Lim vs. Court of Appeals

A physician who previously attended a patient may testify as an expert on strictly hypothetical questions without violating the physician-patient privilege, provided the opinion is based solely on the facts hypothesized and excludes any confidential information acquired in attending the patient in a professional capacity.

Nelly Lim and Juan Sim are lawfully married to each other. The governing evidentiary framework is paragraph (c), Section 24, Rule 130 of the Revised Rules on Evidence, which disqualifies a person authorized to practice medicine from testifying in a civil case, without the patient's consent, on advice, treatment, or confidential information acquired in attending the patient that would blacken reputation. The provision traces to paragraph (f), Section 26, Rule 123 of the 1940 Rules of Court and paragraph (c), Section 21, Rule 130 of the 1964 Rules of Court.

Petitioner Nelly Lim and private respondent Juan Sim are lawfully married. On 25 November 1987, Sim filed with Branch 53 of the Regional Trial Court of Pangasinan a petition for annulment of the marriage on the ground that Lim had allegedly been suffering from schizophrenia before, during and after the marriage and until the present. After joinder of issues and termination of pre-trial, trial on the merits ensued, during which Sim presented three witnesses before taking the witness stand himself.

On 11 January 1989, Sim's counsel announced that the next witness would be Dr. Lydia Acampado, Chief of the Female Services of the National Mental Hospital, a Doctor of Medicine specializing in Psychiatry, and orally applied for a subpoena ad testificandum requiring her to testify on 25 January 1989. Lim's counsel opposed on the ground that the testimony sought was privileged since Acampado had examined petitioner in a professional capacity and diagnosed schizophrenia. Over the opposition, the subpoena was issued on 12 January 1989. On 24 January 1989, Lim's counsel filed an urgent omnibus motion to quash the subpoena and suspend proceedings.

Before Acampado took the stand on 25 January 1989, the court heard the motion. Movant argued that having seen and examined petitioner professionally, Acampado was barred by physician-patient confidentiality. Sim's counsel contended she would be presented as an expert witness and would not testify on information acquired in attending to petitioner professionally. Respondent Judge denied the motion and allowed the witness to testify. Acampado was qualified as an expert, answered routine qualifying questions, rendered opinions on hypothetical facts respecting behaviors and on what illness stelazine tablets are applied to, and admitted she saw and treated Lim but never revealed the illness examined and treated, the results of examination, or medicines prescribed. At petitioner's counsel's insistence, the ruling was reduced to writing in an Order issued the same date, advising respondent's counsel to object once testimony sought to be elicited appeared covered by privilege.

• Requisites of Privilege: Petitioner argued that all essential elements of physician-patient privileged communication under Section 21, Rule 130 of the Rules of Court (Section 24, Rule 130 of the Revised Rules of Evidence) exist in the case.
• Capacity of Witness: Petitioner maintained that Dr. Acampado was summoned as an attending physician of petitioner, not as an expert witness.
• Disclosure of Confidential Information: Petitioner argued that Dr. Acampado made declarations touching or disclosing information acquired from petitioner during attendance in a professional capacity.
• Confidential Nature and Reputational Harm: Petitioner maintained that she established the confidential nature of the testimony and that the information given brings disgrace and invites reproach by falsely making it appear that she suffered from schizophrenia, causing irreparable injury to her name and reputation and her family's.

• Expert Testimony on Hypothetical Facts: Respondent countered that Dr. Acampado was being presented as an expert witness and would not testify on any information acquired in attending to Nelly Lim in a professional capacity.

• Applicability of Physician-Patient Privilege: Whether the testimony of Dr. Acampado as an expert witness on hypothetical questions violates the physician-patient privileged communication rule.
• Waiver by Failure to Object: Whether failure to object to specific questions eliciting allegedly privileged answers amounts to waiver of the privilege.

• Applicability of Physician-Patient Privilege: No. The privilege was not breached where the physician testified solely as an expert on hypothetical facts, disclosing no confidential diagnosis, examination results, or treatment, with interviews also conducted in presence of third parties.
• Waiver by Failure to Object: Yes. Even assuming coverage, failure to seasonably object to specific questions despite the trial court's advice constituted waiver, the privilege being for the patient's protection and waivable by timely objection.

• Applicability of Physician-Patient Privilege: The five requisites for the privilege were not established: (1) claimed in a civil case, (2) person duly authorized to practice medicine, (3) information acquired while attending patient professionally, (4) information necessary to enable action in that capacity, and (5) confidential information which would blacken reputation. Presented and qualified as an expert, Acampado disclosed nothing obtained in examination, interview, and treatment; the hypothetical facts had no bearing on findings from attending petitioner, with no showing her answers were influenced by personal professional knowledge. Permitting expert opinion on strictly hypothetical questions, excluding personal knowledge acquired through the relationship, does not violate the privilege. Further, petitioner was never interviewed alone — husband, then father, were present, and consultations in presence of third parties remove the mantle of privilege under cited authority. Nothing specific was shown that disclosed information would blacken reputation, as no ailment, examination result, or prescribed medicine was revealed.
• Waiver by Failure to Object: Since the privilege's object is to protect the patient, it may be waived if no timely objection is made. Although petitioner opposed the subpoena and moved to quash, no claim was made that counsel objected to any specific question on privilege grounds despite being advised to interpose objection once testimony appeared covered, and the transcripts quoted show no objections interposed.

