Opinion of the Court
ROBERT E. Quinn, Chief Judge:
The question in this case is the admissibility of testimony by a Navy psychiatrist. No objection to the testimony was made at the trial, but the accused now contends that it is inadmissible and prejudicial.
After apprehension on suspicion of committing certain offenses on board ship, the accused was sent to a Navy hospital for observation. He remained for about a week. Shortly after his release, charges were filed against him for the theft of four wrist watches from the ship's store, and a pistol from the ship's armory; house breaking; and assault with a dangerous weapon, in violation of the Uniform Code of Military Justice. The charges were referred to trial. In his opening statement, defense counsel told the court that the defense would "endeavor to show . . '. that at the time of the alleged acts and incidents the accused was mentally irresponsible."
The defense's case consisted entirely of testimony about the accused's behavior and appearance before and after the events in issue. The principal evidence was a stipulation of testimony by a civilian psychiatrist who had examined the accused. In part, the doctor testified that the accused told him that "he does not recall anything" that happened to him from the time he opened the door to the ship's bake shop until he awakened in a port crane of the ship approximately four hours later. The accused further informed the doctor that he subsequently "was advised" that he had broken into the ship's armory and ship's store and that he had "challeng[ed]" a member of the ship's company with a gun. Electroencephalographic findings were "suggestive" of certain conditions which "might indicate . a convulsive tendency with localized brain damage." Further study was required to determine the cause of the findings, and to rule out evidence of a lesion in the left anterior cerebrum which "might have precipitated a episode" of the kind related by the accused. The doctor concluded that, although there was no definite evidence that the accused is mentally incompetent, "there is a question whether he knew right from wrong during the period of this so-called assault and felony."
In rebuttal, the prosecution called Lieutenant R. C. Ovington, a Navy neuro-psychiatrist. He testified that he examined the accused while the accused was in the Navy hospital. He knew that the accused was suspected of committing certain offenses aboard ship. He evaluated the accused's mental condition and concluded that there was "no evidence of any psychiatric disability of any illness." He recounted conversations with the accused which took place in the course of his examination in which the accused related many details regarding the alleged offenses. In the opinion of the doctor, disclosures of this nature were not consistent with an amnesic condition.
Throughout the trial, both the Government and the defense stressed the fact that there were only two real issues before the court. One was whether the weapon was loaded when the accused pointed it at Boatswain Mate Wyatt, when the accused was discovered in the port crane; the other was the accused's mental condition.
Appellate defense counsel attacks the admissibility of Lieutenant Ovington's testimony on two grounds. First, he contends that the relationship between the lieutenant and the accused was that of psychiatrist-patient, and, consequently, communications between them were privileged. The contention is contrary to the Manual provision that "no privilege attaches" to communications between military personnel and military doctors (paragraph 151c (2)) and the rule that the privilege does not exist in the absence of a statute. People v Lane, 101 Cal 513, 36 Pac 16; Banigan v Banigan, 26 RI 454, 59 Atl 313. Counsel urges us to disregard the Manual provision and the common-law rule as inconsistent with the requirements of justice and the provisions of 18 USC § 4245. But see United States v Smith, 5 USCMA 314, 321, 17 CMR 314; cf. United States v Jacks, 8 USCMA 574, 25 CMR 78. The view we take of the question makes it unnecessary to reach the substance of the argument. Not only was there no objection to Dr. Ovington's testimony, but the defense first presented medical evidence regarding the accused's mental condition. Appel late courts are divided on whether such action constitutes a waiver of the physician-patient privilege. In our opinion it does. The purpose of the privilege is to protect the patient from unnecessary disclosure of an ailment for which he has obtained treatment from a doctor. The reason for the privilege disappears when the patient himself reveals the existence of his ailment. In applying waiver in a like situation, the New York Court of Appeals said:
"When the respondent called a physician as a witness who testified that for at least seven months the respondent had been suffering from 'active pulmonary tuberculosis,' he exposed his condition to the public and disclosed the secret which the statute was enacted to protect and keep secret. By his own act he removed the prohibition of the statute and waived upon the trial the protection which it afforded him.
"The contention that a patient may waive the privilege afforded by the statute himself by calling a physician and disclosing his physical condition and at the same time insist that the statute bars the defendant from calling a physician to describe his physical condition, if sustained, would in many cases result in injustice and fraud. It would be making a use of the statute never intended by the Legislature and not now approved by this Court." [Steinberg v New York Life Ins. Co., 263 NY 45, 188 NE 152, 154.]
The second basis of the accused's attack on the admissibility of- Dr. Ovington's testimony is that it violates the provisions of Article 31 of the Uniform Code in that the doctor did not inform the accused of his rights under the Article. We need not consider whether such advice must be given as a preliminary to an examination of the kind in question. See United States v Bunting, 6 USCMA 170, 19 CMR 296. The accused did not object to the testimony. On the contrary, defense counsel questioned the doctor at length on several aspects of his examination which could have benefited the accused. For example, he inquired into the "pressures" that the accused had indicated were upsetting him and about the possibility that the accused's account of the events was predicated upon information he obtained from other persons. The doctor's testimony does not indicate that the accused was not advised of his rights under Article 31. Had there been an objection to his testimony on that ground, the prosecution might well have been able to show that the advice was in fact given. Under the circumstances, the accused's failure to object constitutes a waiver. United States v Fisher, 4 USCMA 152, 15 CMR 152.
The decision of the board of review is affirmed.
Judge LatimeR concurs.
We are not to be understood as holding that the relationship between Dr. Ovington and the accused was that of physician-patient. Dr. Ovington testified that he was the accused's "physician" but he also said that he evalu ated the accused's mental condition "to determine whether or not there was anything — any mental derangement, disease, or disability and to evaluate whether he needed any treatment or help and as to the disposition of the case." Under these circumstances the ordinary relationship protected by the privilege may not be present. Simecek v State, 243 Wis 439, 10 NW 2d 161. Catoe v United States, 131 F 2d 16 (CA DC Cir) (1942). Apparently contra, Edmonds v United States, — F 2d — (CA DC Cir) (February 7, 1958). For the purposes of this case, we are assuming the existence of the physcian-patient relationship.
See Mays v New Amsterdam Casualty Co., 40 App DC 249, cert denied, 238 US 624, 35 S Ct 662, 59 L ed 1494 (no waiver); State v Sapp, 356 Mo 705, 203 SW 2d 425; Steinberg v New York Life Ins. Co., 263 NY 45, 188 NE 152 (waiver).