70 Wn.2d 964, THE STATE OF WASHINGTON, Respondent, v. SYLVESTER E. McCOY, Appellant
[No. 38851. Department Two. Supreme Court March 31, 1967.]
THE STATE OF WASHINGTON, Respondent, v. SYLVESTER E.
McCOY, Appellant.«*»

[1] Criminal Law - Witnesses - Physician-patient Privilege - Criminal Cases. The physician-patient privilege can be invoked in criminal cases.

[2] Same - Witnesses - Physician-patient Privilege - Purpose. The physician-patient privilege (RCW 5.60.060(4)) is for the benefit of the patient to the end that he will be encouraged to disclose his ailments to a physician so that they may be properly treated.

[3] Same - Witnesses - Physician-patient Privilege - Applicability. The testimony of two nurses relating to a package of marijuana found when one of the accused's socks was removed in a hospital emergency room preparatory to a physician's examination for injuries suffered by the accused in an automobile accident, was admissible in a prosecution for unlawful possession of narcotics, since the physician-patient relationship had not yet been effected so as to make applicable the privilege provided by RCW 5.60.060(4).

Appeal from a judgment of the Superior Court for Pierce County, No. 35873, Bartlett Rummel, J., entered March 7, 1966. Affirmed.

«*» Reported in 425 P.2d 874.

[2] See Am. Jur., Witnesses (1st ed. § 402).

Mar. 1967] STATE v. McCOY 965

Prosecution for unlawful possession of narcotics. Defendant appeals from a conviction and sentence.

McGavick, Betzendorfer, Hemmen & Bottiger, by M. H. Hemmen (Appointed counsel for appeal.), for appellant.

John G. McCutcheon and Gary Cronk, for respondent.

OTT, J. -

October 2, 1965, Sylvester E. McCoy was injured in an automobile accident. He was taken in an unconscious condition to the Lakewood General Hospital by ambulance. At the hospital, while still in a state of unconsciousness, he was undressed by two nurses preparatory to his being examined. When one of his socks was removed, a package, which was later found to contain marijuana, fell to the floor. At the time of this incident, no physician or surgeon was present. The package was given to a state trooper who was investigating the accident. The prosecuting attorney for Pierce County charged Sylvester E. McCoy with the crime of unlawful possession of narcotics. The jury returned a verdict of guilty as charged. From the judgment and sentence entered upon the jury's verdict, the defendant has appealed.

Appellant's first assignment of error is that the court erred in permitting the nurses to testify relative to marijuana, contending that testimony of nurses, as well as physicians and surgeons, comes within the ban of the statute.

RCW 5.60.060 provides in part:

(4) A regular physician or surgeon shall not, without the consent of his patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him to prescribe or act for the patient . . . .

[1] RCW 10.58.010 provides: "The rules of evidence in civil actions, so far as practicable shall be applied to criminal prosecutions." In State v. Miller, 105 Wash. 475, 178 Pac. 459 (1919), this court held that the privilege can be invoked in criminal cases.

[2] In State v. Fackrell, 44 Wn.2d 874, 877, 271 P.2d 679 (1954), we said: "The privilege is for the benefit of the

966 STATE v. McCOY [70 Wn.2d 964

patient to the end that he will be encouraged to disclose his ailments to a physician so that they may be properly treated."

[3] The nurses were not acting under the direction of any physician or surgeon. The patient had been brought by ambulance to the hospital emergency room. The nurses in the emergency room performed those services which were necessary to be performed on behalf of a person admitted through the emergency room of the hospital. In this regard, the nurse in charge testified that she checked Mr. McCoy's blood pressure, pulse and respiration and that she removed his clothes in order that the physician could examine him. As of the moment when the package was discovered, no physician or surgeon had yet been in attendance or had seen the patient. Therefore, the relationship of physicianpatient had not yet been effected. Since the physician-patient relationship had not been accomplished, the ban of the statute does not here apply.

Appellant's final assignment of error is, "the court erred in allowing admission of appellant's confession or admission by reason of its having been gained in violation of his constitutional rights under the state and federal constitutions."

Pursuant to Rule of Pleading, Practice and Procedure 101.20W, RCW vol. 0, the trial court conducted a hearing in the absence of the jury to determine the voluntariness of the appellant's alleged confession. Officer Ward Archer testified on behalf of the state at this hearing as follows:

Q. Did you talk to Mr. McCoy at the time you made the arrest?

A. Yes, I did.

Q. What did you tell him?

A. I advised him of the warrant, I read the warrant to him, advised him of his civil rights, right to remain silent, right to a trial by jury, right to an attorney, a courtappointed attorney if he didn't have sufficient funds.

Q. Did he say anything to you at this time?

A. No, he did not.

Q. And - THE COURT: Just a minute, now. You advised him what the charges were, is that right?

A. Yes.

THE COURT: And the right to remain silent?

A. Yes. THE

COURT: The right to have counsel?

A. Yes.

THE COURT: What else was it?

A. Right to a trial by jury, that

Mar. 1967] STATE v. McCOY 967

anything he might say might be used against him in a court of law, he was advised of this.