STATE of West Virginia ex rel. William A. ALLEN, Petitioner, v. Honorable Thomas A. BEDELL, Judge of the Circuit Court of Harrison County, Respondent.
No. 22359.
Supreme Court of Appeals of West Virginia.
Decided Dec. 9, 1994.
454 S.E.2d 77
Submitted Sept. 13, 1994. Concurring Opinion of Justice Cleckley, Jan. 6, 1995.
Under these facts and circumstances, a writ of mandamus is issued directing the respondents to provide and compensate a qualified bailiff selected by the relator18 and the bailiff is to be required to work under the exclusive control and direction of the circuit court. Thus, the writ is granted as moulded for the aforementioned reasons.
Writ granted as moulded.
BROTHERTON, C.J., did not participate.
MILLER, Retired Justice, sitting by temporary assignment.
Jacquelyn I. Custer, Sr. Asst. Atty. Gen., Charleston, for respondent.
WORKMAN, Justice:
The Petitioner, William A. Allen (hereinafter “the Petitioner“), seeks a writ of prohibition against the Honorable Thomas A. Bedell, Judge of the Circuit Court of Harrison County. By order entered April 13, 1994, the lower court denied the Petitioner‘s motion to suppress the State‘s introduction of the results of a blood alcohol test administered upon the Petitioner by the United Hospital Center (hereinafter referred to as “UHC“). The Petitioner argues that the results of the blood test should have been ruled inadmissible and that hospital records relied upon by the State regarding the results of the blood testing should not have been available to the State. We find no error in the decisions of the lower court and hereby deny the requested writ of prohibition.
I.
On November 8, 1992, at approximately 12:17 a.m., the Petitioner was driving an automobile which veered off the highway and overturned. The Petitioner‘s stepbrother, a passenger in the vehicle, was killed as a result of the accident. The Petitioner was also injured in the accident and was transported to UHC. According to the Petitioner‘s treating nurse, Rosemary Cain, the Petitioner‘s treating physician ordered a blood sample as part of routine medical care and for diagnostic purposes. Ms. Cain also explained that because the odor of alcohol emanated from the Petitioner, standard hospital procedure indicated that a blood alcohol test be performed. According to Ms. Cain, the blood sample was drawn at 1:07 a.m. on November 8, 1992. The results of this test indicated that the Petitioner had a blood alcohol level of 0.14%.
At approximately 2:40 a.m., another blood sample was taken from the Petitioner by Ms. Cain at the direction of Deputy Kevin Haught of the Harrison County Sheriff‘s Department in conjunction with the issuance of a citation for driving under the influence of alcohol. This second blood sample was tested by the State Police Forensic Laboratory and was found to contain a blood alcohol level of 0.06%. When Deputy Haught requested this second test, he was unaware that UHC had already performed the first test. Deputy Haught also testified that the Petitioner had not been placed under arrest nor had any citation been issued at the time the first blood test was performed.
The Petitioner was subsequently charged with one count of causing a death while driving under the influence of alcohol in violation of
On appeal to this Court, the Petitioner contends that the lower court erred by (1) determining that the results of the Petitioner‘s first blood test were admissible at trial, and (2) permitting the State, during the suppression hearing, to use evidence obtained from the Petitioner‘s medical records.
II.
The Petitioner contends that the first blood test was not performed in accordance with the requirements of West Virginia‘s implied consent statute,
Any person who drives a motor vehicle in this state shall be deemed to have given his consent by the operation thereof, subject to the provisions of this article, to a preliminary breath analysis and a secondary chemical test of either his blood, breath or urine for the purposes of determining the alcoholic content of his blood.... A secondary test of blood ... shall be incidental to a lawful arrest and shall be administered at the direction of the arresting law-enforcement officer having reasonable grounds to believe the person to have committed an offense....
The statute also provides that refusal to submit to a secondary chemical test will result in license revocation for a period of at least one year and up to life.
In State v. Cribb, 310 S.C. 518, 426 S.E.2d 306 (1992), the treating physician of a defendant hospitalized subsequent to an accident ordered a blood test. 310 S.C. at 519, 426 S.E.2d at 307. Shortly thereafter, the highway patrol officers arrived at the hospital and requested the defendant‘s treating physician to conduct a blood alcohol test. Id. at 520, 426 S.E.2d at 308. Rather than ordering a second blood sample, the physician ordered that a blood alcohol test be performed on the sample taken from the defendant. The officers later obtained an arrest warrant for the defendant based on the results of the blood alcohol test. Id. The Cribb court concluded that South Carolina‘s implied consent statute, almost identical to our section 17C-5-4, was inapplicable since an arrest had not been effected at the time the blood test for alcohol was performed. Id. The Cribb court reasoned that the legislature intended to limit the application of the implied consent statute to situations in which blood alcohol content was measured after an arrest had been effected. Id.
