H. B. 2157
(By Delegate Love)
[Introduced February 17, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section fourteen, article three,
chapter thirty of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to permitting
application for reinstatement to be made before the
expiration of a period of revocation.
Be it enacted by the Legislature of West Virginia:
That section fourteen, article three, chapter thirty of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-14. Professional discipline of physicians and
podiatrists; reporting of information to board
pertaining to professional malpractice and
professional incompetence required; penalties;
grounds for license denial and discipline of
physicians and podiatrists; investigations;
physical and mental examinations; hearings;sanctions; summary sanctions; reporting by the
board; reapplication; civil and criminal
immunity; voluntary limitation of license;
probable cause determinations.
(a) The board may independently initiate disciplinary
proceedings as well as initiate disciplinary proceedings based on
information received from medical peer review committees,
physicians, podiatrists, hospital administrators, professional
societies and others.
The board may initiate investigations as to professional
incompetence or other reasons for which a licensed physician or
podiatrist may be adjudged unqualified if the board receives
notice that, within the most recent five-year period, five or
more judgments or settlements in excess of fifty thousand dollars
each arising from medical professional liability have been
rendered or made against such physician or podiatrist.
(b) Upon request of the board, any medical peer review
committee in this state shall report any information that may
relate to the practice or performance of any physician or
podiatrist known to that medical peer review committee. Copies
of such requests for information from a medical peer review
committee may be provided to the subject physician or podiatrist
if, in the discretion of the board, the provision of such copies
will not jeopardize the board's investigation. In the event that
copies are so provided, the subject physician or podiatrist is
allowed fifteen days to comment on the requested information andsuch comments must be considered by the board.
After the completion of a hospital's formal disciplinary
procedure and after any resulting legal action, the chief
executive officer of such hospital shall report in writing to the
board within sixty days the name of any member of the medical
staff or any other physician or podiatrist practicing in the
hospital whose hospital privileges have been revoked, restricted,
reduced or terminated for any cause, including resignation,
together with all pertinent information relating to such action.
The chief executive officer shall also report any other formal
disciplinary action taken against any physician or podiatrist by
the hospital upon the recommendation of its medical staff
relating to professional ethics, medical incompetence, medical
malpractice, moral turpitude or drug or alcohol abuse.
Temporary suspension for failure to maintain records on a timely
basis or failure to attend staff or section meetings need not be
reported.
Any professional society in this state comprised primarily
of physicians or podiatrists which takes formal disciplinary
action against a member relating to professional ethics,
professional incompetence, professional malpractice, moral
turpitude or drug or alcohol abuse, shall report in writing to
the board within sixty days of a final decision the name of such
member, together with all pertinent information relating to such
action.
Every person, partnership, corporation, association,insurance company, professional society or other organization
providing professional liability insurance to a physician or
podiatrist in this state shall submit to the board the following
information within thirty days from any judgment, dismissal or
settlement of a civil action or of any claim involving the
insured: The date of any judgment, dismissal or settlement;
whether any appeal has been taken on the judgment, and, if so, by
which party; the amount of any settlement or judgment against the
insured; and such other information as the board may require.
Within thirty days after a person known to be a physician or
podiatrist licensed or otherwise lawfully practicing medicine and
surgery or podiatry in this state or applying to be so licensed
is convicted of a felony under the laws of this state, or of any
crime under the laws of this state involving alcohol or drugs in
any way, including any controlled substance under state or
federal law, the clerk of the court of record in which the
conviction was entered shall forward to the board a certified
true and correct abstract of record of the convicting court.
The abstract shall include the name and address of such physician
or podiatrist or applicant, the nature of the offense committed
and the final judgment and sentence of the court.
Upon a determination of the board that there is probable
cause to believe that any person, partnership, corporation,
association, insurance company, professional society or other
organization has failed or refused to make a report required by
this subsection, the board shall provide written notice to thealleged violator stating the nature of the alleged violation and
the time and place at which the alleged violator shall appear to
show good cause why a civil penalty should not be imposed. The
hearing shall be conducted in accordance with the provisions of
article five, chapter twenty-nine-a of this code. After
reviewing the record of such hearing, if the board determines
that a violation of this subsection has occurred, the board shall
assess a civil penalty of not less than one thousand dollars nor
more than ten thousand dollars against such violator. Anyone so
assessed shall be notified of the assessment in writing and the
notice shall specify the reasons for the assessment. If the
violator fails to pay the amount of the assessment to the board
within thirty days, the attorney general may institute a civil
action in the circuit court of Kanawha County to recover the
amount of the assessment. In any such civil action, the court's
review of the board's action shall be conducted in accordance
with the provisions of section four, article five, chapter
twenty-nine-a of this code.
