, therefore, that defendant's statements to Dr. Sharma that the wounds of his wrist and abdomen were self-inflicted, had they been made to a physician, would be privileged within the meaning of CPLR 4504. It has, however, long been the rule that when a patient puts in issue the condition for which he was examined by a physician he waives the privilege to the extent of permitting the physician to testify as to the facts upon which his opinion is based, but not on matters unrelated to the opinion concerning defendant's guilt of a crime ( People v Edney, 39 N.Y.2d 620; People v Al-Kanani, 33 N.Y.2d 260, 264; Matter of Lee v County Ct., 27 N.Y.2d 432, 441; People v Carfora, 25 N.Y.2d 972; People v Finn, 64 A.D.2d 526; see, People v Smith, 59 N.Y.2d 156, 164; Koump v Smith, 25 N.Y.2d 287; Hethier v Johns, 233 N.Y. 370; Capron v Douglass, 193 N.Y. 11).

  3. People v. Edney

    39 N.Y.2d 620 (N.Y. 1976)   Cited 68 times
    In Edney, the New York Court of Appeals held that the attorney-client privilege was waived because State law allowed prosecutors to compel a defendant to submit to an examination by a State-retained psychiatric expert, and therefore the very facts that would be secreted by the privilege necessarily would be disclosed through the compelled examination.

    People v. Carfora, 25 N.Y.2d 972). When the patient first fully discloses the evidence of his affliction, it is he who has given the public the full details of his case, thereby disclosing the secrets which the statute was designed to protect, thus creating a waiver removing it from the operation of the statute (Capron v. Douglass, 193 N.Y. 11; Koump v. Smith, 25 N.Y.2d 287; Davis v. Davis, 1 A.D.2d 675; Waiver of Privilege As Regards One Physician As A Waiver As To Other Physicians, Ann., 5 ALR 3d 1244, 1247-1251); and once the privilege is thus waived, there is nothing left to protect against for once the revelation is made by the patient there is nothing further to disclose `for when a secret is out it is out for all time and cannot be caught again like a bird and put back in its cage. * * * The legislature did not intend to continue the privilege when there was no reason for its continuance and it would simply be an obstruction to public justice' (People v. Bloom 193 N.Y. 1, 10)". Our holding in the case now before us comports with this rationale and is but a logical extension of our determination in Al-Kanani.

  4. Hudman v. State

    89 Okla. Crim. 160 (Okla. Crim. App. 1949)   Cited 22 times
    In Hudman, the trial court permitted the prosecution to introduce photographs of the victim of a homicide which had been taken prior to the homicide.

    "In some jurisdictions it is held that a waiver of the privilege as to one of several physicians attending the patient waives such privilege as to all of such physicians, whether they attend him in consultation and together, or whether they attend him singly and at different times. Chaffee v. Kaufman (1923) 113 Kan. 254, 214 P. 618; State v. Long (1914) 257 Mo. 199, 165 S.W. 748; Weissman v. Wells (1924) 306 Mo. 82, 267 S.W. 400; O'Brien v. Western Implement Mfg. Co. (1910) 141 Mo. App. 331, 125 S.W. 804; Oliver v. Aylor (1913) 173 Mo. App. 323, 158 S.W. 733; Michaels v. Harvey (1915) Mo. App., 179 S.W. 735 (later appeal in (1917) Mo. App., 195 S.W. 519); McPherson v. Harvey (1916) Mo. App., 183 S.W. 653; Priebe v. Crandall (1916) Mo. App., 187 S.W. 605, Capron v. Douglass (1908) 193 N.Y. 11, 85 N.E. 827, 20 L.R.A., N.S., 1003; Hethier v. Johns (1922) 233 N.Y. 370, 135 N.E. 603 (overruling decision in (1921) 198 A.D. 127, 189 N.Y.S. 605); Dewey v. Cohoes L. Bridge Co. (1915) 170 A.D. 117, 155 N.Y.S. 887; Kraus v. M. G. W. Corp. (1922) 203 A.D. 582, 196 N.Y.S. 845; Fennelly v. Schenectady R. Co. (1922) 201 A.D. 211, 193 N.Y.S. 641; Cretney v. Woodmen Acci. Co. (reported herewith), [ 196 Wis. 29, 219 N.W. 448, 62 A.L.R.] 675."

  5. Hethier v. Johns

    198 A.D. 127 (N.Y. App. Div. 1921)   Cited 1 times

    The question again arose in this department in the case of Milligan v. Clayville Knitting Co. ( 137 App. Div. 383), in a personal injury action, and this court reiterated the doctrine which it had laid down in the case of Hennessy v. Kelley (55 id. 449). Meanwhile, an opinion had been written in the Court of Appeals in the case of Capron v. Douglass ( 193 N.Y. 11). That was a malpractice action. The defendant had set the plaintiff's leg.

