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

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. ³ Until the new law took effect on June 3, 2016, ⁴ West Virginia was one of a minority of states to lack such a statute. ⁵ Although West Virginia is now part of a growing number of jurisdictions to punish strangulation as a felony, ⁶ 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.