¶1(concurring specially).
¶2I concur in all aspects of the majority opinion and agree that it provides a proper basis for deciding this appeal. I believe, however, that the issue of privilege, which was argued in both the district court and this court, should also be addressed.
¶3The district court concluded that the medical records which the prosecutor sought to subpoena under the authority of Iowa Rule of Criminal Procedure 5(6) were not privileged. It based this conclusion on our decision in Chidester v. Needles, 353 N.W.2d 849 (Iowa 1984). Although Chi-dester appears to support the district court’s conclusion, I believe that case was wrongfully decided. It should be overturned before other district courts rely upon it to permit the acquisition of privileged documents or information.
¶4The opinion in Chidesterrelies in part on the following dictum from Noble v. United Benefit Life Ins. Co., 230 Iowa 471, 297 N.W. 881 (1941):
An analysis of the statute and the cases thereon ... clearly indicates that the purpose of this statute is to prohibit the giving of testimony in a court or some proceeding where the witness is under oath. In other words, there is a distinction between the disclosure of a fact and to testify to a fact.
¶5Noble, 230 Iowa at 475, 297 N.W. at 884. The discussion in the Nobleopinion draws a distinction between disclosure to private parties outside of a judicial proceeding and disclosure made as a witness in a proceeding in which the witness is under oath.
¶6Our opinion in Chidestermistakenly applied the Nobledictum to a situation in which the issue was whether a county attorney’s subpoena issued pursuant to rule 5(6) may be used to obtain medical records of a patient’s condition to which the doctor who made those records would be prohibited from testifying by Iowa Code section 622.10. The opinion in Chidesterconcludes that the medical records are not testimony and thus may be obtained through a section 5(6) subpoena. I submit that this is clearly incorrect.
¶7*863We stated in Newman v. Blom, 249 Iowa 836, 89 N.W.2d 349 (1958):
[Medical records] are inadmissible against a patient or his privy in interest being within statutes making a position physician incompetent to testify regarding matters of which he acquires knowledge while acting in his professional capacity. The introduction of the records would obviously be an evasion of such statutes, for although the physician would not actually testify, yet the privileged matter sought to be barred would in fact be effectively placed in evidence.
¶8Id. at 843, 89 N.W.2d at 354 (quoting 58 Am.Jur. Witnesses § 543, at 304). The conclusion thus expressed represents the scope that must be given the privilege in order to accommodate the purposes of the privilege.
¶9Section 622.10 does not only pertain to communications made to physicians. It also applies without distinction to communications made to lawyers. It would be abhorrent for this court, as the constitutionally established tribunal of the organized bar, to approve prosecutorial invasion of lawyer’s files in an attempt to obtain information to be used against the lawyer’s client. It is no less abhorrent to grant such approval to raids by prosecutors on medical files.
¶10The Chidesteropinion attempted to bolster its conclusion on the ground that information obtained by reason of a county attorney’s subpoena may not be used to perpetuate testimony. That conclusion is debatable. The statement in State v. Hamilton, 309 N.W.2d 471, 478 (Iowa 1981), indicating that rule 5(6) may not be used to perpetuate testimony is clearly dictum because the subpoenas in that case were invalidly issued. Hamiltondoes recognize that evidence obtained through such subpoenas may be used at trial for some purposes and nothing in that opinion places any limitation on the use of documents in a criminal trial. Indeed, rule 5(6) implicitly allows the use of documents obtained through a county attorney’s subpoena after criminal charges have been brought.
¶11In the final analysis, the fact that there may be some limitation on the prosecutor’s use of the subpoenaed information at trial does not provide a basis for aborting the privilege. The privilege is designed to protect confidential communications from disclosure, and that purpose is frustrated nearly as much by compelled disclosure for investigatory purposes as by compelled disclosure for use as trial evidence.
¶12I would consider the privilege issue argued by the parties and overrule the Chi-dester opinion.