Any person may report to the board relevant facts about the
conduct of any physician or podiatrist in this state which in the
opinion of such person amounts to professional malpractice or
professional incompetence.
The board shall provide forms for filing reports pursuant to
this section. Reports submitted in other forms shall be accepted
by the board.
The filing of a report with the board pursuant to anyprovision of this article, any investigation by the board or any
disposition of a case by the board does not preclude any action
by a hospital, other health care facility or professional society
comprised primarily of physicians or podiatrists to suspend,
restrict or revoke the privileges or membership of such physician
or podiatrist.
(c) The board may deny an application for license or other
authorization to practice medicine and surgery or podiatry in
this state and may discipline a physician or podiatrist licensed
or otherwise lawfully practicing in this state who, after a
hearing, has been adjudged by the board as unqualified due to any
of the following reasons:
(1) Attempting to obtain, obtaining, renewing or attempting
to renew a license to practice medicine and surgery or podiatry
by bribery, fraudulent misrepresentation or through known error
of the board.
(2) Being found guilty of a crime in any jurisdiction, which
offense is a felony, involves moral turpitude or directly relates
to the practice of medicine. Any plea of nolo contendere is a
conviction for the purposes of this subdivision.
(3) False or deceptive advertising.
(4) Aiding, assisting, procuring or advising any
unauthorized person to practice medicine and surgery or podiatry
contrary to law.
(5) Making or filing a report that the person knows to be
false; intentionally or negligently failing to file a report orrecord required by state or federal law; willfully impeding or
obstructing the filing of a report or record required by state or
federal law; or inducing another person to do any of the
foregoing. Such reports and records as are herein covered mean
only those that are signed in the capacity as a licensed
physician or podiatrist.
(6) Requesting, receiving or paying directly or indirectly
a payment, rebate, refund, commission, credit or other form of
profit or valuable consideration for the referral of patients to
any person or entity in connection with providing medical or
other health care services or clinical laboratory services,
supplies of any kind, drugs, medication or any other medical
goods, services or devices used in connection with medical or
other health care services.
(7) Unprofessional conduct by any physician or podiatrist in
referring a patient to any clinical laboratory or pharmacy in
which the physician or podiatrist has a proprietary interest
unless such physician or podiatrist discloses in writing such
interest to the patient. Such written disclosure shall indicate
that the patient may choose any clinical laboratory for purposes
of having any laboratory work or assignment performed or any
pharmacy for purposes of purchasing any prescribed drug or any
other medical goods or devices used in connection with medical or
other health care services.
As used herein, "proprietary interest" does not include an
ownership interest in a building in which space is leased to aclinical laboratory or pharmacy at the prevailing rate under a
lease arrangement that is not conditional upon the income or
gross receipts of the clinical laboratory or pharmacy.
(8) Exercising influence within a patient-physician
relationship for the purpose of engaging a patient in sexual
activity.
(9) Making a deceptive, untrue or fraudulent representation
in the practice of medicine and surgery or podiatry.
(10) Soliciting patients, either personally or by an agent,
through the use of fraud, intimidation or undue influence.
(11) Failing to keep written records justifying the course
of treatment of a patient, such records to include, but not be
limited to, patient histories, examination and test results and
treatment rendered, if any.
(12) Exercising influence on a patient in such a way as to
exploit the patient for financial gain of the physician or
podiatrist or of a third party. Any such influence includes, but
is not limited to, the promotion or sale of services, goods,
appliances or drugs.
(13) Prescribing, dispensing, administering, mixing or
otherwise preparing a prescription drug, including any controlled
substance under state or federal law, other than in good faith
and in a therapeutic manner in accordance with accepted medical
standards and in the course of the physician's or podiatrist's
professional practice.
(14) Performing any procedure or prescribing any therapythat, by the accepted standards of medical practice in the
community, would constitute experimentation on human subjects
without first obtaining full, informed and written consent.
(15) Practicing or offering to practice beyond the scope
permitted by law or accepting and performing professional
responsibilities that the person knows or has reason to know he
is not competent to perform.
(16) Delegating professional responsibilities to a person
when the physician or podiatrist delegating such responsibilities
knows or has reason to know that such person is not qualified by
training, experience or licensure to perform them.
(17) