Schaffer v. Spicer

WINANS, Justice

(dissenting).

The Dornbusch divorce action has been in and out of court many times. The plaintiff in this action was Betty Dornbusch and this action is but another facet of the continuing court skirmishes. The affidavit furnished by the defendant was for use within the confines of the Dornbusch case and it was concerned with the issues of the plaintiffs mental condition and her fitness or lack thereof for the benefit of the court in awarding the custody of the children of that marriage. With respect thereto the affidavit contained details of the information acquired by the defendant from the plaintiff during his treatment of her, much of which was in the presence of her then husband and paid for by such husband. In the course of the Dornbusch case and prior to the defendant’s disclosure of the information in his affidavit the plaintiff had offered herself as a witness and had testified about her three nervous breakdowns and the care of the same, about her presence in the Yankton State Hospital and the advice of her doctors there, about her mental and physical condition in general, about her hysteria and the events leading up to her breakdowns, about the fact she consulted with the defendant and received shock therapy under his direction, and about the fact that she consulted with and was treated by a psychiatrist in Michigan. The defendant’s position in this case, among others, is that pursuant to SDCL 19-2-6 the plaintiff has waived any claim of privilege she may otherwise have asserted with respect to her communications with the defendant and the information he gained therefrom since she offered herself as a witness in the Dornbusch case and testified concerning her mental condition. SDCL 19-2-6 provides:

*43“If a person offer himself as a witness he thereby waives any privilege he might otherwise claim, which would prevent the examination of his attorney, spiritual adviser, or healing practitioner on the same subject within the meaning of §§ 19-2-2 to 19-2-4, inclusive. If a person once waives such privilege, as to any particular communication, he cannot thereafter claim it.”

In determining whether or not SDCL 19-2-6 is applicable to the present case, it is significant that, the plaintiff did not testify in the Dornbusch case about her communications with the defendant; rather, she merely testified about her mental condition in general, including the fact that she had had a nervous breakdown and that the defendant had treated her for it. Thus, the question is presented whether under SDCL 19-2-6 a patient’s testimony about her ailment and about her consultation with defendant and the shock therapy she received, without further testimony concerning communication between the physician and herself, constitutes a waiver.

This court has never before considered how far a patient’s testimony may extend before he may be deemed to have waived the patient-physician privilege. However, the issue was recently presented to the Supreme Court of Oklahoma in Robinson v. Lane, 1971, Okla., 480 P.2d 620. In Robinson, the plaintiff offered himself as a witness and testified as to the nature and extent of injuries he sustained in an accident. In that case, as in the present, the plaintiff did not testify concerning his communications with his physician. However, the Oklahoma court expressly reversed an earlier decision1 and held that under a statute almost identical to SDCL 19-2-62 the plaintiff had waived his privilege with respect to his communications with his physician. In so holding the Court states:

“In our opinion, when a litigant testifies concerning a particular ailment and its treatment, he has removed the reasons for the privilege. Ry his own conduct, he has made known to a jury and the public the ailment or dis*44ability he is suffering. After such public disclosure, there is no longer any need for the application of the privilege. We think the better rule, and the one required by the language of subsection 6, § 385, is that he has waived the privilege and the opposing party may call as witnesses any physicians who have attended him for the same ailment or disability the nature and extent of which the patient described in his testimony.”

This is also the result advocated in Wigmore, Evidence In Trials at Common Law § 2389(2) at 856-859 (McNaughton Rev. 1961).

I find the reasoning of the Oklahoma Supreme Court in the Robinson case persuasive and dispositive of the present cáse. Accordingly, it is my conclusion that the plaintiff waived the-physician-patient privilege and in effect destroyed the confidentiality of her communications with the defendant by offering herself as a witness and testifying about the same ailment for which the defendant treated her. Thus, the information contained in the defendant’s affidavit was admissible in the Dornbusch case and he cannot be held liable to the plaintiff for making the disclosure.

Furthermore, of a great deal more importance to the author of this dissent is my opinion that the rights of plaintiff’s children are paramount to any claim of privilege she might otherwise have.

In considering this case one should not lose sight of how it actually arose. The issue with which we are now concerned grew out of the action taken by Dr. Spicer in response to a request for information that would be ultimately used in a custody proceeding. The availability of pertinent evidence concerning the environment to which children will be exposed should be of vital importance to the courts. This Court in Huckfeldt v. Huckfeldt, 82 S.D. 344, 146 N.W.2d 57 stated:

“The applicable legal principles are well settled by our decisions. The welfare of the children is of paramount consideration and superior to the legal rights and claims of either parent.”3

*45The principle “the welfare of the children is of paramount consideration” has been followed in our consideration of custody matters without fail.

Now, however, we have retreated from this position. The decision of this Court puts the rights of the parent in a superior position. The interests of the children have been relegated to a position secondary to the rights of the parent, in an attempt to determine whether or not the patient-physician privilege should apply. If this Court really intends the welfare of the children to be of paramount importance, then we should put this issue in its proper perspective. The question of whether we should invoke the patient-physician privilege in custody cases should not be of greater importance than the consideration of making available probative evidence concerning what is actually best for the welfare of the children.

Although there is but limited authority, precedent does exist for the proposition that, without any claim of consent or waiver, the physician-patient privilege must yield in a custody proceeding to the paramount rights of the infant. In People v. Fitzgerald, 40 Misc.2d 966, 244 N.Y.S.2d 441, the Supreme Court of New York so held, over objection of a husband, in granting a request by his wife in a custody proceeding for an examination by a court of the husband’s hospital records containing allegedly confidential records pertaining to the psychological examination of the husband’s mental condition. The Court stated:

“The precise question as to whether the court may disregard the patient-physician privilege in a custody proceeding does not appear to have been ruled upon by the courts of this state. There is, of course, ample authority indicative of the court’s right to discover the mental condition of a party in a matrimonial matter . Significantly, in a custody proceeding, it was intimated that even the full faith and credit clause of the United States Constitution does not prevent the court from exercising its duty for the protection of minor children. Thus, in enunciating the concept of parens patriae, the Court, in Bachman v. Mejias (1 N.Y. 2d 575, at page 581, 154 N.Y.S.2d 903, at page 907, 136 N.E.2d 866, at *46page 869), held that this concept ‘transcends the rule of comity’ and that this rule must ‘yield when it conflicts with the dominant domestic duty of the court to guard the welfare of its wards. The individual rights of infants to invoke the protection of the State in which they reside cannot be ignored.’
It is thus clear to me that, in the exercise of the court’s inherent power to do what is best to protect the welfare of the infant, the right of the petitioner to invoke the patient-physician privilege must yield to the paramount rights of the infant.” 244 N.Y.S.2d at p. 442.

The Dornbusch marital affairs are one thing. We cannot help the situation giving rise to their troubles, nor are we under any duty to do so, but we are under an obligation which we have recognized over and over again, as have the courts in all of the states of this land, and that duty lies in doing the very best we can to see that the rights of young children are properly protected. Their welfare comes first. Dr. Spicer was exercising that same regard for the welfare of the children; at least, he was putting forth evidence which the court might consider. I recognize that affidavits have been branded by this court, rightly,, as the weakest form of evidence; but nevertheless, if either side had wanted to put Spicer under oath, subject to cross-examination, with the consent of the trial court it might have been done. I cannot conceive of any trial court in South Dakota refusing such a request.

I would affirm the trial court.

. See Hudson v. Blanchard, Okl., 294 P.2d 554 (1956).

. See Okla.Stat.Ann. Tit. 12, § 385 (1960).

. Citing Hoaas v. Hoaas, 75 S.D. 55, 59 N.W.2d 254.