No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 30 January 2020
This essay examines the origins of physician-patient privilege in the United States. It concentrates an 1828 New York law that protected medical confidentiality in the courtroom—the first statutory guarantee of physician-patient privilege—as well as the rapid spread of privilege statutes throughout the nineteenth century. Using the published notes of the authors of New York’s influential statute alongside other primary sources, I argue that these early statutes are best explained as the result of nineteenth-century efforts to codify American law. The medical profession took little note of physician-patient privilege until much later, indicating that privilege emerged not as a protection of doctors’ professional status, nor as a means of protecting patients in the courtroom, but rather as an inadvertent offshoot of attempts to streamline and simply judicial proceedings. It is perhaps because of these unsystematic origins that physician-patient privilege still remains such an unevenly applied rule in American courtrooms.
1. On the law of Evidence today, see Broun, Kenneth C., McCormick on Evidence, 7th ed. (Eagan, MN, 2013)Google Scholar. In criminal cases, federal courts operate under the Federal Rules of Evidence, which were adopted in 1975 and do not include physician-patient privilege. In civil cases, federal courts operate according to the laws of the state in which the suit is adjudicated—physician-patient privilege is observed in those states that have privilege statutes and not observed in those states that do not have statutes. Federal Rules of Evidence, H.R. Rep. No. 93-650, 93rd Cong., 1st sess. 28 (1973), rule 501.
2. To date, the most thorough treatment of this history has occurred in legal treatises, where legal scholars have traced the evolution of various privilege statutes over the course of the nineteenth and twentieth centuries. For examples, see Wigmore, John Henry, A Treatise on the System of Evidence in Trials at Common Law Including the Statutes and Judicial Decisions of All Jurisdictions of the United States, vol. 4 (1st ed., Boston, 1905)CrossRefGoogle Scholar; DeWitt, Clinton, Privileged Communications Between Physician and Patient (Springfield, Ill., 1958)Google Scholar; and Imwinkelried, Edward J., The New Wigmore: Evidentiary Privileges (3rd ed., New York, 2016)Google Scholar. The best historical analysis of physician-patient privilege is Maehle, Andreas-Holger, Contesting Medical Confidentiality: Origins of the Debate in the United States, Britain, and Germany (Chicago, 2016)CrossRefGoogle Scholar. Ferguson, Angus, Should a Doctor Tell? The Evolution of Medical Confidentiality in Britain (Farnham, 2013)Google Scholar, offers an overview of similar developments in the United Kingdom. Legal examinations such as Daniel Shuman, “The Origins of Physician-Patient Privilege and the Professional Secret,” Southwestern Law Journal 39, no. 2 (June 1985): 661–88Google Scholar, offers useful information on the evolution of legal arguments for and against physician-patient privilege in America, but does not analyze the social context in which these statutes arose or their effects on the medical profession.
3. Wigmore, On Evidence, 1st ed., 4:348–49.
4. The Trial of Elizabeth Duchess Dowager of Kingston for Bigamy (London, 1776), 119–20.
5. Rex v. Gibbons, 1 Car & P 97 (1823); Broad v. Pitt, 3 C & P 518 (1828); Peake, Thomas, A Compendium on the Law of Evidence (Philadelphia, 1812), 183Google Scholar; Phillips, Samuel March, A Treatise on the Law of Evidence: First American Ed., from the Second London Ed. (New York, 1816), 104Google Scholar; Starkie, Thomas, A Practical Treatise on the Law of Evidence and Digest of Proofs in Civil and Criminal Proceedings, vol. 2 (Philadelphia, 1834), 230Google Scholar.