• Physician-Patient Privilege; Requisites — In order that the privilege may be successfully claimed, the following must concur: (1) privilege claimed in a civil case; (2) person against whom claimed is duly authorized to practice medicine, surgery or obstetrics; (3) such person acquired the information while attending to the patient in professional capacity; (4) information was necessary to enable him to act in that capacity; and (5) information was confidential and, if disclosed, would blacken the reputation of the patient. Applied here, requisites 3 to 5 were not proven because no confidential information necessary to treatment was disclosed.
• Purpose of Physician-Patient Privilege — The rule is intended to facilitate safe, full and confidential disclosure by the patient of facts, circumstances and symptoms, untrammeled by apprehension of enforced disclosure on the witness stand, so the physician may form a correct opinion and safely and efficaciously treat the patient; it rests in public policy for the general interest of the community. The privilege being for the patient's protection, it may be waived by failure to timely object.
• Expert Testimony on Hypothetical Questions — The predominating view allows a physician to give expert opinion in response to a strictly hypothetical question involving the patient's condition where the opinion is based strictly on hypothesized facts, excluding personal professional knowledge; the physician must base the opinion solely on hypothesized facts, and if personal knowledge cannot be excluded, should not be permitted to testify as expert. Acampado's opinion was held compliant because hypothetical facts excluded her personal knowledge of Lim.
• Tenor Only Privileged; Presence of Third Parties — Only the tenor of the communication is privileged; the mere fact of communication, date and number of consultations are not privileged so long as the subject is not stated. Information elicited during consultation in the casual presence of third persons loses confidential character under cited authority. Here, interviews were always with husband or father present, and mere admission of seeing and treating Lim did not disclose privileged tenor.
• Burden of Proof and Confidential Origin — Confidentiality is not blindly implied from mere physician-patient relation but depends on circumstances, nature of ailment and occasion of consultation; claimant must prove all facts creating privilege including confidential nature. Petitioner failed to discharge that burden, offering only a sweeping claim of disgrace without specific showing.
• Character vs. Reputation — Character is what a man is, depending on attributes possessed, while reputation is what he is supposed to be in what people say he is, depending on attributes others believe possessed. The shift from "would tend to blacken character" under the 1940 Rules, to "would blacken character" under the 1964 Rules, to "would blacken reputation" under the Revised Rules on Evidence relaxed the requirement anew.

• "This rule on the physician-patient privilege is intended to facilitate and make safe full and confidential disclosure by the patient to the physician of all facts, circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient." — States the policy rationale for the privilege and why strict requisites and waiver apply.
• "it is the tenor only of the communication that is privileged. The mere fact of making a communication, as well as the date of a consultation and the number of consultations, are therefore not privileged from disclosure, so long as the subject communicated is not stated." — Defines the limited scope of privilege, supporting admission of mere fact of examination and treatment without disclosure of findings.
• "The predominating view, with some scant authority otherwise, is that the statutory physician-patient privilege, though duly claimed, is not violated by permitting a physician to give expert opinion testimony in response to a strictly hypothetical question in a lawsuit involving the physical mental condition of a patient whom he has attended professionally, where his opinion is based strictly upon the hypothetical facts stated, excluding and disregarding any personal professional knowledge he may have concerning such patient." — Articulates the controlling hypothetical-question doctrine applied to sustain Acampado's expert testimony.

• Butler vs. Role, 242 Pac. 436 — Cited via the Court of Appeals for the proposition that a physician is not disqualified to testify as an expert concerning a patient's ailment when answer is made solely on facts related in the hypothetical question, disregarding knowledge acquired in attending the patient.
• Crago vs. City of Cedar Rapids, 98 NW 354 — Cited via the Court of Appeals for the proposition that expert testimony based on hypothetical questions as to cause of illness of a person attended is not privileged, provided no confidential information related in professional capacity is disclosed.

• Paragraph (c), Section 24, Rule 130, Revised Rules on Evidence — Disqualifies a person authorized to practice medicine, surgery or obstetrics from testifying in a civil case without patient consent on advice or treatment given or information acquired in attending patient professionally which was necessary to enable action and would blacken reputation; applied as the controlling rule, with requisites unmet and no confidential disclosure shown.
• Paragraph (c), Section 21, Rule 130, 1964 Revised Rules of Court; Paragraph (f), Section 26, Rule 123, 1940 Rules of Court — Prior formulations requiring that information "would blacken character" (1964) and "would tend to blacken" character (1940); discussed to trace evolution to current "would blacken reputation" standard and distinction between character and reputation.

Bidin, J. (Acting Chairman), Romero, J., and Melo, J., concur. Gutierrez, Jr., J. (Chairman), on official leave.