On the morning of January 14, 1985, a young pregnant woman was assaulted and raped at knifepoint in her bed, while her two-year-old daughter slept beside her. ¹ Four months after the rape, the victim spotted her alleged assailant, Kevin Byrd. ² Her identification of him led to a rape conviction with a life sentence. ³ At the time of Mr. Byrd’s trial, DNA technology, using forensic testing and analysis of biological evidence, was not standard practice. ⁴ In 1997, while the case was on appeal, a comparison of Mr. Byrd’s DNA with the bodily fluid found in the rape kit established that Mr. Byrd could not have committed the rape. ⁵ After serving 12 years in prison, Mr. Byrd was exonerated as a result of the scientific advancements in DNA technology. ⁶

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.

—Cicero ¹

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. ¹ 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 improvement. ² 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. Wilson ³ decision 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. ⁴ The earliest known peer review can be traced to the American College of Surgeons. ⁵ In 1919, the College sought to standardize hospitals, organize medical staffs, and set minimum standards. ⁶ In the early 20th century, peer review was developed “as a way to review the quality of the care rendered by physicians and surgeons.” ⁷ It became a requirement in 1952 for “hospitals to perform peer review to qualify for accreditation.” ⁸ “[P]eer review developed into the primary method of evaluating the quality of physician services at . . . hospital[s] . . . .” ⁹