6. By the late eighteenth century, medical confidentiality was widely recognized as one of the foundational principles of medical ethics, from the early 1730s, every physician graduating from the University of Edinburgh Medical School—one of the world’s premier medical schools and a popular choice among elite colonial American physicians— swore: “[I A.B. do solemnly declare that I will] practice physic cautiously, chastely, and honourably; and faithfully to procure all things conductive to the health of the bodies of the sick; and lastly, and never, without great cause to divulge anything that ought to be concealed, which may be seen or heard during professional attendance.” “Edinburgh University Medical Oath, Circa 1732–1735 Onward,” quoted in Baker, Robert, Before Bioethics: A History of American Medical Ethics from the Colonial Period to the Bioethics Revolution (Oxford, 2013), 37CrossRefGoogle Scholar. Likewise, the most important writers on the subject of medical ethics frequently extolled the need for confidentiality: Percival, Thomas, Medical Jurisprudence or a Code of Ethics and Institutes, Adapted to the Professions of Physic and Surgery (Manchester, 1794)Google Scholar; Percival, Thomas, Medical Ethics or a Code of Ethics and Institutes, Adapted to the Professions of Physic and Surgery (London, 1803)Google Scholar; Gregory, John, Observations on the Duties and Offices of a Physician, and on the Method of Prosecuting Enquiries in Philosophy (London, 1770)Google Scholar; Gregory, John, Lectures on the Duties and Offices of a Physician (London, 1772)Google Scholar; Gregory, John, John Gregory’s Writings on Medical Ethics and the Philosophy of Medicine (Dordrecht, 1998)Google Scholar. On the subject of privilege, Gregory and Percival were divided: Gregory believed that confidentiality ought to extend into the courtroom, while Percival did not. On the history of medical ethics in general, see Baker, Before Bioethics; Baker, Robert, Caplan, Arthur, Emanuel, Linda, and Latham, Stephen, The American Medical Ethics Revolution: How the AMA’s Code of Ethics Has Transformed Physicians’ Relationships to Patients, Professionals, and Society (Baltimore, 1999)Google Scholar; Jonsen, Albert R., A Short History of Medical Ethics (Oxford, 2008)Google Scholar; and Konold, Donald E., A History of American Medical Ethics, 1847–1912 (Madison, 1962)Google Scholar.
7. Andrew, Donna T, “The Code of Honour and Its Critics: The Opposition to Dueling in England, 1700–1850,” Social History 5, no. 33 (1980): 409–34CrossRefGoogle Scholar; Andrew, Donna, Aristocratic Vice: The Attack on Dueling, Suicide, Adultery, and Gambling in Eighteenth Century England (New Haven, 2013)CrossRefGoogle Scholar; Kiernan, V. G., The Duel in European History: Honour and the Reign of Aristocracy (Oxford, 1988)Google Scholar.
8. As a surgeon, Hawkins would have occupied the lowest station within a rigidly hierarchical medical profession. As an aristocratic gentleman, however, Hawkins could make claims that few if any other medical professionals could. A few years after the Duchess of Kingston’s trial, Hawkins would be knighted for his services to the crown. Several historians and legal scholars have recently reexamined this case: Mendelson, Danuta, “The Duchess of Kingston’s Case, the Ruling of Lord Mansfield and Duty of Medical Confidentiality in Court,” International Journal of Law and Psychiatry 35 (2012): 480–89CrossRefGoogle ScholarPubMed; Ferguson, Angus, “The Lasting Legacy of a Bigamous Duchess: The Benchmark Precedent for Medical Confidentiality,” Social History of Medicine 19 (2006): 37–53CrossRefGoogle ScholarPubMed; Ferguson, Angus, Should a Doctor Tell?: The Evolution of Medical Confidentiality in Britain (Farnham, Surrey, 2013)Google Scholar.
9. Beattie, J. M., “Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,” Law and History Review 9, no. 2 (1991), 221–67CrossRefGoogle Scholar; Langbein, J. H., “Historical Foundations of the Law of Evidence: A View from the Ryder Sources,” Columbia Law Review 96, no. 5 (1996): 1168–1202CrossRefGoogle Scholar; and Shapiro, Barbara, A Culture of Fact: England, 1550–1720 (Ithaca, 2000)Google Scholar.
10. Oldham, James and Mansfield, William Murray, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Chapel Hill, 1992)Google Scholar.
11. Sherman v. Sherman; and Wigmore, On Evidence 1st ed., 4:3348.
12. The society failed to mention the name of the case, merely stating that “secrecy was vindicated to a physician (by a superior court of Philadelphia, 1800) refusing the disclosure of his professional acts, against a plaintiff suing for Divorce on the plea of adultery.” Medical Society of the State of New York, System of Ethics (Albany, 1823), 21–22.
13. See, for example, Phillips, Samuel March, A Treatise on the Law of Evidence: First American Ed. (New York, 1816), 104Google Scholar.
14. Term Reports in the Court of King’s Bench: from Michaelmas Term 31st George III. 1790 to Trinity Term, 32nd George III. 1792. Both Inclusive (London, 1799), 760.
