As the only law review in our state, the West Virginia Law Review takes seriously its obligation to serve both
academia and our state’s legal community. We serve those interests by publishing
articles that are nationally relevant along with articles that address issues in
West Virginia. Historically, this Law Review has published special issues such as the National Coal Issue
and the Energy and Sustainability Issue, reflecting the unquestioned importance
of those areas of law to our state. However, we recognize that our state’s legal
community is well-served by academic analysis of all areas of law. We also recognize
that research specific to West Virginia can be difficult to find through major
commercial avenues. As such, Volume 117 of the West Virginia Law Review is proud to launch the West Virginia Law Review Online.
For my part, since it was your desire, I thought that the fountains ought to be
shown you from which you might draw, and the roads which you might pursue, not
so that I should become your guide (which would be an endless and unnecessary
task) but so that I might point you out the way, and as the practice is, might
hold out my finger toward the spring.
Health care providers are generally familiar with the doctor-patient privilege, which
protects information exchanged between a physician and a patient for the purposes
of rendering or receiving health care services.
The statutory peer review privilege is similar, except it protects communications
between health care providers who are engaged in the review and critique of both
specific and general elements of health care with the overall goal of health care
This Article will explore what peer review is, why it needs to be preserved, the
basic elements of peer review protection, and how to prepare and defend a privilege
log under the new
State ex rel. Wheeling Hospital., Inc. v. Wilson3decision by the Supreme Court of Appeals of West Virginia.
Peer review is the process by which doctors, hospitals, and other health care providers
review the performance of other doctors and health care providers.
The earliest known peer review can be traced to the American College of Surgeons.
In 1919, the College sought to standardize hospitals, organize medical staffs, and
set minimum standards.
In the early 20th century, peer review was developed “as a way to review the quality
of the care rendered by physicians and surgeons.”
It became a requirement in 1952 for “hospitals to perform peer review to qualify
“[P]eer review developed into the primary method of evaluating the quality of physician
services at . . . hospital[s] . . . .”
On February 2, 2016, a bipartisan group of eleven West Virginia delegates introduced
House Bill 4362,
1 aimed at creating a separate criminal offense for the act of strangulation.
2 The West Virginia Legislature passed it on March 5, 2016, and the governor
signed it into law on March 9, 2016.
Until the new law took effect on June 3, 2016,
West Virginia was one of a minority of states to lack such a statute.
Although West Virginia is now part of a growing number of jurisdictions to punish
strangulation as a felony,
the statutory language and elements of the crime vary widely by state.
7 Now, over a year since the law’s passage, this Article will attempt to appraise
its initial effectiveness and recommend some changes regarding its future application.
When the West Virginia Legislature meets in future sessions, it will likely consider
revisions to this new law. As it does so, it should weigh the approaches of
other state legislatures in deciding the severity of punishment and providing
clarifying language. West Virginia courts now face the challenge of interpreting
what actions constitute a qualifying offense for conviction. When comparing
the standards used in the judiciaries of other states, their approaches are
diverse. If the West Virginia Legislature pursues measures to clearly define
the statutory elements necessary for a conviction, it will mitigate the potential
for disparate approaches. In Section II, this Article will trace the background
of the new law and analyze the positions of other states and West Virginia
in applying strangulation laws. In Section III, it will offer some possible
solutions to the challenges currently facing the court system.