University of the Philippines College of Law

D2021

Topic Testimonial Evidence; Privileged Communication; Physician-Patient Privilege

Case No. G.R. No. 91114. September 25, 1992.
Case Name NELLY LIM, Petitioner, v. THE COURT OF APPEALS, HON. MANUEL D.
VICTORIO, as Presiding Judge of RTC-Rosales, Pangasinan, Branch 53, and
JUAN SIM, Respondents.
Ponente Justice Davide

Quick Facts
Case Petition for annulment of marriage
Evidence in Question Testimony of Psychiatrist as Expert Witness
Trial Court Decision The Trial Court allowed the Psychiatrist to testify
on the mental state of the wife (herein petitioner,
Nelly Lim)
Supreme Court Decision The testimony of Dr. Acampado is admissible,
because it isn’t covered by patient-physician
privilege.

RELEVANT FACTS
- The husband (private respondent) filed a petition for annulment of marriage with his wife
(herein petitioner) on the ground that petitioner was suffering from “a mental illness called
schizophrenia "before, during and after the marriage and until the present.”.
- One of the Chief Witnesses he sought to present was Dr. Lydia Acampado, Chief of the
Female Services of the National Mental Hospital, A doctor who specializes in psychiatry. So
his counsel filed for a subpoena ad testificandum to be issued to compel Dr. Acampado to
testify.
o The counsel of the wife opposed the issuance of the subpoena and applied for its
quashal on the ground that the “testimony sought to be elicited from the witness is
privileged since the latter had examined the petitioner in a professional capacity
and had diagnosed her to be suffering from schizophrenia.”
- The RTC judge denied the motion to quash the subpoena and allowed Dr. Acampado to take
the stand and testify. Her testimony was subject to qualification and she didn’t directly
testify as to her sessions with Nelly Lim.
o “was qualified by counsel for private respondent as an expert witness and was asked
hypothetical questions related to her field of expertise. She neither revealed the
illness she examined and treated the petitioner for nor disclosed the results of her
examination and the medicines she had prescribed.”
- The ruling of RTC judge as to why he allowed Dr. Acampado to testify is as follows:
o On the witness box, Dr. Acampado answered routinary questions to qualify her as
an expert in psychiatry; she was asked to render an opinion as to what kind of illness
are stelazine tablets applied to; she was asked to render an opinion on a
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hypothetical facts respecting certain behaviours of a person; and finally she

admitted she saw and treated Nelly Lim but she never revealed what illness she
examined and treated her; nor the result of her examination of Nelly Lim, nor the
medicines she prescribed.
- The Court of Appeals affirmed the ruling of the RTC admitting the testimony of Dr.
Acampado on the ground that “the petitioner failed in establishing the confidential nature
of the testimony given by or obtained from Dr. Acampado when she testified on January 25,
1989.” Please See notes for the text of the CA DECISION. The decision said in summary that
(1) the information testified on was not by reason of Dr. Acampado treating Nelly Lim. (2)
And that she only testified on hypothetical questions that did not blacken the reputation of
Nelly Lim.
ISSUE
● Whether or not the testimony of Dr. Acampado should’ve been disallowed due to patient-
physician privilege? NO. The requisites to claim patient-physician privilege are not present.

RATIO DECIDENDI

Issue Ratio

Whether or not the NO. First, The testimony was not concerning information acquired
testimony of Dr. during Dr. Acampado acting in her professional capacity. Second, the
Acampado should’ve interviews by Dr. Acampado of Nelly Lim were done in the presence
been disallowed due to of a 3rd person, so this takes it out of the coverage of the patient-
patient-physician physician privilege. Third, no substantiation of the claim that the
privilege? [RELEVANT] reputation of Nelly Lim was blackened. Fourth, there was failure to
object during the testimony, so it must be deemed that there was
waiver.