15. Wilson v. Rastall had little to do with medical testimony, but rather focused on the scope of attorney-client privilege. On Wilson v. Rastall and its implications for physician-patient privilege, see Ferguson, Should a Doctor Tell?, 24. On the related history of attorney-client privilege, see Wigmore, On Evidence 1st ed., 3194–3256; and Dawson, T. C. Jr., “The Attorney-Client Privilege,” University of Richmond Law Review 19 (1984): 560–99Google Scholar. Wigmore traces attorney-client privilege to the late sixteenth century. Some recent scholarship contests that attorney-client privilege was not widely recognized until much later. According to these histories, while privilege was sometimes accepted in earlier trials, it was not until the 1833 case, Greenough v. Gaskill, that privilege was widely recognized under common law. See Imwinkelried, The New Wigmore: Evidentiary Privileges, 163; and Geoffrey C. Hazard Jr., “An Historical Perspective on the Attorney-Client Privilege.” University of Pennsylvania Law School Scholarship Repository Paper 1068 (1978).
16. Wilson v. Rastall; Rex v. Gibbons; Broad v. Pitt; and Ferguson, Should a Doctor Tell?, 24.
17. There was some debate as to whether priests and other religious figures would have been barred from testifying at trial. Despite the arguments of several judges, however, “the almost unanimous expression of judicial opinion (including at least two decisive rulings) [denied] the existence of a privilege [protecting communications between priest and penitent].” Wigmore, On Evidence, 1st ed., 4:3362–63.
18. Peake, Thomas, A Compendium on the Law of Evidence (London, 1804), 175Google Scholar.
19. Phillips, A Treatise on the Law of Evidence, 104.
20. Ferguson, Should a Doctor Tell?, 24.
21. Pound, Roscoe, The Formative Era in American Law (Boston: 1938)Google Scholar; Horwitz, Morton, The Transformation of American Law, 1780–1860 (Cambridge, Mass., 1977)Google Scholar; Tomlins, Christopher, Law, Labor, and Ideology in the Early American Republic (Cambridge, 1993)CrossRefGoogle Scholar; and Nelson, William E., The Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Athens, 1994)Google Scholar.
22. The Constitution of New York, Article XXXV (1777).
23. Howe, Daniel Walker, What Hath God Wrought: The Transformation of America, 1815–1848 (Oxford, 2007), 117–20Google Scholar, 170–76, and 216–17. The social transformations, as well as the numerous reform movements and religious revivals that emerged out of New York during this period have long been the subject of historical debate. On these social transformations and the various reform movements that emerged in New York in the 1820s, see Wilentz, Sean, Chants Democratic: New York City and the Rise of the American Working Class (Oxford, 2004)Google Scholar; Ryan, Mary, Cradle of the Middle Class: The Family in Oneida County, New York, 1789–1860 (Cambridge, 1981Google Scholar); Johnson, Paul, A Shopkeeper’s Millennium: Society and Revivals in Rochester New York, 1815–1837 (New York, 1978)Google Scholar; Bender, Thomas, ed., The Antislavery Debate: Capitalism and Abolitionism as a Problem in Historical Interpretation (Berkley, 1992)Google Scholar; and Hatch, Nathan O., The Democratization of American Christianity (New Haven, 1991)Google Scholar.
24. Cook, Charles, The American Codification Movement: A Study of Antebellum Legal Reform (Westport, 1981), 132Google Scholar; and Kellen Funk, “The Rule of Writs: Civil Justice Before the Code” (Manuscript, 10 May 2019).
25. Cook, The American Codification Movement, 155. These revisions occurred in 1789, 1801, and 1813. New York’s colonial government also revised its laws in 1752, 1762, and 1774.
26. Ibid., 132–35.
27. New York State Constitution of 1821, Article 6, Section XIII; Mohr, Doctors and the Law, 78.
28. Mohr, Doctors and the Law, 79.
29. Cook, The American Codification Movement, 69–79, 102. The term “codification” was coined by Bentham. According to Cook, “the French codification achievement … was the greatest source of tangible inspiration for the codifiers.” While many codifiers were quick to acknowledge Napoleon’s autocratic tendencies, “when they spoke of Napoleon as a law reformer, they spoke with unrepressed admiration”; to these codifiers, Napoleon was “a modern Justinian” (73–74). The code was transported to the United States in bits and pieces. The French penal code was translated and published in the American Review in 1811. The United States Law Journal also published the French Penal code along with sections of the French civil code on bankruptcy in 1823. John Rodman published a translation of the French commercial code in New York in 1811.
