The action below was *Page 472 brought by Edgar C. Steinharter for the value of his services as a physician, alleged to have been rendered to his patient, Hannah Petrucelli.
Plaintiff recovered a judgment, and error is now prosecuted to reverse that judgment on the grounds, first, that the court abused its discretion in refusing to grant defendant's motion for a postponement of the trial; second, the court erred in the admission of evidence. The reason assigned in the motion for a continuance was that the defendant was unable, by reason of illness, to attend court on the day set forth for trial, and that the defendant's testimony was material.
The case was filed in October, 1924. Additional time was given to answer, and, later, an answer was filed by leave. On November 4, 1925, a motion for continuance was filed, with an affidavit of counsel and the affidavit of Dr. H.C. Wendel. On hearing of the motion, the attorney for defendant stated that there were various witnesses, whose names he had not been able to learn. He also stated that there was an action for damages pending for malpractice, filed by this defendant, against the plaintiff, involving the same facts, and requiring the same witnesses. In the affidavit the attorney stated that if his client were present she would testify that she did not incur the obligation, and that the operation was performed without her consent, and over her objection; and in his examination before the court, he admitted that the physical presence of this defendant was not any assistance to her attorney, or the defense of the case.
It appears from the bill of exceptions that after notice in the Court Index, counsel for defendant *Page 473 was present on October 2, 1925, when this case was called for setting, and the court at that time set the case for trial on November 5. The court continued the cause over to the following day, and ordered the deposition of defendant to be taken, and all objections as to time waived, it appearing from a conference between Dr. Wendel and the court that the defendant was not confined to her bed, or even to her home, and that her deposition could be taken without injurious effects, and also that there was no prospect of her condition improving without an operation, which had not been agreed to by her and might never take place.
The deposition was taken and read in the cause, which went to trial on November 6th.
Under the facts, as stated herein, we do not consider that the action of the trial court was arbitrary or constituted an abuse of discretion, in overruling the motion for a continuance.
The second assignment of error is that the court erred in admitting evidence, which was claimed to have consisted of confidential communications between a physician and patient, and was therefore privileged, under Section 11494, General Code.
We must bear in mind that this is a case wherein a physician is bringing an action for fees for services rendered; that there was also a suit pending against the physician for malpractice for this very operation; further, that the defendant by answer denied that she employed the plaintiff to render medical services or to perform an operation; that the evidence admitted was as to what the physician did with reference to the case, and that the deposition of the defendant with reference to this claim was on file and was later read in the case. *Page 474
It may be that one or two of the questions asked were asked out of order and should not have been answered until after the deposition of the defendant was read.
It is said in 2 Mechem on Agency (2d Ed.), Section 2313, in referring to confidential communications between an attorney and client, which are in the same category as those between a physician and his patient:
"But the attorney may disclose information received from the client when it becomes necessary for his own protection, as if the client should bring an action against the attorney for negligence or misconduct, and it became necessary for the attorney to show what his instructions were, or what was the nature of the duty which the client expected him to perform. So if it became necessary for the attorney to bring an action against the client, the client's privilege could not prevent the attorney from disclosing what was essential as a means of obtaining or defending his own rights."
The questions which were allowed to be answered were only such questions as were essential in order to show the employment of the physician, and the services which he performed.
We find no error prejudicial to the plaintiff in error. The judgment of the court of common pleas will be affirmed.
Judgment affirmed.
HAMILTON and CUSHING, JJ., concur. *Page 475