The court on when a physician is acting in his professional capacity

and what he may validly disclose:

The physician may be considered to be acting in his professional

capacity when he attends to the patient for curative, preventive, or
palliative treatment. Thus, only disclosures which would have been
made to the physician to enable him "safely and efficaciously to
treat his patient" are covered by the privilege.6 It is to be
emphasized that "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."
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The Court explains why the subject of the testimony of Dr.

Acampado is not considered as being from “acting in her
professional capacity:

“Our careful evaluation of the submitted pleadings leads Us to no

other course of action but to agree with the respondent Court’s
observation that the petitioner failed to discharge that burden. In
the first place, Dr. Acampado was presented and qualified as an
expert witness. As correctly held by the Court of Appeals, she did
not disclose anything obtained in the course of her examination,
interview and treatment of the petitioner; moreover, the facts and
conditions alleged in the hypothetical problem did not refer to and
had no bearing on whatever information or findings the doctor
obtained while attending to the patient. There is, as well, no
showing that Dr. Acampado’s answers to the questions propounded
to her relating to the hypothetical problem were influenced by the
information obtained from the petitioner. Otherwise stated, her
expert opinion excluded whatever information or knowledge she
had about the petitioner which was acquired by reason of the
physician-patient relationship existing between them. As an expert
witness, her testimony before the trial court cannot then be
excluded. The rule on this point is summarized as follows:

"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. But in order to avoid the bar of the physician-patient
privilege where it is asserted in such a case, the physician must base
his opinion solely upon the facts hypothesized in the question,
excluding from consideration his personal knowledge of the patient
acquired through the physician and patient relationship. If he cannot
or does not exclude from consideration his personal professional
knowledge of the patient’s condition he should not be permitted to
testify as to his expert opinion."
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The court explained that the presence of a third person in the

interviews takes it out of patient-physician coverage:

“Secondly, it is quite clear from Dr. Acampado’s testimony that the

petitioner was never interviewed alone. Said interviews were always
conducted in the presence of a third party. […]There is authority to
the effect that information elicited during consultation with a
physician in the presence of third parties removes such information
from the mantle of the privilege:

"Some courts have held that the casual presence of a third

person destroys the confidential nature of the communication
between doctor and patient and thus destroys the privilege,
and that under such circumstances the doctor may testify.
Other courts have reached a contrary result."

The court said there was no blackening of reputation:

“[…] nothing specific or concrete was offered to show that indeed,

the information obtained from Dr. Acampado would blacken the
former’s "character" (or "reputation"). Dr. Acampado never
disclosed any information obtained from the petitioner regarding
the latter’s ailment and the treatment recommended therefor.”

The court says that the counsel for petitioner never raised an
objection during the actual testimony anyway:

“[…] petitioner makes no claim in any of her pleadings that her

counsel had objected to any question asked of the witness on the
ground that it elicited an answer that would violate the privilege,
despite the trial court’s advise that said counsel may interpose his
objection to the testimony "once it becomes apparent that the
testimony, sought to be elicited is covered by the privileged
communication rule." The particular portions of the stenographic
notes of the testimony of Dr. Acampado quoted in the petitioner’s
Petition and Memorandum, and in the private respondent’s
Memorandum, do not at all show that any objections were
interposed. Even granting ex gratia that the testimony of Dr.
Acampado could be covered by the privilege, the failure to
seasonably object thereto amounted to a waiver thereof.”
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Requisites for the

Patient-Physician 5 Requisites for Patient-Physician Privilege
Privilege to be claimed 1. the privilege is claimed in a civil case;
and Requisites in General
for Privileged 2. the person against whom the privilege is claimed is one duly
Communications authorized to practice medicine, surgery or obstetrics;
[relevant]
3. such person acquired the information while he was
attending to the patient in his professional capacity;

4. the information was necessary to enable him to act in that

capacity; and

5. the information was confidential, and, if disclosed, would

blacken the reputation (formerly character) of the patient.

