Where the plaintiff in an action brought to recover damages for personal injuries caused by the negligence of the defendant describes these injuries and their results and it appears that he has consulted or been treated by a physician in regard to them he waives the protection of section 834 of the Code (now section 352, Civil Practice Act). The physician may then be called by the defendant and examined as to any information acquired by him in the course of such consultation or treatment. The rule as it was formerly understood was altered by our decision in Capron v. Douglass ( 193 N.Y. 11). We there took the position that where the patient tenders to the jury the issue as to his physical condition it must in fairness and justice be held that he has himself waived the obligation of secrecy which would otherwise exist.
Further, it would seem obvious that plaintiff's physical illness and the degree of its stage of advancement may manifest itself by other physical and mental side-effects. One prosecuting a claim such as this may not use his illness as both sword and shield (cf., Capron v Douglass, 193 N.Y. 11, 17).