  6. McKenney v. American Locomotive Co.

    164 App. Div. 625 (N.Y. App. Div. 1914)   Cited 2 times

    e at bar the plaintiff had sworn that Dr. Lord had treated his eye, and in fact had treated both eyes immediately after the accident; that the right eye was swollen, it seemed to him, as large as his head; that Dr. Lord treated him for some time, and had treated him since; that he doctored the eye; that plaintiff was suffering from headache, and he gave him stuff to put on his head and for the headache at the time; that he went to Dr. Lord after the injury and Dr. Lord fixed him up in good shape and sent him home, and told him to come back to him later on; he told him to come back in a couple of days and he would treat his eye; that the eye was so badly swollen and bruised that he could not treat it at that time, so he said to come back. That the testimony of the plaintiff as to the nature of his injuries and his treatment by the physician waives the privilege of the physician, seems to have been held in Rauh v. Deutscher Verein ( 29 App. Div. 483). That case is cited with approval in Capron v. Douglass ( 193 N.Y. 11, 18); also in Fox v. Union Turnpike Co. ( 59 App. Div. 369). The plain import of the plaintiff's testimony is that the physician declined to treat the eye at that time because of its swollen condition, making it impossible for him to give such treatment. It would seem clear that this testimony would authorize the physician to swear that the eye was not swollen at that time; and also to swear what was its actual condition.

  7. Engl v. Ætna Life Ins.

    139 F.2d 469 (2d Cir. 1943)   Cited 206 times
    Allowing an opposing party to “reserve one's evidence when faced with a motion for summary judgment” would render “useless the very valuable remedy of summary judgment”

    Of course, she, or at least the deceased's "personal representatives," had the undoubted right to waive the privilege. New York Civil Practice Act, § 354, permitting waiver "upon the trial or examination"; Capron v. Douglass, 193 N.Y. 11, 85 N.E. 827, 20 L.R.A., N.S., 1003; Lorde v. Guardian Life Ins. Co., 252 App. Div. 646, 300 N.Y.S. 721. But it is a complete non sequitur to say that this federal rule has such an extensive application as to control, and, as we believe, largely to nullify, another federal rule more directly involved, namely, Rule 56, concerning summary judgments. The limitation of Federal Rule 26(b) of the scope of examination before trial to relevant matter not privileged has a quite different objective from that visualized in the plaintiff's argument.

  8. Munzer v. Swedish American Line

    35 F. Supp. 493 (S.D.N.Y. 1940)   Cited 31 times

    In that case Judge Vann, referring to the statutory requirement that the waiver be "at the trial" after the 1899 amendment of the statute, held that the examination of a witness under a commission may well be regarded as a part "of the trial" to satisfy that requirement. In Capron v. Douglass, 193 N.Y. 11, at page 17, 85 N.E. 827, at page 829, 20 L.R.A., N.S., 1003, Judge Haight refers to a waiver of the privilege of the plaintiff in open court, "either by his own testimony or by that of others given with his knowledge and consent". When, in that way, plaintiff's "physical condition has been given to the public, the door is then thrown open for his opponent to give the facts as he understands them".

  9. Arons v. Jutkowitz

    2007 N.Y. Slip Op. 9309 (N.Y. 2007)   Cited 220 times
    Holding that state law allowing ex parte interviews did not conflict with HIPAA

    Upon the commencement of a personal injury action a plaintiff waives the physician-patient privilege of confidentiality and no longer possesses relevant protected health information. ( Anker v Brodnitz, 98 Misc 2d 148, 73 AD2d 589, 51 NY2d 703, 743; Koump v Smith, 25 NY2d 287; Dillenbeck v Hess, 73 NY2d 278; People v Edney, 39 NY2d 620; People v AlKanani, 33 NY2d 260; Capron v Douglass, 193 NY 11; People vBloom, 193 NY 1; Strader v Collins, 280 App Div 582; Luce v State of New York, 266 AD2d 877; Tiborsky v Martorella, 188 AD2d 795.) II. The ex parte interview of any nonparty fact witness — medical or not — conducted subsequent to the institution of a personal injury lawsuit — constitutes trial preparation which is both the obligation and right of every trial attorney.

  10. People v. Al-Kanani

    33 N.Y.2d 260 (N.Y. 1973)   Cited 61 times   1 Legal Analyses

    We hold that where insanity is asserted as a defense and, as here, the defendant offers evidence tending to show his insanity in support of this plea, a complete waiver is effected, and the prosecution is then permitted to call psychiatric experts to testify regarding his sanity even though they may have treated the defendant (cf. People v. Carfora, 25 N.Y.2d 972). When the patient first fully discloses the evidence of his affliction, it is he who has given the public the full details of his case, thereby disclosing the secrets which the statute was designed to protect, thus creating a waiver removing it from the operation of the statute ( Capron v. Douglass, 193 N.Y. 11; Koump v. Smith, 25 N.Y.2d 287; Davis v. Davis, 1 A.D.2d 675; Waiver of Privilege As Regards One Physician As A Waiver As To Other Physicians, Ann., 5 ALR 3d 1244, 1247-1251); and once the privilege is thus waived, there is nothing left to protect against for once the revelation is made by the patient there is nothing further to disclose "for when a secret is out it is out for all time and cannot be caught again like a bird and put back in its cage.