NELLY LIM, PETITIONER, VS. THE COURT OF APPEALS, HON. MANUEL D. VICTORIO, AS PRESIDING JUDGE OF RTC-ROSALES, PANGASINAN, BRANCH 53, AND JUAN SIM, RESPONDENTS.

This petition brings into focus the rule on the confidentiality
of the physician-patient relationship. Petitioner
urges this Court to strike down as being violative thereof the resolution of
public respondent Court of Appeals in C.A.-G.R. SP No. 16991 denying due course
to a petition to annul the order of the trial court allowing a Psychiatrist of
the National Mental Hospital to testify as an expert witness and not as an
attending physician of petitioner.

The parties are in agreement as to the following facts:

Petitioner and private respondent are lawfully married to each
other.

On 25 November 1987, private respondent filed with Branch 53 of
the Regional Trial Court (RTC) of Pangasinan a petition for annulment of such
marriage on the ground that petitioner has been allegedly suffering from a
mental illness called schizophrenia “before, during and after the marriage
and until the present.” After the issues were joined and the pre-trial was
terminated, trial on the merits ensued. Private respondent presented three (3) witnesses before taking the
witness stand himself to testify on his own behalf. On 11 January 1989, private respondent’s counsel announced that
he would present as his next witness the Chief of the Female Services of the
National Mental Hospital, Dr. Lydia Acampado, a Doctor of Medicine who
specializes in Psychiatry. Said counsel
forthwith orally applied for the issuance of a subpoena ad testificandum
requiring Dr. Acampado to testify on 25 January 1989. Petitioner’s counsel opposed the motion 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. Over
such opposition, the subpoena was issued on 12 January 1989.

On 24 January 1989, petitioner’s counsel filed an urgent omnibus
motion to quash the subpoena and suspend the proceedings pending
resolution of the motion.

Before Dr. Acampado took the witness stand on 25 January 1989,
the court heard this urgent motion. Movant argued that having seen and examined the petitioner in a
professional capacity, Dr. Acampado is barred from testifying under the rule on
the confidentiality of a physician-patient relationship. Counsel for private respondent contended,
however, that Dr. Acampado would be presented as an expert witness and would
not testify on any information acquired while attending to the petitioner in a
professional capacity. The trial court,
per respondent Judge, denied the motion and allowed the witness to testify. Dr. Acampado thus took the witness stand,
was qualified by counsel for private respondent as an expert witness and was
asked by 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.

Since petitioner’s counsel insisted that the ruling of the court
on the motion be reduced to writing, respondent Judge issued the following
Order on the same date:

“In his omnibus motion filed with the Court only yesterday,
January 24, 1989, petitioner seeks to prevent Dr. Lydia Acampado from
testifying because she saw and examined respondent Nelly Lim in her
professional capacity perforce her testimony is covered by the privileged (sic)
communication rule.

Petitioner contends that Dr. Acampado is being presented as an
expert witness and that she will not testify on any information she acquired in
(sic) attending to Nelly Lim in her professional capacity.

Based on the foregoing manifestation of counsel for petitioner, the
Court denied the respondent’s motion and forthwith allowed Dr. Acampado to
testify. However, the Court advised
counsel for respondent to interpose his objection once it becomes apparent that
the testimony sought to be elicited is covered by the privileged communication
rule.

On the witness box, Dr. Acampado answered routinary (sic) questions
to qualify her as an in psychiatry; she was asked to render an opinion as to
what kind of illness (sic) are stelazine tablets applied to; she was asked to
render an opinion on a (sic) 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 (sic); nor (sic) the
result of her examination of Nelly Lim; nor (sic) the medicines she prescribed.

WHEREFORE, the omnibus motion dated January 19, 1989 is hereby
DENIED.”^[1]

On 3 March 1989, petitioner filed with the public respondent
Court of Appeals a petition^[2]
for certiorari and prohibition, docketed therein as C.A.-G.R. SP N.
16991, to annul the aforesaid order of respondent Judge on the ground that the
same was issued with grave abuse of discretion amounting to lack of
jurisdiction, and to prohibit him from proceeding with the reception of Dr.
Acampado’s testimony.

