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.