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21-0830, Robert D. Toler v. Cornerstone Hospital of Huntington, LLC

Chief Justice Walker, dissenting, joined by Justice Wooton:

The Legislature has provided hospitals and health care providers with a 

substantial shield in the form of the Medical Professional Liability Act1and the peer review 

privilege at issue in this case. The majority opinion has taken that shield and cobbled a 

fortification wall at its edges to build a fortress surpassing even the bounds of the 

Legislature’s sweeping protections. The majority opinion would prompt any reasonable 

lawyer to counsel hospitals to jam any adverse event that occurs within its walls into a 

document purported to “better healthcare,” and filter it through a “review organization” 

thereby shielding non-patient care related facts from discovery. Because the majority has 

not applied the statute to these facts beyond blind deference to the circuit court that far 

exceeds both the scope of the statutory language and the purpose of the peer review 

privilege, I respectfully dissent.

The purpose of the peer review privilege is steadfast in protecting peer-topeer examination of the performance of health care services: “The enactment of West 

Virginia Code §§ 30-3C-1 to -3 (1993) clearly evinces a public policy encouraging health 

care professionals to monitor the competency and professional conduct of their peers in 

1 W. Va. Code §§ 55-7B-1 to -12.

FILED

June 15, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

order to safeguard and improve the quality of patient care.”2 This Court explained the 

importance of professional self-evaluation in Daily Gazette Co. v. West Virginia Board of 

Medicine,

One of the better discussions concerning the reason why state 

legislatures generally protect peer review proceedings from 

disclosure is contained in Jenkins v. Wu, 102 Ill.2d 468, 468 

N.E.2d 1162 (1984). . . . [T]he Supreme Court of Illinois 

explained the purpose of peer review privilege legislation:

“[T]he purpose of this legislation is not to 

facilitate the prosecution of malpractice cases. 

Rather, its purpose is to ensure the effectiveness 

of professional self-evaluation, by members of 

the medical profession, in the interest of 

improving the quality of health care. The Act is 

premised on the belief that, absent the statutory 

peer-review privilege, physicians would be 

reluctant to sit on peer-review committees and 

engage in frank evaluations of their colleagues.”

102 Ill.2d at 479-80, 468 N.E.2d at 116-69.

[3]

In discussing the “chilling effect” of disclosing documents that are properly 

within the peer review privilege, we have recognized that “[t]he enactment of the peer 

review statutes represents a legislative realization that self-policing within the medical 

community is vital.”

4

 And, 

Doctors are motivated to engage in strict peer review by the 

desire to maintain the patient’s well-being and to establish a 

2 Syl. Pt. 2, Young v. Saldanha, 189 W. Va. 330, 431 S.E.2d 669 (1993) (emphasis 

added).

3 177 W. Va. 316, 322, 352 S.E.2d 66, 72 (1986).

4 Saldanha, 189 W. Va. at 335, 431 S.E.2d at 674.
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highly respected name for both the hospital and the practitioner 

within the public and professional communities. However, 

doctors seem to be reluctant to engage in strict peer review due 

to a number of apprehensions: loss of referrals, respect, and 

friends, possible retaliations, vulnerability to torts, and fear of 

malpractice actions in which the records of the peer review 

proceedings might be used.[5]

Using the purpose of the peer review statute as a backdrop, the peer review 

privilege is established at West Virginia Code § 30-3C-3. It provides in pertinent part that 

“[t]he proceedings and records of a review organization shall be confidential and privileged 

and shall not be subject to subpoena or discovery proceedings or be admitted as evidence 

in any civil action arising out of the matters which are subject to evaluation and review by 

such organization[.]”

6

 But, information, documents, or records otherwise available from 

original sources are not immune from discovery “merely because they were presented 

during proceedings of such organization[.]”

7

5

Id. (quoting Gregory G. Gosfield, Medical Peer Review Protection in the Health

Care Industry, 52 Temp.L.Q. 552, 558 (1979)).

6 W. Va. Code § 30-3C-3 (1980). Insofar as I am concerned in this dissent with 

documentary evidence (i.e., the incident report), it is unnecessary to include the testimonial 

privileges the statute extends to peer review organizations as well. Suffice it to say that I 

disagree with the majority that the failure to object to Cornerstone’s motion in limine to 

exclude references to privileged material constitutes a waiver when that motion in limine, 

at most, is a redundancy of matters already decided by the circuit court in finding the 

incident report privileged in the first place. 

