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, ___ U.S. ___, ___, 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.
(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, 285 S.E.2d 500, 505 (1981).
(Citation omitted). Unfortunately, in West Virginia the writ of
prohibition has been used with increasing frequency as a device to
escape from the "final judgment" rule. When appropriate, writs of
prohibition and mandamus provide a drastic remedy to be invoked
only in extraordinary situations. "[O]nly exceptional
circumstances amounting to a judicial 'usurpation of power' will
justify the invocation of this extraordinary remedy." Will v.
United States, 389 U.S. 90, 95, 88 S. Ct. 269, 273, 19 L.Ed.2d 305,
309 (1967). (Citation omitted). See also Gulfstream Aerospace
Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S. Ct. 1133, 99 L.Ed.2d
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
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:
1. Whether the party seeking the writ has other adequate means such as appeal to obtain the desired relief; (See footnote 1)
2. Whether the damage (other than expense and time) or prejudice suffered by the petitioner is correctable on appeal;
3. Whether the circuit court's order is clearly erroneous as a matter of law; (See footnote 2)
4. 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
5. Whether the circuit court's order raises new and important problems or issues of law of first impression. (See footnote 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 also Mallard v. United
States District Court, 490 U.S. 296, 109 S. Ct. 1814, 104 L.Ed.2d
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 State ex rel. 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").
(See footnote 4)
The writ of prohibition in this case, as well as others,
involves a perversion and exploitation of the concept of
(See footnote 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.
(See footnote 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.
(See footnote 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, W. Va.
Code, 58-5-1 (1925), is antiquated and in need of comprehensive and
substantial revision. Although this Court has authority to
accomplish some of the necessary reform through its rulemaking
authority, I believe that revision is better undertaken by the
legislature because the "right" and "scope" of appeal are matters of substantive law. Hopefully, the various bar associations in
this State will give serious attention to recommendations
concerning legislative and rule reform that would give this Court
the same degree and flexibility that it has enjoyed under the writ
practice. My general suggestion is that appellate review of some
interlocutory rulings be allowed whenever the question presented is
either of great practical importance in a particular case or of
general importance as a matter of procedural law.
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 S.E.2d 61, 67 (1984), we stated
"[a]side from the issues of whether such privilege exists in a
criminal case in this state, . . . we question whether the
consultation was performed on a private basis." (Emphasis added;
citations omitted). In addition to these unfortunate and
unnecessary excursions, recently, we added a physician-patient
fiduciary relationship to our jurisprudence. See Morris v.
Consolidation Coal Co., ___ W. Va. ___, 446 S.E.2d 648 (1994);
State ex rel. Kitzmiller v. Henning, 190 W. Va. 142, 437 S.E.2d 452
(1993). Although we have said there is not a physician-patient
privilege, we have not come close to defining the limitations or
parameters of this new physician-patient fiduciary duty. In
Kitzmiller, 190 W. Va. at 144, 437 S.E.2d at 454, we stated:
"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, ___ W. Va. at ___, 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. (See footnote 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 only to the extent they exist under common law, statute, or the Constitution. (See footnote 11) There is clear authority that this privilege is of a statutory origin and did not exist at common law. Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L.Ed.2d 64 (1977). "Despite the language to the effect that privileges 'shall be governed by the principle of common law,' it is contemplated that the courts will not adopt or permit a liberal expansion of the existing acknowledged privileges." 1 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 5-1(C)(2) at 472 (1994), quoting, in part, W.Va.R.Evid. 501. (Emphasis added). I believe it would be unwise both theoretically and practically to adopt a physician-patient privilege.
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 treatment.
(See footnote 12) Lastly, it
must be remembered that the physician-patient privilege works both
ways in the judicial system. See Ronan E. Degnan, The Law of
Federal Evidence Reform, 76 Harv. L. Rev. 275, 300 (1962) (danger
of privilege being used to block disclosures that could "defeat
dishonest claims or defenses"). In Baldridge v. Shapiro, 455 U.S.
345, 362, 102 S. Ct. 1103, 1112-13, 71 L.Ed.2d 199, 212-13 (1982),
the Supreme Court stated:
"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."
(See footnote 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.
"In this case the defendant seeks to invoke
prohibition on the grounds that the court has
exceeded its legitimate powers, and not on
the grounds of lack of jurisdiction. In this
type of case the issuance of the writ is
discretionary with the appellate court.
Prohibition will issue only in clear cases of
abuse." (Emphasis added; citation omitted).
The only authority cited in Woodall for the proposition that this Court has "discretionary" authority to grant writs of prohibition is Brown v. Arnold, 125 W. Va. 824, 26 S.E.2d 238 (1943). Brown not only does not support the Woodall contention, it expressly rejects it. The Court in Brown stated that it had been cited no cases and could not find any cases that permitted the granting of a writ of prohibition beyond what was provided for in W. Va. Code, 53-1-1 (1923), which states "'[t]he right of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power[.]'" 125 W. Va. at 834-35, 26 S.E.2d at 243. (Emphasis added). In fact, the most poignant statement made in Brown was: "Judicial precedent in this jurisdiction precludes the use of the writ of prohibition as a means of correcting mere errors and irregularities in matters over which the inferior court has cognizance." 125 W. Va. at 839, 26 S.E.2d at 245.
Of course, this Court did not stop with Woodall. We added other reasons not supported by precedent or statute to justify our intervention into lower court's rulings on interlocutory matters. In Naum, supra, we stated that the granting of a writ of prohibition was based on political harm to a prosecutor that was certain to occur during the period when his appeal was maturing for consideration. Further, this Court relied on the concept of judicial economy by stating that "allowing the trial to go through to its conclusion would be an exercise in futility, wasting both the trial court's time and the state's resources." 172 W. Va. at 613, 309 S.E.2d at 112. In McFoy v. Amerigas, Inc., 170 W. Va. at 532, 295 S.E.2d at 22, we stated that "[o]ur modern practice is to allow the use of prohibition, based on the particular facts of the case, where a remedy by appeal is unavailable or inadequate, or where irremediable prejudice may result from lack of an adequate interlocutory review." (Citation omitted). Under the language of these cases, any serious procedural, evidentiary, or substantive law misadventure can be characterized as appropriate for prohibition and lawyers have resorted to this characterization with great affinity.
"In some respects the duty of confidentiality
provides greater protection for privacy than
an evidentiary privilege. A privilege
applies only when testimony is sought in a
legal proceeding, whereas the duty of
confidentiality applies to prevent disclosure
of secrets in extrajudicial settings as
well." Christopher B. Mueller & Laird C.
Kirkpatrick, Evidence § 5.2 at 335 (1994).
For example, all communications to an attorney by a client are
not privileged, and an attorney may be called upon to testify
regarding conversations that were not intended as confidential;
but the confidentiality rule under our code of professional
ethics may very well limit the attorney from disclosing the
communications publicly. There are, however, some unique
features of a privilege that are significant:
"Nonetheless, complete confidentiality can
generally be guaranteed only if an
evidentiary privilege also applies. In the
absence of a privilege, a person called as a
witness can normally be compelled to disclose
confidential communications, regardless of
any professional standard of confidentiality
and regardless of what personal assurances or
contractual commitments were given to the
communicants." Christopher B. Mueller &
Laird C. Kirkpatrick, Evidence § 5.2 at 336.
It is important for practicing physicians and attorneys to
be instructed on this difference, so they know not to make a confidential commitment beyond that which the law of privileges permits.