The Petitioner in the present case appears to imply that a blood test obtained outside the scope of section 17C-5-4 should be deemed inadmissible. We find no such conclusion implicit within the statute. Section 17C-5-4 simply authorizes a law enforcement officer to obtain a blood test incident to a lawful arrest where the officer has reasonable grounds to believe that the individual committed an offense and creates an administrative mechanism through which an individual‘s license may be revoked. The inclusion of such authorization within our statutory scheme certainly does not intimate a legislative intent to disallow in the criminal context evidence of alcohol content obtained by medical personnel in the course of treatment.
The Petitioner‘s first blood test was ordered by medical personnel for diagnostic purposes. He had not yet been charged with a crime, and the deputy had not even arrived
III.
The Petitioner also contends that the lower court erred in allowing the treating nurse to testify at the suppression hearing regarding information contained in the Petitioner‘s hospital records and that such testimony violated a qualified privilege established by
Upon review of
Even in some jurisdictions which recognize a physician/patient privilege pursuant to Rule 503 of the Uniform Rules of Evidence, only confidential disclosures by the patient have been protected by the privilege, thus permitting introduction of routine blood tests evidencing intoxication. Oxford v. Hamilton, 297 Ark. 512, 763 S.W.2d 83 (1989). In Oxford, where a motorist brought a civil action against an individual allegedly driving under the influence of alcohol, the court ruled that blood test results indicating intoxication were admissible despite the applicability of Rule 503 of the Arkansas Rules of Evidence providing a physician/patient privilege. Id. at 514, 763 S.W.2d at 84; see Edward W. Cleary, McCormick on Evidence § 105, at 258-60 (3rd ed.1984); 8 John H. Wigmore, Evidence in Trials at Common Law § 2380a, at 828-32 (McNaughton Rev.1961). The Arkansas court reasoned that the physician/patient privilege is designed to protect only confidential communication between the patient and his physician and is not intended to shield the patient from disclosure of medical records devoid of confidential communication. Oxford, 297 Ark. at 514, 763 S.W.2d at 84; see also McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (1993).
Other jurisdictions have rationalized the introduction of evidence of intoxication contained in medical records under the exception to the hearsay rule for “[r]ecords of [r]egularly [c]onducted [a]ctivity.” See
In Commonwealth v. Dube, 413 Mass. 570, 601 N.E.2d 467 (1992), a defendant seeking exclusion of blood test results argued that the release of medical records violated his right to privacy. Id. at 572, 601 N.E.2d at 468. The blood test in Dube had been conducted in the course of routine treatment of the defendant during his hospitalization after the accident. Id. The Massachusetts court ruled that the admission of hospital records “for the purpose of showing that a criminal defendant had consumed intoxicating liquor shortly before events that led to a charge of operating a motor vehicle while under the influence of intoxicating liquor” had been admissible for “more than a decade” and would be admitted in Dube. Id. at 574, 601 N.E.2d at 469. Concluding that no violation of privacy had occurred, the court similarly found no impediment to the introduction of the incriminating blood test evidence. Id.
The blood tests in the present case were ordered by the medical personnel attending to the Petitioner subsequent to the accident. Such tests are not subject to exclusion based upon lack of conformity to the administrative requirements of
As we have often recognized, “[r]ulings on the admissibility of evidence are largely within a trial court‘s sound discretion and should not be disturbed unless there has been an abuse of discretion.” State v. Louk, 171 W.Va. 639, 643, 301 S.E.2d 596, 599 (1983); Syl.Pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983). We find no abuse of discretion, and the Petitioner‘s request for a writ of prohibition is hereby denied.
Writ denied.
MILLER, J., Retired, sitting by temporary assignment.
BROTHERTON, C.J., did not participate.
CLECKLEY, J., concurs, and reserves the right to file a concurring opinion.
CLECKLEY, Justice, concurring:
I believe the majority made two errors regarding appellate review. This petition should have been dismissed as improvidently granted simply because it was not ripe for our consideration. The “[l]iberal allowance” of extraordinary writs “degrades the prominence of the trial” and it undermines our statutory provisions limiting appellate review to final judgments. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1720-21, 123 L.Ed.2d 353, 371 (1993), quoting Engle v. Isaac, 456 U.S. 107, 127, 102 S.Ct. 1558, 1571, 71 L.Ed.2d 783, 800 (1982). More importantly, the majority opinion adds to the mass of legal confusion in this State when it engages in a lengthy and unnecessary discussion of the physician-patient privilege. Because neither of these errors was outcome determinative, I concur.