7

Id.
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To establish application of the privilege, the incident report must be a record 

of a review organization. A review organization is defined as 

“any committee or organization engaging in peer review

. . . , to gather and review information relating to the care and 

treatment of patients for the purposes of: (i) Evaluating and 

improving the quality of health care rendered; (ii) reducing 

morbidity or mortality; or (iii) establishing and enforcing 

guidelines designed to keep within reasonable bounds the cost 

of health care.”

[8]

“Peer review,” in turn, means the procedure for evaluation by health care professionals of 

the quality and efficiency of services ordered or performed by other health care 

professionals, including practice analysis, inpatient hospital and extended care facility 

utilization review, medical audit, ambulatory care review, claims review and patient safety 

review.9

The majority rests its conclusion that the peer review privilege was properly 

applied to the incident report below because nothing in the statute specifically excludes

non-patient documents from the protections of the peer review privilege, but does nothing 

to analyze how the incident report otherwise meets the criteria that is included in the 

statutory framework. In apparent deference to the circuit court’s legal conclusions, the 

8 W. Va. Code § 30-3C-1 (1980) (emphasis added). The ellipses removes a nonexclusive list of committees or organizations for ease of reference.

9

Id.
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majority has failed to apply the statute to these facts and reaches a result that distorts both 

the scope and purpose of the peer review privilege.

As noted by the majority, 

“[t]o determine whether a particular document is 

protected by the peer review privilege codified at W. Va. Code 

§ 30-3C-3 (1980) (Repl. Vol. 2015), a reviewing court must 

ascertain both the exact origin and the specific use of the 

document in question. Documents that have been created 

exclusively by or for a review organization, or that originate 

therein, and that are used solely by that entity in the peer review 

process are privileged. However, documents that either (1) are 

not created exclusively by or for a review organization, (2) 

originate outside the peer review process, or (3) are used 

outside the peer review process are not privileged.”

[10]

Applying the statutory definitions to the factual scenario below, the incident report must 

have been “peer review” material created exclusively by or for a “review organization” and

both of those definitions involve health care. A review organization is convened to gather 

and review information relating to the care and treatment of patients. Similarly, peer 

review is an evaluation of the quality and efficiency of services ordered or performed by 

other health care professionals. As a health care professional cannot order or perform 

services on a non-patient so as to meet the definition of “peer review,” and the definition 

of “review organization” outright provides that those organizations review the care and 

10 Syl. Pt. 1, State ex rel. Wheeling Hospital, Inc. v. Wilson, 236 W. Va. 560, 782 

S.E.2d 622 (2016) (emphasis added).
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treatment of patients, I disagree with the majority’s analysis that the peer review privilege

may be properly applied to documents relative to a non-patient.11

If we assume that the majority has concluded the peer review privilege 

applies because the presence of nursing tape in a patient room that (allegedly) affected a 

non-patient visitor could have some non-realized impact on patient care, it necessarily 

relies on the breadth of the statute. But the breadth of a statute does not mean it is an 

endless chasm into which every factual scenario fits; this statute has parameters. Had the 

Legislature wanted to say that a hospital12 can generate any document and protect it from 

discovery by merely asserting that an incident occurred in the hospital, it would have said 

so. Instead, it kept with the purpose of the peer review privilege – that is, peer-to-peer 

review. Peers (health care professionals) review the “quality and efficiency of services 

ordered or performed” by their peers (other health care professionals). But even if we 

accept the majority’s broad view of “care and treatment of patients” and the “quality and 

efficiency of services ordered or performed by other healthcare professionals” the facts of 

this case cannot support application of the peer review privilege because this document 

cannot have been generated for that purpose.

11 See also supra n.2, citing Syl. Pt. 2, Saldanha (“The enactment of West Virginia 

Code §§ 30-3C-1 to -3 (1993) clearly evinces a public policy encouraging health care 

professionals to monitor the competency and professional conduct of their peers in order 

to safeguard and improve the quality of patient care.”) (emphasis added).

12 See infra n.21.
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Here, let’s assume that plaintiff’s version of events is true; that he told the 

nurses who responded to his fall that he tripped on nursing tape. If the peer review privilege 

may be extended to documents involving a non-patient and we take a broad view of the 

statutes in play, one could conclude that documents generated in response to that fall could 

impact patient care. Under that scenario, the nursing tape was left in a patient’s room – if 

a peer review organization reviews that nursing tape was left there, it can implement a 

policy requiring the nurse to make a sweep of the room for obstructions near the patient’s 

bed to prevent patient falls.13 

But those aren’t the facts the hospital pleads. The facts (according to the 

hospital) are that there was never any nursing tape left in the room and that Mr. Toler never 

said a word to anyone about nursing tape until he filed his civil action. The testimony of 

the nurses was that Mr. Toler’s legs gave out. What possible reason for improving 

healthcare could Nurse Hall have had when generating that incident report when the 

unequivocal testimony was that Mr. Toler (a non-patient) fell of his own accord? The peer 

review privilege invoked below was premised on the argument that allegations in the civil 

action involved healthcare. 