30. Discussion of the codification movement in this section draws upon: Cook, The American Codification Movement; Hall, Kermit, The Magic Mirror: Law in American History, 2nd ed. (New York, 2009), 139–40Google Scholar; Friedman, Lawrence, A History of American Law, 3rd ed. (New York, 2005), 391–411Google Scholar; McCurdy, Charles, The Anti-Rent Era in New York Law and Politics, 1839–1865 (Chapel Hill, 2006)Google Scholar; Grossberg, Michael and Tomlins, Christopher, eds., The Cambridge History of Law in America, Vol. II: The Long Nineteenth Century (1789–1920) (Cambridge, 2008), 95–99Google Scholar.
31. William Sampson, “Showing the Origin, Progress, Antiquities, Curiosities, and the Nature of the Common Law,” Anniversary Discourse Before the Historical Society of New York (6 December 1823) quoted in Spaulding, Norman W., “The Luxury of the Law: The Codification Movement and the Right to Counsel,” Fordham Law Review 73, no. 3 (2004): 983–96 at 986Google Scholar.
32. Ibid.
33. Spaulding, “The Luxury of the Law,” 985. This view was first championed by Warren, Charles in A History of the American Bar (Boston, 1911), 508–32Google Scholar. Warren’s thesis found numerous champions throughout the twentieth century, including Roscoe Pound, who argued that this period represented a “formative era of American Law.” Other scholars, such as Robert Gordon, have more recently challenged this thesis, however, arguing that codification often failed to achieve the lofty goals that Sampson and other reformers set. Gordon highlights the fact that, while codifiers made up a vocal subset of the bar in New York and elsewhere, there remained a larger contingent of moderate and conservative lawyers who were either indifferent to or outright opposed to codification. To Gordon, the American legal profession, “a notoriously conservative profession,” steeped in common law tradition, was never going to fully adopt codification in the early nineteenth century. Gordon, Robert W., “The American Codification Movement,” Vanderbilt Law Review 36 (1983): 431–58Google Scholar, quote at 433. Others have shifted the focus on the codification movement toward later developments, most notably the advocacy of New York attorney David Dudley Field. See, for example, Friedman, A History of American Law, 391–411; or Funk, Kellen, “Equity Without Chancery: The Fusion of Law and Equity in the Field Code of Civil Procedure, New York 1846-76,” Journal of Legal History 36, no. 2 (2015): 152–91CrossRefGoogle Scholar.
34. Lincoln, Charles Z., ed., Message from the Governors, Comprising Executive Communications to the Legislature … , 11 vols. (Albany, 1909), 2:90Google Scholar, quoted in Cook, The American Codification Movement, 138.
35. Mohr, Doctors and the Law, 80.
36. Cook, The American Codification Movement, 133.
37. Ibid., 142–43. The organization of the Revised Statutes was based on the organization of Blackstone’s Commentaries.
38. Funk, “The Rule of Writs,” 85.
39. Revised Statutes of the State of New York (Albany, 1828), 409.
40. DeWitt, Clinton, Privileged Communications Between Physician and Patient (Springfield, Ill., 1958), 15Google Scholar. DeWitt would go on to hypothesize that “admittedly the revisers were influenced to some extent by the comment of Mr. Justice Buller in Wilson v. Rastall. It seems likely, too that a compelling, if not paramount consideration was the desire to give the medical profession the same protection which the legal profession enjoyed.” In Contesting Medical Confidentiality, the most thorough historical examination of the debate surrounding medical confidentiality in the United States, Andreas-Holger Maehle echoed DeWitt, stating, “the exact circumstances of the introduction of this statute are not known… . Justice Buller’s statement in the case of Wilson v. Rastall and a wish to grant the medical profession the same privilege as the legal profession in keeping communications with clients confidential seem to have been relevant.” Maehle added a second hypothesis, stating, “the position of the Medical Society of the State of New York probably played a role here” (11–12). Likewise, Wigmore had little to say on the origins of the New York statute, merely stating that “in New York in 1828 came a statutory innovation, establishing a privilege.” Wigmore, A Treatise on Evidence 1st ed., 4:3347–48.
41. Maehle, Contesting Medical Confidentiality, 11–12.
42. Commissioners on Revision of the Statutes of New York (Albany, 1836), 3:737.
43. Medical Society of the State of New York, System of Ethics (New York, 1823); Baker, Before Bioethics, 112–23. This document would prove influential in the history of American medical ethics. According to historian Robert Baker, “The MSSNY System of Ethics reasserts physicians’ oath-sworn duty to prioritize the welfare of the patient by obligating physicians to an absolute duty of confidentiality. Courts may probe for the physician’s opinion about infanticide, bastardy, paternity, virginity, sexually transmitted diseases, or malingering, but the physician’s duty to his patients, like a priest’s duty to protect the secrets of the confessional, overrides his obligation to testify on these issues before a court of law.” In these respects, the document served as an early model for later ethical codes, including the AMA Code of Ethics, which was adopted in 1847.
