(on reassignment).
The complaint in this action seeks to recover damages alleged to have resulted from a breach of duty of a confidential physician-patient relationship. From summary judgment granted to the defendant the plaintiff appeals.
On July 16, 1965, the plaintiff herein, Betty Schaffer, was granted a divorce from Virgil Dornbusch. Pursuant to the divorce decree, Betty was given custody of their three children. On September 8, 1966, the circuit court of Brown County entered an order approving an agreement between Virgil and Betty allowing Virgil to have custody of the children until December 1, 1966. On November 30, 1966, the circuit court issued an order to Betty to show cause why said children should not remain with Virgil for the remainder of the school year then in progress. After a hearing, the court entered judgment on April 14, 1967, granting custody of the children to Virgil. We reversed this judgment. Dornbusch v. Dornbusch, 1968, 83 S.D. 524, 162 N.W.2d 283. *38The circuit court on January 10, 1969, issued an order to Virgil to show cause why he should not be adjudged in contempt for failure to deliver the children to Betty. Then on January 15, 1969, the circuit court deferred entry of this order to Virgil and required Betty to show cause on January 23, 1969, why custody of the children should not remain with Virgil. Attached to the moving papers of this latter proceeding was an affidavit of the defendant herein, Dr. Edward R. Spicer, a psychiatrist, upon which the plaintiffs claims in the present action are based.
Defendant’s affidavit consisted of nearly eight papers of single-spaced typing going into extensive detail and divulging much information that he received from the physician-patient relationship while consulting and treating Betty between September 5, 1964 and September 17, 1964. The defendant delivered this affidavit to Virgil’s attorney.
It is plaintiff’s position that the defendant be held answerable in damages for wrongfully disclosing in his affidavit confidential information he acquired while treating her. Plaintiff relies on SDCL 19-2-3 which provides:
“A physician or surgeon, or other regular practitioner of the healing art, cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.”
The above statute imposes a duty upon a physician or other healing practitioner to keep confidential or privileged, information gained while in professional attendance of a patient.1 If a practitioner of the healing art breaches that duty by making any unauthorized disclosure of confidential information he may be liable to the patient for resulting damages. Simonsen v. Swenson, 1920, 104 Neb.224, 177 N.W. 831; Quarles v. Sutherland, 1965, 215 Tenn. 651, 389 S.W.2d 249; Hammonds v. Aetna Casualty & Surety Company, 1965, D.C.Ohio, 243 F.Supp. 793.
*39Defendant contends that Betty consented or waived under SDCL 19-2-6 the confidential relationship by her testimony and participation in the prior divorce trial and show cause hearings and that the information in the affidavit should be published in the best interests of the children.
First, quoting SDCL 19-2-3, supra, then SDC 1960 Supp. 36.0101(3), the court in Hogue v. Massa, 80 S.D. 319, 123 N.W.2d 131, wrote:
“It expresses a long-standing public policy to encourage uninhibited communication between a physician and his patient. * * * In promulgating Section 499, the legislature declared: ‘There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate;’ ”.
The court then considered the claim that the patient had waived the privilege afforded by the statute and, in that connection, said of an earlier opinion in which it held the privilege statute should be given a strict construction, “[i]n this the court was in error’.’ After quoting now SDCL 2-14-12, requiring a liberal construction of statutes, it concluded:
“In obedience to this legislative mandate it is our duty to effectuate the purposes of the statute. In other words, it is to be liberally construed in favor of the patient. * * * ‘it must clearly appear there is an intention to waive, and a court will not run to such a conclusion’, (citing cases) The burden of establishing this is on the party asserting the claim of waiver.”
Those expressions both bind us here and meet with our approval.
We have examined the testimony and affidavits in the record before us concerning the prior divorce trial and later hearings. Betty’s testimony only indicates that she consulted the defendant and he diagnosed her problems. We find no evidence on her part concerning the nature and extent of any illness or treatment, nor is there testimony relating to any communications with the defendant.