13 This assumes, of course, that the presence of tape in the floor is a health care 

professional function and not a housekeeping function.
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That is an after-the-fact justification for generation of the report when 

application of the privilege evaluates in-time state of mind: “[i]t goes without saying that 

documents using data that is generated exclusively for or by a peer review organization for 

its sole use are protected by the peer review privilege.”14 We underscored by syllabus point 

that the document must be “created exclusively by or for a review organization”

15 and that 

“the origin of the document determines if it is privileged.”16 Even under a broad view of 

the statute, an unsafe patient room (by virtue of nursing tape on the floor) cannot transform 

this incident report into patient care for purposes of the peer review privilege because the 

hospital maintains no such unsafe environment ever existed. In other words, the incident 

report at issue here cannot have been created for the purpose of improving healthcare when 

no specter of healthcare was being performed. For that reason, even if the peer review 

14 Wheeling Hosp., 236 W. Va. at 570, 782 S.E.2d at 632 (emphasis added). 

15 Id. at Syl. Pt. 1 (emphasis added). This syllabus point took the recommendation

in State ex rel. Shroades v Henry, 187 W. Va. 723, 729, 421 S.E.2d 264, 270 (1992) –

“When discovery is sought by identifying existing documents or of documents held by a 

non-review organization, the party claiming the document is privileged should identify the 

document by name, date, custodian, source and reason for creation[]” – and crafted a 

syllabus point relative to analyzing the peer review privilege. The “reason for creation” 

element is incorporated into the portion of the syllabus point reiterating that the analysis of 

the privilege includes ascertaining the origin of the document and its use by the review 

organization. See Wheeling Hosp., 236 W. Va. at 574, 782 S.E.2d at 636.

The 2019 amendments further clarify that the peer review privilege attaches to 

documents “prepared by or on behalf of a health care provider for the purpose of improving 

the quality, delivery, or efficiency of health care . . . .”. W. Va. Code § 30-3C-3(a) (2019)

(emphasis added).

16 Wheeling Hosp., 236 W. Va. at 570, 782 S.E.2d 632 (quoting Shroades, 187 W. 

Va. at 728, 421 S.E.2d at 269).
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privilege may be extended to documents involving non-patients under the guise that 

“patient care” may be obliquely affected, I disagree that the privilege may be applied under 

these facts to preclude disclosure of the incident report to Mr. Toler.17

In affirming the circuit court’s conclusion that this document was privileged, 

the majority has set a disturbing precedent that anything that occurs in a hospital may

hypothetically affect patient care and, for that reason alone, suffices to meet the definitional 

requirements of asserting the peer review privilege without actually applying those 

definitional requirements. Specifically, the majority defers to the circuit court’s findings18

that (1) the incident report was prepared by a nurse and reviewed by the Director of Quality 

Management19 and (2) the incident report was generated to report a non-routine event that 

17 Because the incident report remains privileged by majority vote, I am unable to 

conduct the harmless error analysis as suggested by Cornerstone.

18 I disagree that the circuit court’s application of the peer review privilege is subject 

only to abuse of discretion review insofar as it involves application of a statute.

19 The 2019 amendment broadened the definition of “review organization” to 

include individuals, but the version of the statute applied in this case does not. As discussed 

in Shroades, the first question in the analysis of the peer review privilege is from whom 

the disclosure is sought (i.e., is there a review organization that fits the statutory definition) 

and, if the document did not originate there, where it originated. Shroades, 187 W. Va. at 

728-29, 421 S.E.2d at 269-270. 

The makeup of the “review organization” purportedly convened to review Mr. 

Toler’s fall is not sufficiently described by Cornerstone, and Mr. Toler has not argued the 

original source exception. Because the record does nothing to cure the confusion, I am 

without sufficient information to evaluate whether it applies here. It bears mentioning, 

however, that in Wheeling Hospital, this Court specifically cautioned that 
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had some potential for injury to a patient or visitor and for that reason it was generated with 

the intent to ensure quality health care was rendered at the hospital. 

Notably absent from the majority’s analysis is an evaluation of what “patient 

care” was being evaluated by this review organization and how this incident report was 

used to ensure quality health care. As noted above, based on the facts put forth by 

Cornerstone, that evaluation does not lead back to “patient care.” In that sense, reliance on 

the circuit court’s findings, which are little more than broad generalizations about nonroutine events, is much more problematic than the fact-specific inquiry that analysis of an 

asserted privilege should be.

