H. B. 2468


(By Delegates Warner, Huntwork, Walters,
Petersen and Brown)

[Introduced March 4, 1993; referred to the
Committee on the Judiciary.]



A BILL to amend article three, chapter fifty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section ten, relating to evidence and witnesses; competency of witnesses; and physician-patient privilege.

Be it enacted by the Legislature of West Virginia:
That article three, chapter fifty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section ten, to read as follows:
ARTICLE 3. COMPETENCY OF WITNESSES.

§57-3-10. Communications to physicians not subject to being compelled as testimony; exceptions.

(a) No physician, as defined by the provisions of section five, article one, chapter twenty-seven of this code, may be compelled to testify in any criminal or grand jury proceedings or in any domestic relations action in any court of this state:
(1) With respect to any confession or communication, made to that person, in his or her professional capacity in the course of an examination by the physician without the consent of the person making such confession or communication; or
(2) With respect to any communication made to such person, in his or her professional capacity, by either spouse, in connection with any effort to reconcile estranged spouses, without the consent of the spouse making the communication. This subsection is in addition to the protection and privilege afforded pursuant to section ten-a, article two, chapter forty-eight of this code.
(b) Definitions. -- As used in this section, the following definitions apply:
(1) "Confidential communication between patient and physician" means information, including information obtained by an examination of the patient, transmitted between a patient and his physician in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the physician is consulted and includes a diagnosis made and the advice given by the physician in the course of that relationship.
(2) "Holder of the privilege" means:
(i) The patient when he has no guardian or conservator;
(ii) A guardian or conservator of the patient when the patient has a guardian or conservator;
(iii) The personal representative of the patient if the patient is dead.
(3) "Patient" means a person who consults a physician or submits to an examination by a physician for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his physical or mental or emotional condition.
(4) "Persons" includes partnerships, corporations, associations and other groups and entities.
(5) "Physician" means a person authorized, or reasonably believed by the patient to be authorized, to practice medicine in any state in the nation.
(6) "Physician-patient privilege" means the patient, whether or not a party, has a privilege to refuse to disclose and to prevent another from disclosing, a confidential communication between patient and physician if the privilege is claimed by:
(i) The holder of the privilege;
(ii) A person who is authorized to claim the privilege by the holder of the privilege;
(iii) The person who was the physician at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.
(c) When physician required to claim privilege. -- The physician who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the "physician-patient privilege."
(d) Exceptions. -- There is no privilege under this section for the following situations:
(1) As to a communication relevant to an issue concerning the condition of the patient if the issue has been tendered by:
(i) The patient;
(ii) Any party claiming through or under the patient;
(iii) Any party claiming as a beneficiary of the patient through a contract to which the patient is or was a party; or
(iv) The plaintiff in an action brought for damages for the injury or death of the patient.
(2) If the services of the physician were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a tort or to escape detection or apprehension after the commission of a crime or a tort.
(3) In a criminal proceeding.
(4) In a proceeding to recover damages on account of conduct of the patient which constitutes a crime.
(5) As to a communication relevant to an issue between parties all of whom claim through a deceased patient, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.
(6) As to a communication relevant to an issue of breach, by the physician or by the patient, of a duty arising out of the physician-patient relationship.
(7) As to a communication relevant to an issue concerning the intention of a patient, now deceased, with respect to a deed of conveyance, will or other writing, executed by the patient, purporting to affect an interest in property.
(8) As to a communication relevant to an issue concerning the validity of a deed of conveyance, will or other writing, executed by a patient, now deceased, purporting to affect an interest in property.
(9) In a proceeding to commit the patient or otherwise place him or her or his or her property, or both, under the control of another because of his or her alleged mental or physical condition.
(10) In a proceeding brought by or on behalf of the patient to establish his competence.
(11) As to information that the physician or the patient is required to report to a public employee, or as to information required to be recorded in a public office, if such report or record is open to public inspection.
(12) In a proceeding brought by a public entity to determine whether a right, authority, license or privilege (including the right or privilege to be employed by the public entity or to hold a public office) should be revoked, suspended, terminated, limited or conditioned.


NOTE: The purpose of this bill is to establish a physician- patient privilege where the physician may not be compelled to testify in a court proceeding. It also sets out exceptions to this privilege.

§57-3-10 is new; therefore, strike-throughs and underscoring have been omitted.