*40It is true that when a court is called upon to determine custody of children in a divorce or other proceeding, it must consider all circumstances, including the relative fitness of each parent to further the children’s best interests and welfare. We are not concerned with what the doctor might be compelled to disclose if he were a witness giving evidence in a court of law. The affidavit was first published to a third party, Virgil’s attorney at his request, and not to a court upon its order. In Hammonds v. Aetna Casualty & Surety Company, D.C. Ohio, 243 F.Supp. 793, 805, the court wrote:
“Second, assuming, but without deciding, that the plaintiff waived the testimonial privilege because of the deposition, this ‘waiver’ does not authorize a private conference between doctor and defense lawyer. It is one thing to say that a doctor may be examined and cross-examined by the defense in a courtroom, in conformity with the rules of evidence, with the vigilant surveillance of plaintiff’s counsel, and the careful scrutiny of the trial judge; it is quite another matter to permit, as alleged here, an unsupervised conversation between the doctor and his patient’s protagonist. It is the opinion of this Court that the mere waiver of a testimonial privilege does not release the doctor from his duty of secrecy and from his duty of loyalty in litigation, and no one may be permitted to induce the breach of these duties.”2
The interest of the children can be protected from the witness stand. Furthermore, as set forth below, defendant’s affidavit is not properly admissible in the custody hearing for which it was intended.
There is some authority that a physician may be liable to his patient for disclosing confidential information in a judicial proceeding where the information is inadmissible in the particular case or irrelevant to the issues involved. Smith v. Driscoll, 1917, *4194 Wash. 441, 162 P. 572. A final decree awarding custody of a child based upon an agreement or findings of the court is a judgment of the court and is conclusive between the parties if no change of circumstances affecting the welfare of the children is shown. The jurisdiction of the court cannot be invoked to inquire into the same or other facts existing at the time or prior to a former decree. The information contained in defendant’s affidavit existed at the divorce trial and subsequent custody proceedings. Clearly, the information was inadmissible under our rule requiring a change of circumstances in a new proceeding to change the custody of children. Hershey v. Hershey, 1970, 85 S.D. 85, 177 N.W.2d 267. It could not be used in the show cause hearing for which it was obtained.
The physician-patient privilege expresses a long-standing policy to encourage uninhibited communication between a physician and his patient. Our legislature has provided for waiver of this privilege under SDCL 19-2-6 when a patient testified as to any particular communication.
We have examined plaintiff’s testimony in the record before us for the divorce action and subsequent hearings prior to publication by affidavit to Virgil’s attorney. We find no testimony pertaining to communications with the defendant psychiatrist permitting waiver or consent to the publication of the information in the affidavit.
The complaint also alleges that the statements in the affidavit were false and malicious causing injury to plaintiffs reputation. It is not appropriate on this appeal to determine the law of defamation applicable to this publication. The issue of truth or falsity of a statement is for the trier of fact. The same is generally true when one’s state of mind is involved. Vandenburg v. Newsweek, Inc., 1971, 5 Cir., 441 F.2d 378, cert. den., 404 U.S. 864, 92 S.Ct. 49, 30 L.Ed.2d 108.
Plaintiff’s complaint further alleges that defendant negligently diagnosed her condition. Summary judgment is not usually suitable for negligence actions. Wilson v. Great Northern Railway Company, 1968, 83 S.D. 207, 157 N.W.2d 19; Wright & Miller, Federal Practice and Procedure, § 2729, p. 559.
*42It is unnecessary to determine the validity of the claims of libel and negligence alleged in the complaint. We hold the record before us does not show plaintiff waived the physician-patient privilege and the trial court erred in entering a summary judgment for defendant.
The judgment is reversed.
WOLLMAN, DOYLE and DUNN, JJ., concur. WINANS, J., dissents.. It is undisputed that the physician-patient relationship existed between the parties at the time the defendant acquired this information.
. In Alexander v. Knight, 1962, 197 Pa.Super. 79, 177 A.2d 142, the court, in speaking of the loyalty required of a doctor to his patient feature, said: “That further includes a duty to refuse affirmative assistance to the patient's antagonist in litigation.” An interesting discussion of this subject appears in Furniss v. Fitchett, 1958, N.Z.L.R. 396, an opinion by the Supreme Court of Wellington, New Zealand.