44. Mohr, Doctors and the Law, 78–83.
45. Ibid., 81. A small collection of Beck’s correspondence is preserved at the New York Public Library. While this letter is all that remains linking Beck to the revision process, it is safe to assume, given the responsibilities given to Beck here, that Beck played an active role in the process.
46. Beck, Elements of Medical Jurisprudence; Beck, Theodric Romeyn, “Annual Address Delivered before the Medical Society of the State of New York, February 6, 1828,” Transactions of the Medical Society of the State of New York (Albany, 1828)Google Scholar.
47. Beck, Theodric Romeyn and Beck, John B., Elements of Medical Jurisprudence, 5th ed., vol. 2 (Albany, 1835), 661Google Scholar.
48. Mohr, Doctors and the Law, 94.
49. Cook, The American Codification Movement, 148.
50. In this respect, American codifiers differed markedly from their intellectual forebears in Britain. Bentham was vehemently opposed to evidentiary privileges. For Bentham and his influence on the law of privilege, see Imwinkelried, The New Wigmore: Evidentiary Privileges, 176–91. Beyond the Revisers’ Notes the codifiers left behind little writing on the subject of physician-patient privilege. However, William Sampson successfully made the case for a priest-penitent privilege in court before then–New York City Mayor DeWitt Clinton in 1813. Sampson, William, The Catholic Question in America: Whether a Roman Catholic Clergyman be in any case compellable to disclose the secrets Aurieular Confession (New York, 1813)Google Scholar.
51. Again, Maehle, Clinton, and Wigmore have provided the most thorough accounts of this phenomena, but each author focused more on the differences in form and language between the various statutes adopted over the course of the nineteenth century than on the underlying causes for the rapid spread of these laws. Maehle, Contesting Medical Confidentiality, 11–15; Clinton, Privileged Communications Between Physician and Patient, 15–18; and Wigmore, A Treatise on Evidence 1st ed., 4:3349–50. Perhaps the most compelling explanation of these early laws can be found in Frederick Stimson’s paper, “Privileged Communications to Physicians,” read before the Massachusetts Medical Society in 1903. In this paper, Stimson recast the debate as a contest between statutory and common law. To Stimson, states that embraced codification and statutory law were more likely to adopt physician-patient privilege. States that remained tied to the common law system, by contrast, were unlikely to adopt physician-patient privilege. Stimson, Frederick J., “Privileged Communications to Physicians,” Communications of the Massachusetts Medical Society 19, no. 1 (1904): 607–14Google Scholar.
52. The Mississippi Statute offers an excellent example of the challenges in tracing the origins and transformation of some of these early statutes. The law appears in the state’s Revised Statutes of the State of Mississippi (Jackson, 1836), 1052. Yet the law does not appear in any of the states’ later revisions and was never mentioned in later publications on the history of physician-patient privilege. See, for example, Revised Code of the Statute Laws of the State of Mississippi (Jackson, 1857); Wigmore, On Evidence, 1st ed., 3348–49; or the list of statutes compiled in the 1882 case, Gartside v. The Connecticut Mutual Life Insurance Company, 76 Mo. 446 (1882). Mississippi would again adopt physician-patient privilege in the twentieth century.
53. The Revised Statutes of the State of Missouri, Revised and Digested by the Eighth General Assembly … With the Constitutions of Missouri and the United States (St. Louis, 1835), 623.
54. Lucking, Alfred, “Privileged Communications to Physicians,” Physician and Surgeon: A Professional Medical Journal 20 (Detroit and Ann Arbor, 1898), 493–96Google Scholar; Goff, John S., “William T. Howell and the Howell Code of Arizona,” American Journal of Legal History 11, no. 3 (July 1967): 221–33CrossRefGoogle Scholar.
55. “Massachusetts Legislature,” Gloucester Telegraph (14 October 1835).
56. The Revised Statutes of the State of Wisconsin … to which are Prefixed the Declaration of Independence and the Constitutions of the United States and the State of Wisconsin (Southport, WI, 1849), 526.