I.
Writs of Prohibition
This petition for a writ of prohibition should not have been reviewed by this Court. The writ of prohibition is a creature of common law. “The writ of prohibition is purely jurisdictional; it does not lie to correct mere errors.” State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 679, 143 S.E.2d 535, 541 (1965). The rationale behind a writ of prohibition is that by issuing certain orders the trial court has exceeded its jurisdiction, thus making prohibition appropriate.
Our earlier cases stated “neither the constitution nor the applicable statute enlarges or narrows the scope of the writ of prohibition as it was known at common law.” State ex rel. Miller v. Smith, 168 W.Va. 745, 755,
Mere doubt as to the correctness of a trial court‘s ruling on a motion in limine regarding an evidentiary issue is an insufficient basis to invoke this Court‘s writ power. To justify this extraordinary remedy, the petitioner has the burden of showing that the lower court‘s jurisdictional usurpation was clear and indisputable and, because there is no adequate relief at law, the extraordinary writ provides the only available and adequate remedy. Thus, writs of prohibition, as well as writs of mandamus and habeas corpus, should not be permitted when the error is correctable by appeal.
I believe that there are appropriate circumstances where a writ of prohibition or mandamus should be granted by this Court. Perhaps our problem stems from the fact that we have not developed specific standards and guidelines to determine whether prohibition or mandamus is appropriate in a particular case. I believe as a starting point at least five questions must be asked:
- Whether the party seeking the writ has other adequate means such as appeal to obtain the desired relief;1
- Whether the damage (other than expense and time) or prejudice suffered by the petitioner is correctable on appeal;
- Whether the circuit court‘s order is clearly erroneous as a matter of law;2
- Whether the circuit court‘s order is an oft repeated error or manifests persistent disregard for the West Virginia Rules of Evidence, Rules of Criminal Procedure, or Rules of Civil Procedure; and
- Whether the circuit court‘s order raises new and important problems or issues of law of first impression.3
See Fleming James, Jr., Geoffrey C. Hazard, Jr., & John Leubsdorf, Civil Procedure § 12.13 at 677 (3rd ed. 1992); In re Cement Antitrust Litigation, 688 F.2d 1297, 1301 (9th Cir.1982), aff‘d sub nom. Arizona v. United States District Court, 459 U.S. 1191, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983). See
The majority chooses to review a pretrial ruling on an evidentiary issue, raised in limine, concerning a privilege that never has existed in this State‘s history, at least in courts of record. While the majority is writing an opinion that adds nothing substantial to West Virginia‘s jurisprudence, the trial is postponed and justice is delayed. Ultimately, we are told in the majority‘s opinion that evidentiary rulings are within the discretion of the trial court which is hardly an earthshaking revelation. What makes this case egregious is that the granting of the rule to show cause even is inconsistent with the liberal language of Syllabus Point 1 of Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979) (writ of prohibition is to be used “to correct only substantial, clear-cut legal errors” and when there “is a high probability that the trial will be completely reversed if the error is not corrected in advance“).4
The writ of prohibition in this case, as well as others, involves a perversion and exploitation of the concept of jurisdictional usurpation.5 The loose language in cases such as Hinkle, supra; McFoy v. Amerigas, Inc., 170 W.Va. 526, 532, 295 S.E.2d 16, 22 (1982), and Naum v. Halbritter, 172 W.Va. 610, 309 S.E.2d 109 (1983), has contributed to the erosion of the proper use of the writs.6 I would overrule these cases as a necessary step in bringing the writ of prohibition back into proper focus.
I concede that some appellate review from lower courts’ interlocutory rulings is necessary and helpful.7 Undoubtedly, the writ procedure has introduced into West Virginia appellate practice a flexible device of practical utility:
The procedure is bounded by much stricter time limits than an appeal, involves a relatively simple record, concerns almost purely legal issues, and permits the appellate court to consider giving relief only in cases in which the application shows a strong justification for doing so. Nevertheless, the writ procedure would be unnecessary if ‘ordinary’ interlocutory review were less restricted in its availability.
Fleming James, Jr., Geoffrey C. Hazard, Jr., & John Leubsdorf, Civil Procedure § 12.13 at 678.
The solution, however, is for the legislature to expand the statutory opportunity for appeal in West Virginia, including appeals of some interlocutory rulings. Unquestionably,
II.
Physician-Patient Privilege
After declaring that a physician-patient privilege has not been adopted in West Virginia, the majority in two pages goes on to imply what our ruling would be if we had one. This type of gratuitous dicta sends a mixed message to lawyers and to our lower tribunals.8 I do not believe we should continue to discuss the physician-patient privilege as if we partially recognize it. To be clear and specific, there is no physician-patient privilege in West Virginia;9 and, unless the legislature in its wisdom sees fit to adopt the privilege, we should not create one indirectly by implication.
