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.