On 18 September 1989, the Court of Appeals promulgated a
resolution^[3]
denying due course to the petition 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, 1969.” Hence, the
respondent Judge committed no grave abuse of discretion. In support thereof, the respondent Court
discussed the conditions which would render as inadmissible testimonial
evidence between a physician and his patient under paragraph (c), Section 24,
Rule 130 of the Revised Rules of Court and made the following findings:

“The present suit is a civil case for annulment of marriage,
and the person whose testimony is sought to be stopped as a privileged
communication is a physician, who was summoned by the patient in her
professional capacity for curative remedy or treatment. The divergence in views is whether the
information given by the physician in her testimony in open court on January 25,
1989 was a privileged communication. 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
incharge (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 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 vs. 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 vs. City of Cedar Rapids, 98 NW 354; see Jones on Evidence, Vol.
3, p. 843, 3rd Ed.).

The rule on privilege (sic) communication in the relation of
physician and patient proceeds from the fundamental assumption that the
communication to deserve protection must be confidential in their origin. Confidentiality is not to be blindly implied
from the mere relation of physician and patient. It might be implied according to circumstances of each case,
taking into consideration the nature of the ailment and the occasion of the
consultation. The claimant of the privilege has the burden of establishing in
each instance all the facts necessary to create the privilege, including the
confidential nature of the information given.”^[4]

Her motion to reconsider the resolution having been denied, petitioner
took this recourse under Rule 45 of the Rules of Court. In her view, the respondent Court of Appeals
“seriously erred”:

“I.

x x x in not finding that all the essential elements of the rule on
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 at bar.

II.

x x x  in believing that Dr.
Acampado ‘was summoned as an expert witness and not as an attending physician
of petitioner.’

III.

x x x in concluding that Dr. Acampado made ‘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.’

IV.

x x x in declaring that ‘the petitioner failed in establishing the
confidential nature of the testimony given by or obtained from Dr.
Acampado.'”^[5]

We gave due course to the petition and required the parties to
submit their respective Memoranda^[6]
after the private respondent filed his Comment^[7]
and the petitioner submitted her reply^[8]
thereto. The parties subsequently filed
their separate Memoranda.

The petition is devoid of any merit. Respondent Court of Appeals committed no reversible error in its
challenged resolution.

The law in point is paragraph (c), Section 24 of the Revised Rues
on Evidence which reads:

“SEC. 24. Disqualification by reason of privileged
communication. — The following
persons cannot testify as to matters learned in confidence in the following
cases:

x x x

(c)  A person authorized to practice medicine,
surgery or obstetrics cannot in a civil case, without the consent of the
patient, be examined as to any advice or treatment given by him or any
information which he may have acquired in attending such patient in a
professional capacity, which information was necessary to enable him to act in
that capacity, and which would blacken the reputation of the patient.”

This is a reproduction of paragraph (c),
Section 21, Rule 130 of the 1964 Revised Rules of Court with two (2)
modifications, namely: (a) the
inclusion of the phrase “advice or treatment given by him,” and (b)
substitution of 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.”^[9]
Verily, these changes affected the meaning of the provision. Under the 1940 Rules of Court, it was sufficient
if the 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 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 s accepted to be reality at present.”^[10]

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.^[11]
It rests in public policy and is for the general interest of the community.^[12]

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.^[13]

In order that the privilege may be successfully claimed, the
following requisites must concur:

“1.  the privilege is claimed in a civil case;

2. the person against whom the privilege is claimed is one duly authorized
to practice medicine, surgery or obstetrics;

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.”^[14]

These requisites conform with the four (4) fundamental conditions
necessary for the establishment of a privilege against the disclosure of
certain communications, to wit:

“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.”^[15]

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.^[16]
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.”^[17]

One who claims this privilege must prove the presence of these
aforementioned requisites.^[18]

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.”^[19]

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,
thus:

“Q – I am asking you, doctor, whom did you interview?

