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.