20

 It creates a rule that non-routine events that occur “in the 

facility” are subject an assertion of the peer review privilege because that “facility” is a 

hospital and patient care is going on somewhere. 

“[d]ocuments that may be provided to a peer review committee, but 

were not originally prepared exclusively for the committee and are also 

accessible to staff of the facility in their capacities as employees or managers 

of the facility, separate and apart from any role on a review committee, are 

not in any way protected by the privilege.”

236 W. Va. at 572, 782 S.E.2d at 634 (quoting Large v. Heartland-Lansing of Bridgeport 

Ohio, LLC, 995 N.E.2d 872-884-85 (Ohio Ct. App. 2013) (citations omitted)).

20 See Syl. Pt. 2, Shroades, 187 W. Va. 723, 421 S.E.2d 264 (1992) (“The 

determination of which materials are privileged under W. Va. Code 30-3C-1[1975] et seq.

is essentially a factual question and the party asserting the privilege has the burden of 

demonstrating that the privilege applies.”). As discussed above, I take issue with the 

“facts” as asserted by hospital in support of this privilege – that the incident report was 

generated to prevent future falls on nursing tape that they maintain was never there to begin 

with.
11

Under the 1980 version of the peer review statute, the “peer” in “peer review” 

is another individual health care professional21-- not a health care facility.

22

 But the 

majority writes out “peer” and “review” from consideration when extending the protection 

to what amounts to a business record under these facts. In extending the peer review 

privilege to this incident report merely because it documents a non-routine event happening 

in a hospital where there are patients, visitors, and employees who might be injured, the 

majority takes a leap outside the scope of the statutory language and the purpose of the 

peer review privilege.

A good question to ask in determining whether the peer review privilege 

should apply is, “what would the hospital or health care professional have fixed on these 

facts?” Would it have fixed any healthcare service? If there is a slip-and-fall on water in 

the waiting room (which, according to Cornerstone would have prompted the generation 

of an incident report) is there a call made to a healthcare provider? Or is the call made to 

maintenance? If a visitor gets food poisoning in the hospital cafeteria (a non-routine event 

that would have prompted generation of an incident report), is a peer review organization 

21 See W. Va. Code § 30-3C-1 (defining health care professionals).

22 The 2019 amendments change the term to “health care provider” and that term

includes “a person, partnership, corporation, professional limited liability company, health 

care facility, entity or institution licensed by, or certified in, this state or another state, to 

provide health care or professional health care services . . . .”
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called upon to engage in critical thinking of how it can provide better healthcare by making 

better sandwiches? Or is that a nutrition services problem? What about issues in the gift 

shop – is it “patient care” since patients could hypothetically go there? 

The majority, in casting so wide a net, ignores that a hospital is not always,

under all fact patterns, providing a healthcare service simply because it is a hospital. And, 

under the majority’s interpretation of this statute, anything that happens in a hospital is 

healthcare and is protected from disclosure in any type of civil action under the peer review 

privilege, regardless of the circumstances that prompted generation of the incident report.

The peer review privilege has a valid and important purpose because we want

our hospitals and healthcare providers to take a critical view of the healthcare services 

offered and performed. Many, many documents are properly shielded from discovery in 

the name of incentivizing health care providers to be and do better. But insulating this 

document from discovery does not serve that purpose – it insulates the hospital as a

business not a provider of healthcare. We would scoff at the idea of allowing a hotel or 

grocery store to protect information related to a slip-and-fall but in every sense, this is 

exactly what the majority opinion does. Protecting slip-and-fall factual information from 

discovery because it occurred within the four walls of a hospital (or even in its parking 

garage) is contrary to the purpose and intent of the peer review privilege when there is no 

patient care or health care professional involved in that slip-and-fall. 
13

The burden to prove the applicability of the peer review privilege was on 

Cornerstone and it simply didn’t meet it.23 In alleviating Cornerstone of that burden, the 

majority does not apply the statute, but instead defers to the circuit court’s findings that

conflate what the document could have been used for with the purpose for which it was 

actually created. That conflation, in turn, will affect future cases because hospitals will 

funnel facts related to every non-routine event into a peer review organization and the 

majority opinion will give it blanket protection for no other reason than that it happened in 

a hospital. Because I find this is a perversion of the purpose of the peer review privilege 

and a distortion of the statutory language effectuating that laudable purpose, I dissent. I 

am authorized to state that Justice Wooton joins in this dissent.

23 See supra n.20. Accord, Syl. Pt. 3, Wheeling Hosp., (“The party seeking the 

protections of the peer review privilege bears the burden of establishing its applicability by 

more than a mere assertion of privilege.”).