Mrs. Ruth YOW
v.
Dave Edward PITTMAN, Jr., and William D. Gaston.
No. 313.
Supreme Court of North Carolina.
November 3, 1954.*298 Mary Gaither Whitener, Louis A. Whitener, Hickory, for plaintiff, appellee.
James C. Smathers, Hickory, for defendant William D. Gaston, appellant.
HIGGINS, Justice.
The defendants applied for an order of court permitting them to take, and requiring Dr. Brenizer to submit to the taking of, a deposition "pertaining to his examination, medical history secured by him, his diagnosis and treatment of the plaintiff, * * *." Such a deposition would require the physician to disclose not only his clinical findings, diagnosis and treatment, but "the history secured by him" from the plaintiffinformation of a very confidental nature.
The defendants do not proceed under the deposition statute, G.S. § 8-71, broad as its provisions are: "Any party in a civil action or special proceeding, upon giving notice to the adverse party or his attorney as provided by law, may take the depositions of persons whose evidence he may desire to use, without any special order therefor, unless the witness shall be beyond the limits of the United States." This statute does not contemplate the taking of deposition of a person disqualified to give evidence in the case. It confers no right to investigate or inquire into matters which the court could not investigate and inquire into in the actual trial. The deposition statute, therefore, must be considered in connection with G.S. § 8-53, which provides: "Communications between physician and patient.No person, duly authorized to practice physic or surgery, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon: Provided, that the presiding judge of a superior court may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice." (Emphasis added.)
One of the objects of this statute is to encourage full and frank disclosure to the doctor. The law protects the patient's secrets and makes it the duty of the doctor to keep them, a duty he cannot waive. The veil of secrecy can be drawn aside only by the patient or by "the presiding judge of a superior court", and by him only when the ends of justice require it.
In construing C.S. § 1798, now G.S. § 8-53, Justice Brogden, in the case of Sawyer v. Weskett, 201 N.C. 500, 160 S.E. 575, said: "C.S. § 1798, prescribes the privilege protecting physicians in disclosing confidential information acquired in the course of employment in treating a patient. This statute was construed in Metropolitan Life Ins. Co. v. Bobbie, 194 N.C. 199, 139 S.E. 228, and in State v. Newsome, 195 N.C. 552, 143 S.E. 187, 191. The opinion in the Newsome case, supra, declares: `If the statements were privileged under this *299 statute, then, in the absence of a finding by the presiding judge, duly entered upon the record, that the testimony was necessary to a proper administration of justice, it was incompetent, and, upon defendant's objection, should have been excluded.'"
The statute contemplates a superior court in term. As stated in the cases cited, the presiding judge must enter his findings upon the record. This he can do only in term and after hearing. While Judge Rudisill was a Judge of the Superior Court, he was not at the time the presiding judge of a superior court in term. He had no authority to enter the requested order in Chambers. It follows, therefore, that he was correct in denying the motion as a matter of law.
Affirmed.