A –  I interviewed the husband first,
then the father and after having the history, I interviewed the patient, Nelly.

Q –  How
many times did Juan Sim and Nelly Lim go to your office?

A –   Now,
the two (2) of them came three (3) times. As I have stated before, once in the month of April of 1987 and two (2)
times for the month of June 1987, and after that, since July of 1987, it was
the father of Nelly, Dr. Lim, who was bringing Nelly to me until November of
1987.

Q –  Now,
Dr. Lim is a fellow physician?

A –   Yes,
I understand.

Q –  Was
there anything that he told you when he visited with you in a clinic?

A –   I
would say that there was none. Even if
I asked information about Nelly, I could not get anything from Dr. Lim.

Q –  Now,
when Dr. Lim and his daughter went to your clinic, was there any doctor who was
also present during that interview?

A –   No,
sir, I don’t remember any.”^[20]

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.”^[21]

Thirdly, except for the petitioner’s sweeping claim — that
“(T)he information given by Dr. Acampado brings disgrace and invite (sic)
reproach to petitioner by falsely making it appear in the eyes of the trial
court and the public that the latter was suffering from a mental disturbance
called schizophrenia — which caused, and continues to cause, irreparable
injury to the name and reputation of petitioner and her family,”^[22]
— which is based on a wrong premise, 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.

Finally, while it may be true that counsel for the petitioner
opposed the oral request for the issuance of a subpoena ad testificandum
to Dr. Acampado and filed a formal motion for the quashal of the said subpoena
a day before the witness was to testify, the 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^[23]
and Memorandum,^[24]
and in the private respondent’s Memorandum,^[25]
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.

WHEREFORE, the instant petition is DENIED for lack of
merit. Costs against petitioner.

SO ORDERED.

Gutierrez, Jr., J., (Chairman), on
official leave.

Bidin, (Acting Chairman), Romero, and
Melo, JJ., concur.

^[1]
Rollo, 34.

^[2]
Id., 41-58.

^[3] Id., 33-38; per then Associate  Justice Jose C. Campos, Jr., concurred in by
Associate Justices Emeterio C. Cui and Nicolas P. Lapeña, Jr.

^[4]
Rollo, 36-37.

^[5]
Rollo, 14-15.

^[6]
Id., 99.

^[7]
Id., 84-89.

^[8]
Id., 94-97.

^[9]
FRANCISCO, V.J., The Revised Rules of Court,
Vol. VII, Part I, 1973 ed., 248.

^[10]
Black’s Law Dictionary, Fifth ed., 211.

^[11]
FRANCISCO, op. cit., 267, citing Will of Bruendi, 102 Wis., 47,
78 N.W. 169.

^[12]
61 Am Jur 2d, 263.

^[13]
Wharton’s Criminal Evidence, vol. III, 12th ed., 1955, 175-176.

^[14]
FRANCISCO, op, cit., 268; MORAN, M.V., Comments on the
Rules of Court, vol. 5, Part I, 1980 ed., 199.

^[15]
WIGMORE, Evidence In Trials at Common Law,
vol. VIII, 1961 ed., 527.

^[16]
FRANCISCO, op. cit., 269, citing Smart vs. Kansas City,
208 Mo. 162, 105 S.W., 709; Rule 220, Model Code of Evidence.

^[17]
WIGMORE, op. cit., 846.

^[18]
Id., 833.

^[19]
Am Jur 2d, 277-278; citations omitted.

^[20]
TSN, 25 January 1989, 33-36, quoted in the Memorandum for Private Respondent; Rollo,
108-109.

^[21]
Underhill’s Criminal Evidence, Vol. II, Fifth ed., 1956, 853.

^[22]
Rollo, op. cit., 26.

^[23]
Rollo, 18-25.

^[24]
Id., 121-128.

^[25]
Id., 106-110.