# State v. Comeaux

> Court of Criminal Appeals of Texas · July 3, 1991 · 818 S.W.2d 46

URL: https://www.frixlaw.com/law-library/cases/9774119

## Case

- **Full name:** The STATE of Texas, Appellant, v. Pervis Joseph COMEAUX, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** July 3, 1991
- **Citations:** 818 S.W.2d 46; 1991 Tex. Crim. App. LEXIS 167; 1991 WL 117450
- **Precedential status:** Published
- **Opinion:** Concurrence by Campbell
- **Judges:** Maloney, McCormick, Miller, White, Benavides
- **Cited by:** 81 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9774119

## How later opinions describe it (automated extraction)

- finding the Texas Medical Practice Act as evidence of society's regard for an expectation of privacy in the blood sample at issue in that case

## Opinion text

*54 CAMPBELL, Judge,
concurring.
I write in concurrence because I believe that the plurality’s application of the Fourth Amendment to resolve the search and seizure issues raised in the instant case is entirely unnecessary and likely incorrect. See U.S. v. Attson, 900 F.2d 1427, 1438 (9th Cir.1990) (Holding that no search or seizure occurred, under the Fourth Amendment, where a government doctor drew and analyzed Attson’s blood for “purely medical reasons,” and the doctor “did not intend to elicit a benefit for the government in its investigative or administrative capacity”). Rather I believe that the issues presented in this case can be adequately resolved under Texas statutory law.
At the time of the instant offense, under the Texas Medical Practice Act, communications between a physician and a patient in connection with any professional services, were privileged and could not be disclosed, subject to certain exceptions. Tex. Rev.Civ.Stat. art. 4495b § 5.08(a). 1
In my view, the dispositive issue to be resolved is whether the term “communications,” as used in art. 4495b § 5.08(a), can be broadly construed to include the transfer of a blood sample from a patient to a physician for purposes of analysis to be used in treating the patient. The meaning of “communications” as used in art. 4495b § 5.08(a) has never been clarified by this or any other court in Texas. An analysis of the legislative intent underlying the Medical Practice Act provides no guidance. Therefore, I would look to other jurisdictions that have previously construed similar statutes providing a privilege for physician-patient communications.
In Metropolitan Life Ins. Co. v. McKim, 54 Ohio App. 66 , 6 N.E.2d 9 (1935), an Ohio Court of Appeals defined “communication” in the context of the Ohio code providing for a physician-patient privilege. § 11494, Gen.Code. A communication “may be not only by word of mouth, but also by exhibiting the body or any part thereof to the physician for his opinion, examination, or diagnosis, and that sort of communication is quite clearly within the statutes as is a communication by word of mouth.” McKim, 6 N.E.2d at 12 . In McKim , the patient was found to have communicated certain information to his physician when he exhibited his eyes to his physician for observation. See also, In re Roberto, 106 Ohio App. 303 , 151 N.E.2d 37 (1958) (“Privileged communication between patient and physician may be by exhibition of the body to the physician for examination and treatment as well as by oral or written communication ... and a physician may not testify in respect to either unless there is a waiver”); Baker v. Industrial Comm., 135 Ohio St. 491 , 21 N.E.2d 593 (1939); Moore v. Grandview Hospital, 25 Ohio St.3d 194 , 495 N.E.2d 934 (1986).
In Williams v. City of Gallup, 77 N.M. 286 , 421 P.2d 804 (1966), the Supreme Court of New Mexico rejected a narrow view of the meaning of communication in connection with the physician-patient privilege.
“While communication includes the verbal communication of the patient to the physician, it also includes the information *55 or knowledge gained by observation and personal examination of the patient.” Id. 421 P.2d at 806 (citing Howard v. Porter, 240 Iowa 153 , 35 N.W.2d 837 (1949)). See also, Matter of Doe, 98 N.M. 442 , 649 P.2d 510, 515 (App.1982).
In Capps v. Lynch, 253 N.C. 18 , 116 S.E.2d 137 (1960), the Supreme Court of North Carolina found that the statute making “information” disclosed by a patient to a physician privileged, extended “not only to information orally communicated by the patient, but to knowledge obtained by the physician through his own observation or examination while attending the patient in a professional capacity, and which was necessary to enable him to prescribe.” Id. 116 S.E.2d at 140 (citing Smith v. John L. Roper Lumber Co., 147 N.C. 62 , 60 S.E. 717, 718 (1908)).
The meaning of “communications” within the Iowa statute concerning privileged physician-patient communications was addressed in Howard v. Porter, 240 Iowa 153 , 35 N.W.2d 837, 838 (1949).
