The right of waiver given by the statute has been held to be one which pertains to the person and character of the patient and not such as belongs to a representative of property rights. In Westover v. Aetna Life Ins., 99 N.Y. 56, it was said that "An executor or administrator does not represent the deceased for the purpose of making such a waiver. He represents him simply in reference to rights of property, and not in reference to those rights which pertain to the person and character of the testator.
156, 47 P. 1019; Re Flint's Estate, 100 Cal. 391, 34 P. 863; Westover v. Aetna Ins. Co., 99 N.Y. 56, 52 Am. Rep. 1, 1 N.E. 104; Renihan v. Dennin, 103 N.Y. 573, 57 Am. Rep. 770, 9 N.E. 320; Loder v. Whelpley, 111 N.Y. 239, 18 N.E. 874; note, 17 Am. St. 570.) The interpretation given by the courts of the state where a statute originated and before the adoption of such statute by Idaho should be controlling. The origin of C. S., sec.
We quote as follows: "It is settled by the recent New York decisions that, under the statutes of the state, the only person who can waive the prohibition is the patient himself, from whom the physician acquired the information, and that after his death the prohibition cannot be waived by any one. Westover v. Aetna L. Ins. Co., 99 N.Y. 56 (1 N.E. 104), 52 Am. Rep. 1; Renihan v. Dennin, 103 N.Y. 573 (9 N.E. 320), 57 Am. Rep. 770; Loder v. Whelpley, 111 N.Y. 239 (18 N.E. 874). In the case of Renihan v. Dennin, 103 N.Y. 573 (9 N.E. 320), 57 Am. Rep. 770, EARL, J., who delivered the opinion of the court, said: `It is probably true that the statute, as we feel obliged to construe it, will work considerable mischief.
) The court erred in admitting the testimony of the attending physicians, as it was based on information derived from the deceased while a patient, and was, therefore, a privileged communication, which could not be waived by the heirs of the deceased. (Estate of Flint , 100 Cal. 392, 396, 397; In re Mullin , 110 Cal. 255; Westover v. Aetna Life Ins. Co ., 99 N.Y. 56; 52 Am. Rep. 1.) The court erred in stating the rule as to the measure of damages.
The court erred in allowing the witness Dr. McLean to testify that he prescribed for the testator for mental trouble while he was his attending physician. ( Code Civ. Proc., sec. 1881, part 4; Streeter v. City of Breckenridge , 23 Mo.App. 244; Westover v. Aetna Life Ins. Co ., 99 N.Y. 56; 52 Am. Rep. 1; Briggs v. Briggs , 20 Mich. 34; Renihan v. Dennin , 103 N.Y. 573; 57 Am. Rep. 770; Loder v. Whelpley , 111 N.Y. 239; Heuston v. Simpson , 115 Ind. 62; 7 Am. St. Rep. 409; Freel v. Market St. Cable Ry. Co ., 97 Cal. 40.) The court erred in admitting evidence offered to show improper relations between the testator and his widow before their marriage and during the life of his first wife, as it had no tendency to show undue influence exercised at the time the will was executed, some nine years thereafter.
It, therefore, protects not only physician-patient communications, but also observations made by the doctor in the course of treatment (Richardson, Evidence [Prince, 10th ed], § 432) and extends to hospital records as well (Matter of Coddington, 307 N.Y. 181, 195). It is a privilege which belongs to the patient (Prink v. Rockefeller Center, 48 N.Y.2d 309, 314), but may be asserted by any party to the litigation, such as the plaintiff herein (Westover v. Aetna Life Ins. Co., 99 N.Y. 56; CPLR 4504, subd. [c]). The privilege is not terminated by the death of the patient alone (Prink v. Rockefeller Center, 48 N.Y.2d 309, 314, supra) and it not only prohibits a physician's testimony at trial but also prevents the disclosure in pretrial proceedings (Lorde v. Guardian Life Ins. Co. of Amer., 252 App. Div. 646).
When defendant came into New York to do business it subjected itself to the laws of that State, which were made for the protection of the citizens thereof. Davis v. Supreme Lodge, 165 N.Y. 159; Hoyt v. Hoyt, 112 N.Y. 493; Weston v. Insurance Co., 99 N.Y. 56; Story, Conflict of Laws, 7th ed. § 556; Taylor on Evidence, § 917. The rules of evidence applied in a case are part of the law of the forum.
In that case the Supreme Court said, at page 471, 19 S.Ct. at page 3: "The primary and ordinary meaning of the words `representatives,' or `legal representatives,' or `personal representatives,' when there is nothing in the context to control their meaning, is `executors or administrators,' they being the representatives constituted by the proper court. [Citing authorities]" See also 2 Jarman, Wills (7th ed. 1930) 1585; 2 Williams, Executors (12th ed. 1930) 729; Page, Wills (1901) § 533. The appellant relies upon Hutchins v. Hutchins, 1919, 48 App.D.C. 495; Stafford v. American Security Trust Co., 1931, 60 App.D.C. 380, 55 F.2d 542; Labofish v. Berman, 1932, 60 App.D.C. 397, 55 F.2d 1022; Westover v. Aetna Life Ins. Co., 1885, 99 N.Y. 56, 1 N.E. 104, 52 Am.Rep. 1; Reinhan v. Dennin, 1886, 103 N.Y. 573, 9 N.E. 320, 57 Am.Rep. 770; Loder v. Whelpley, 1888, 111 N.Y. 239, 18 N.E. 874; and In re Will of Hunt, 1904, 122 Wis. 460, 100 N.W. 874. We think the three local cases are not controlling and the other cases not persuasive.
However, it has been held that at the trial any party to the action may object to evidence which comes within the prohibition of the statute, and it remains for the patient to waive the privilege. See Westover v. Aetna Life Ins. Co. ( 99 N.Y. 56, 59-60). That principle, however, does not authorize a physician or any agency acting in his behalf — as is the State in the present case — to decline to inform the patient in private conference of steps taken to effect the cure which the physician has undertaken. For this purpose, we are able to conceive of no reason why the committee of an incompetent patient, acting to further the interests of his ward, should be treated in a manner different from the patient himself.
After the death of the testator, there is no one to waive the privilege. Westover v. Aetna Life Insurance Company, 99 N.Y. 56, 1 N.E. 104; Reinhan v. Dennin, 103 N.Y. 573, 9 N.E. 320. The presence of the client's confidential agent does not destroy the privilege.