H. B. 2806

(By Delegate Walters)
[Introduced March 31, 1993; referred to the
Committee on the Judiciary.]

A BILL to amend chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article thirty-three, relating to privileged communications between licensed physicians, chiropractors, dentists or optometrists.

Be it enacted by the Legislature of West Virginia:
That chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article thirty-three, to read as follows:

ARTICLE 33. LICENSED PHYSICIANS, CHIROPRACTORS, DENTISTS OR OPTOMETRISTS PRIVILEGED COMMUNICATIONS.

§30-33-1. Purpose and legislative intent.

The Legislature hereby finds that it is in the public interest to create and protect privileged communications and other acts by and between licensed physicians, chiropractors dentists or optometrists and their patients in this state againstimproper disclosure and without the express written approval and consent of the patient or his or her legal representative or without the approval or in compliance with the rules and procedures of courts of competent jurisdiction in this state. Therefore, this article should be liberally construed to affect such objects and purposes.

§30-33-2. Privileged communications and acts.

The following persons shall not testify in certain respects:
(a) A physician, chiropractor, dentist or optometrist concerning a communication made to him or her by his or her patient in that relation or his or her advice to his or her patient, except as otherwise provided in this section, and except that, if the patient is deemed to have waived any testimonial privilege under this section, the physician may be compelled to testify on the same subject.
(b) (1) If the testimonial privilege is deemed waived, a physician, chiropractor, dentist or optometrist may testify or may be compelled to testify in a civil action, in accordance with the discovery provisions of the rules of civil procedure in connection with a civil action under the following circumstances:
(i) If the patient, guardian or other legal representative of the patient gives express written consent;
(ii) If the patient is deceased, the spouse of the patient or his or her executor, administrator, administratrix of his or her estate gives express written consent;
(iii) If a medical claim, chiropractic claim, dental claimor optometric claim or an action for wrongful death or any other type of civil action is filed by the patient, the personal representative of the estate of the patient, if deceased, or his or her guardian or other legal representative, gives express written consent;
(iv) If the testimonial privilege of this section is deemed waived, a physician, chiropractor, dentist or optometrist may be compelled to testify or submit to discovery under the rules of civil procedure only as to communications or other acts made to him or her by the patient in question in that relation or his or her advice to the patient in question, that related casually or historically to the physical or mental injuries that are relative to the issue in the medical, chiropractic, dental or optometric claim, action for wrongful death or other civil action;
(v) As used in subdivisions (a) and (b) of this section, "communication" means acquiring, recording or transmitting any information, in any manner, concerning any facts, opinions or statements necessary to enable a physician, chiropractor, dentist or optometrist to diagnose, treat, prescribe or act for a patient. A "communication" may include, but is not limited to, any medical, chiropractic, dental or optometric office or hospital communication such as a record, chart, letter, memorandum, tape or tape recording, video recording, laboratory test and result, X ray, photograph, financial statement, diagnosis or prognosis;
(vi) Subdivisions (a) and (b) of this section apply todoctors of medicine, doctors of osteopathic medicine, doctors of podiatric medicine, doctors of psychiatry, doctors of chiropractic, optometry and dentists;
(vii) It is the purpose of this section among others to protect doctors of medicine, doctors of osteopathic medicine, doctors of podiatric medicine, doctors of chiropractic, doctors of psychiatry, optometry and dentists from being forced or coerced in any way, shape of fashion into providing privileged communications to anyone other than the patient or his or her attorney or legal representative under any circumstances or even in situations where an alleged waiver has occurred because of the filing of a civil lawsuit until or unless express written consent and approval is given by the patient or his or her attorney or legal representative or until proper legal process is used to obtain such communications in the course or scope of civil litigation by way of the formal discovery process in any legal proceeding.

NOTE: The purpose of this bill is to protect privileged communications by and between physicians, chiropractors, dentists or optometrists and their patients.

This article is new; therefore, strike-throughs and underscoring have been omitted.