Although the prohibition of the statute is as to “communication,” we early held it means the same as “information” and included not only the verbal communications of the patient to the physician but also the knowledge and information the physician gained by observation and personal examination of the patient in the discharge of his duties. Prader v. National Masonic Accident Assn., 95 Iowa 149 , 63 N.W. 601 (1895).
In State v. Raymond, 139 Vt. 464 , 431 A.2d 453 (1981), the Supreme Court of Vermont interpreted the Vermont statute making privileged any information acquired in attending a patient in a professional capacity by a doctor, dentist or nurse. 12 V.S.A. § 1612(a). In Raymond , the court found that it was error to admit a nurse’s statement that she smelled alcohol on the breath of a defendant charged with driving while intoxicated, as that information was privileged within the statute. The court concluded that “observations of a patient’s medical or physical condition is [sic] just as much ‘information acquired while attending [her] patient’ as statements, admissions or other utterances made by the patient to his nurse.” Id. 431 A.2d at 455 .
Under the New Jersey physician-patient privilege statute a “blood test is a confidential ‘communication’ ... since that term is defined as including information obtained by examination of the patient.” State, In the Interest of M.P.C., 165 N.J.Super. 131 , 397 A.2d 1092 , 1095 (1979) (construing NJSA 2A:84A-22.1(d)). The Supreme Court of New Jersey, Appellate Division concluded, however, that the privilege did not apply because the police had arrested the defendant and taken him to the hospital for a blood test.
Finally, the United States Court of Appeals for the District of Columbia Circuit interpreted § 14-308, D.C.Code 1940, to provide a broad physician-patient privilege in Sher v. DeHaven, 199 F.2d 777, 780 (D.C.Cir.1952).
The statutory privilege extends not only to information orally given by the patient to the physician, but also to any information obtained by him in his professional capacity, which of course includes information obtained through his observation or examination of the patient as well as all inferences and conclusions drawn therefrom.
Although some of these statutes refer to “information” rather than “communications,” I find this distinction is of marginal value given the tendency of various courts to broadly construe the extent of a general physician-patient privilege.
In the instant case, I would find that the extraction and transfer of blood by a physician from a patient (appellant) for the purposes of treatment, examination, or diagnosis fell within the meaning of “communications” as used in art. 4495b § 5.08(a). A patient’s blood is certainly a part of his body and can only be examined after it is removed from the body. Thus, the transfer of blood to the physician for analysis or other medical procedure should be viewed as a communication. See generally, 8 Wig-more on Evidence § 2384 (“It is ... well settled that the data furnished passively, through submission to inspection, are equally within the [physician-patient] privi *56 lege, whether the patient was himself aware or not of the existence of the specific data discovered”) (emphasis original).
Furthermore, the exception to privilege contained within art. 4495b § 508(g)(8) is inapplicable in the instant case. See note 1 supra. At the time appellant’s blood was transferred to his physician for analysis there was no criminal prosecution in which appellant was then a victim, witness, or defendant. Appellant was not charged with an offense until nearly two weeks after the police obtained a sample of his blood.
For the reasons stated above, I would affirm the judgment of the Court of Appeals. Accordingly, I concur only in the result reached in the plurality opinion.
BENAVIDES, J., joins.
. Article 4495b § 5.08 provides in pertinent part:
(a) Communications between one licensed to practice medicine, relative to and in connection with any professional services as a physician to a patient, is [sic] confidential and privileged and may not be disclosed except as provided in this section.
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(g) Exceptions to confidentiality or privilege in court or administrative proceedings exist:
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(8) in any criminal prosecution where the patient is a victim, witness, or defendant. Records are not discoverable until the court in which the prosecution is pending makes an in camera determination as to the relevancy of the records or communications or any portion thereof. Such determination shall not constitute a determination as to admissibility of such records or communications or any portion thereof.
Art. 4495 § 5.08 was deemed repealed as it related to criminal cases and criminal law matters by order of this Court effective September 1, 1986. See now Tex.R.Crim.Evid. 509.
The events that resulted in appellant’s conviction for Driving While Intoxicated occurred on July 20, 1986. Thus, art. 4495b § 5.08 was still applicable to any "communications” made by appellant to his physician on that date.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9774119. Public record. Not legal advice.