4 Fundamental Conditions in General for Privileged Communications:

1. The communications must originate in a confidence that

they will not be disclosed.

2. This element of confidentiality must be essential to the full

and satisfactory maintenance of the relation between the
parties.

3. The relation must be one which in the opinion of the

community ought to be sedulously fostered

4. The injury that would inure to the relation by the disclosure

of the communications must be greater than the benefit
thereby gained for the correct disposal of litigation

The court explaining the This (quoting the provision in the rules) is a reproduction of
history and development paragraph (c), Section 21, Rule 130 of the 1964 Revised Rules of
of the patient-physician Court with two (2) modifications, namely: (a) the inclusion of the
privilege and the phrase "advice or treatment given by him," and (b) substitution of
rationale behind it. the word reputation for the word character. Said Section 21 in turn
is a reproduction of paragraph (f), Section 26, Rule 123 of the 1940
Rules of Court with a modification consisting in the change of the
phrase "which would tend to blacken" in the latter to "would
blacken." Verily, these changes affected the meaning of the
provision. Under the 1940 Rules of Court, it was sufficient if the
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information would tend to blacken the character of the patient. In

the 1964 Rules of Court, a stricter requirement was imposed; it was
imperative that the information would blacken such character. With
the advent of the Revised Rules on Evidence on 1 July 1989, the rule
was relaxed once more by the substitution of the word character
with the word reputation. There is a distinction between these two
concepts." ‘Character’ is what a man is, and ‘reputation’ is what he
is supposed to be in what people say he is.’Character’ depends on
attributes possessed, and ‘reputation’ on attributes which others
believe one to possess. The former signifies reality and the latter
merely what is accepted to be reality at present."

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. It rests in public policy and is for the general
interest of the community.

Since the object of the privilege is to protect the patient, it may be

waived if no timely objection is made to the physician’s testimony.

DISPOSITIVE: WHEREFORE, the instant petition is DENIED for lack of merit. Costs against petitioner.
SO ORDERED.

Notes:

We are of the opinion that they do not fall within the realm of a privileged communication because the
information were (sic) not obtained from the patient while attending her in her professional capacity
and neither were (sic) the information necessary to enable the physician to prescribe or give treatment
to the patient Nelly Lim. And neither does the information obtained from the physician tend to blacken
the character of the patient or bring disgrace to her or invite reproach. Dr. Acampado is a Medical
Specialist II and in-charge (sic) of the Female Service of the National Center for Mental Health a fellow
of the Philippine Psychiatrist Association and a Diplomate of the Philippine Board of Psychiatrists. She
was summoned to testify as an expert witness and not as an attending physician of petitioner.

After a careful scrutiny of the transcript of Dr. Acampado’s testimony, We find no declaration that
touched (sic) or disclosed any information which she has acquired from her patient, Nelly Lim, during
the period she attended her patient in a professional capacity. Although she testified that she
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examined and interviewed the patient, she did not disclose anything she obtained in the course of her
examination, interview and treatment of her patient. Given a set of facts and asked a hypothetical
question, Dr. Acampado rendered an opinion regarding the history and behaviour of the fictitious
character in the hypothetical problem. The facts and conditions alleged in the hypothetical problem
did not refer and (sic) had no bearing to (sic) whatever information or findings the doctor obtained
from attending the (sic) patient. A physician is not disqualified to testify as an expert concerning a
patient’s ailment, when he can disregard knowledge acquired in attending such patient and make
answer solely on facts related in (sic) the hypothetical question. (Butler v. Role, 242 Pac. 436; Supreme
Court of Arizona Jan. 7, 1926). Expert testimony of a physician based on hypothetical question (sic) as
to cause of illness of a person whom he has attended is not privileged, provided the physician does not
give testimony tending to disclose confidential information related to him in his professional capacity
while attending to the patient. (Crago v. City of Cedar Rapids, 98 NW 354, see Jones on Evidence, Vol.
3, p. 843, 3rd Ed.).