As we do in this case, we have skirted dangerously on the edge of creating a physician-patient privilege by suggestion. In King v. Kayak Manufacturing Corp., 182 W.Va. 276, 287, 387 S.E.2d 511, 522 (1989), we stated “[e]ven if we assume that such a privilege exists, the plaintiff waived it[.]” In State v. Cheshire, 173 W.Va. 123, 127, 313
“As the hospital asserts, West Virginia has not codified a physician-patient privilege. However, the absence of such a privilege contemplates the release of medical information only as it relates to the condition a plaintiff has placed at issue in a lawsuit; it does not efface the highly confidential nature of the physician-patient relationship that arises by express or implied contract.” (Emphasis in original).
In Morris, 191 W.Va. at 434-35, 446 S.E.2d at 656-57, we came even closer to adopting a physician-patient privilege:
“Before Kitzmiller, supra, the physician-patient privilege was not recognized under common law in West Virginia.... We have acknowledged that ‘[t]he history of the common law is one of gradual judicial development and adjustment of the case law to fit the changing conditions of society.’ ... Therefore, in Kitzmiller this Court, in order to meet the current social demands, recognized that there is a fiduciary relationship between a patient and a physician which prohibits the physician from divulging confidential information he has acquired while attending to a patient.” (Citations omitted).
Although I would not have voted with the majority in Kitzmiller, I am not particularly troubled with a legal principle that merely states that nonjudicial expressions by a physician concerning the treatment of his or her patient constitute a violation of this new duty of confidentiality. The point must be made, however, that the adoption of this duty of confidentiality does not in any way regulate what may be testified to in judicial proceedings. Conversations between patients and physicians are not barred by either Rule 601 (general competency) or Rule 501 (privileges) of the West Virginia Rules of Evidence.10 When a disclosure of information is sought and it is required by law or compelled by court order, usually only a privilege will protect against disclosure.
Under Rule 501 of the West Virginia Rules of Evidence, courts may recognize privileges
I concede that a majority of states have adopted the physician-patient privilege by statute. The irony is that all the jurisdictions that have adopted the physician-patient privilege also have adopted so many exceptions to its application that its scope is either significantly limited or the privilege has been completely abolished. In these jurisdictions, the privilege was adopted to facilitate the effective rendering of the professional service offered by a physician. See Franklin D. Cleckley, A Modest Proposal: A Psychotherapist-Patient Privilege for West Virginia, 93 W.Va.L.Rev. 1, 22-23 (1990). Thus, as the Supreme Court suggests in Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 913, 63 L.Ed.2d 186, 195 (1980), the physician-patient privilege is based on the policy that “the physician must know all that a patient can articulate in order to identify and to treat disease[.]” I have serious reservation whether an evidentiary privilege is necessary to facilitate proper medical treatment. Indeed, a wise patient who wants to survive his or her current medical problems would have a natural incentive to disclose all relevant information when seeking medical treat
“It is well recognized that a privilege may be created by statute. A statute granting a privilege is to be strictly construed so as ‘to avoid a construction that would suppress otherwise competent evidence.’ St. Regis Paper Co. v. United States, 368 U.S. 208, 218, 82 S.Ct. 289, 295, 7 L.Ed.2d 240, 248 (1961)....
... A finding of ‘privilege,’ however, shields the requested information from disclosure despite the need demonstrated by the litigant.” (Footnote omitted).
Because privileges contravene the fundamental principle that “the public has a right to every [person‘s] evidence,” courts should recognize them only when the parties make a convincing showing both that the interest is one which society values strongly and that a rule of privilege is necessary to foster that value. John H. Wigmore, Evidence in Trials at Common Law § 2258 (McNaughton rev. 1961).
The Scriptures state “if the trumpet does not sound a clear call, who will get ready for battle.”13 Appellate courts must speak with a clear voice. In this area, the message must be simple: There is no physician-patient privilege in West Virginia notwithstanding any of our past decisions or our adoption of a duty of confidentiality regarding physicians.
Roberta MAYHORN, as Executrix of the Estate of Homer Mayhorn, Plaintiff Below, Appellant, v. LOGAN MEDICAL FOUNDATION, a corporation, dba Logan General Hospital; and Dr. Jim Gosien, M.D., Defendants Below, Appellees.
No. 21933.
Supreme Court of Appeals of West Virginia.
Decided Dec. 9, 1994.
454 S.E.2d 87
Submitted Sept. 20, 1994. Dissenting Opinion of Justice Neely, Dec. 12, 1994.