concurring.
The majority opinion finds statements made by the defendant to the nurse not privileged because she was employed by the hospital and was not acting under the direction of a physician. This position finds support in the authorities. Annot., Evidence — Privilege—Nurse, 47 A.L.R.2d 742 (1956). Also see Ramon v. State, 387 So.2d 745 (Miss.1980); State v. McCoy, 70 Wash.2d 964, 425 P.2d 874 (1967), cert. denied, 389 U.S. 873, 88 S.Ct. 161, 19 L.Ed.2d 155 (1967). The fundamental basis for that position is that the privilege extends to only communications to a nurse who is acting as an agent for a licensed physician. State v. Gibson, 3 Wash.App. 596, 476 P.2d 727 (1970).
I do not subscribe to that limitation. The purpose of the statute was declared at an early date.
Though in derogation of the common law, courts have not applied the rule of strict construction sometimes applied to statutes of that character. To the contrary, the right doctrine seems to be that the policy of the statute is an elevated one. It was intended to invite confidence between patient and physician and to prevent a breach of such confidence, and should be so construed as to further its life and purpose.
Green v. Terminal R. Ass’n., 211 Mo. 18, 109 S.W. 715, 720 (1908). It is established by the record the nurse was obtaining information to be considered by a licensed physician in the treatment of the defendant. It is common knowledge this is standard procedure in many circumstances.
The physician-patient privilege extends to hospital records. State ex rel. Benoit v. Randall, 431 S.W.2d 107 (Mo. banc 1968). The records in such cases obviously include information disclosed to nurses employed by the hospital. Sims v. Charlotte Liberty Mutual Insurance Co., 257 N.C. 32, 125 S.E.2d 326 (1962).
The confidentiality of information supplied by a patient should not depend upon who pays a nurse or whether or not a licensed physician is present. The function of the nurse should control. “But the application of strict agency principles in this context would seem inconsistent with the realities of modern medical practice, and the preferable view is that of the courts which have based their decisions upon whether the communication was functionally related to diagnosis and treatment.” McCormick on Evidence, § 101, p. 250 (3d ed. 1984) (footnotes omitted).
A similar privilege exists pertaining to information imparted by a client to his lawyer. Long ago the scope of that privilege was defined. “The rule of common law confined the privilege to counsel and the media of communication between client and counsel, as clerk, interpreter, etc., and this rule has not been enlarged by the statute.” Tyler v. Hall, 106 Mo. 313, 17 S.W. 319, 321 (1891) (emphasis added). As an example, the privilege has been held to be applicable to a statement by an insured to his insurer to be supplied to a lawyer in contemplation of litigation. State ex rel. Cain v. Barker, 540 S.W.2d 50 (Mo. banc *541976). In my opinion in this case the nurse was the media of communication between the defendant and a licensed physician.
However, the trial court found the defendant had voluntarily waived the privilege in respect to the hospital records which substantially included his statements in question. This determination is supported by the evidence. The admission of the testimony was not prejudicial error. Demonbrun v. McHaffie, 348 Mo. 1120, 156 S.W.2d 923 (1941). I concur in the result.