57. Sanbourn, John B., “Physician’s Privilege in Wisconsin,” Wisconsin Law Review 1 (1922): 141–46Google Scholar.
58. See, for example, Horatio Wood’s proposal for Pennsylvania statute “Editorial: Professional Secrets and the Law,” Philadelphia Medical Times and Register (26 February 1881), 337.
59. Kellen Funk, “Mere Machinery: The Political Shape of Civil Procedure” (Manuscript, 10 May 2019); Friedman, A History of American Law, 293–98.
60. Friedman, A History of American Law, 293.
61. Ibid., 293–98.
62. In general, Field seemed indifferent to the matter of evidentiary privileges, but unwilling to alter the laws on the books. In Field’s notes to later revisions of the New York code, he wrote: “Whether these four exclusions [marital, attorney, clerical and medical privileges] should all be retained is a question not admitting of an easy solution.” Field noted that neither Bentham nor the codifier Edward Livingston had been in favor of these privileges. Commissioners on Practice and Pleadings, The Code of Civil Procedure of New York: New York Field Codes, 1850–1865, Vol. 1: 1850 (Union, NJ, 1998), 727.
63. Friedman, A History of American Law, 293–98; Coe, Mildred and Morse, Lewis W., “Chronology of the Development of the David Dudley Field Code,” Cornell Law Review 27, no. 2 (February 1942): 238–45Google Scholar. For more on the similarities and differences between various codification movements, see Kellen Funk’s online project, kellenfunk.org, which features the most comprehensive list of these various codification projects as well as the figures responsible for each respective codification movement.
64. Friedman, A History of American Law, 293–98; Stimson, “Privileged Communications to Physicians,” 608.
65. On the treatment of privilege in mid-nineteenth-century legal texts, see Starkie, Thomas, A Practical Treatise on the Law of Evidence, 5th American ed., vol. 2 (Philadelphia, 1834), 228–32Google Scholar. The fourth American edition of Samuel March Phillips’s A Treatise on the Law of Evidence, published in 1839, was the first to offer any mention of the New York statute, but this text did not mention any of the other laws on the books. By then, Missouri, Mississippi, Arkansas, and Wisconsin had also adopted similar legislation. Phillips, Samuel March, A Treatise on the Law of Evidence, 4th American ed. (New York, 1839), 279–83Google Scholar. In Simon Greenleaf’s A Treatise on the Law of Evidence, the most popular treatise on the law of evidence in the mid-nineteenth century, the subject was covered in one brief sentence: “Neither is this protection [privileged communications] extended to medical persons in regard to information, which they have acquired confidentially by attending in their professional characters.” To this, Greenleaf added a brief note. He cited the Duchess of Kingston’s trial and several other British decisions; the text of the New York statute; Missouri’s 1835 statute; and the recently settled case, Johnson v. Johnson. Greenleaf did not mention the laws on the books in Wisconsin, Mississippi, or Arkansas. Nor did he mention the recent New York case, Hewit v. Prime, which would be frequently cited in late-nineteenth-century cases. Greenleaf, Simon, A Treatise on the Law of Evidence, 1st ed., vol. 1 (Boston, 1842), 283–84Google Scholar. The three cases referenced in some of these legal texts were: Johnson v. Johnson, 14 Wend. 637 (1835); Hewit v. Prime, 21 Wend. 79 (1839); and People v. Stout, 3 Park. Cr. 670 (1858). Johnson v. Johnson and Hewit v. Prime were both frequently cited cases that established important and lasting precedents. People v. Stout, on the other hand, received only a brief reference in Francis Wharton’s Commentary on the Law of Evidence in Civil Issues, vol. 1, 581.
66. The treatment of privilege in the divorce case Johnson v. Johnson, the first privilege case to make its way through the New York courts, is paradigmatic of these early cases: Johnson v. Johnson, 1 Edw.Ch. 439 (1832); Johnson v. Johnson, 4 Paige 460 (1834); and Johnson v. Johnson, 14 Wend. 637 (1835). See also the courts’ frequent reversals on the admissibility of physicians’ testimony in abortion trials: Hewit v. Prime, 21 Wend. 79 (1839); People v. Murphy, 101 N.Y. 126 (1886); and People v. Brower, 53 Hun. 217 (1889). For more on privilege in nineteenth-century abortion cases, see Holger-Maehle, Contesting Medical Confidentiality, 68–74.
67. American Medical Association, Code of Ethics (1847), in The American Medical Ethics Revolution, 324–32.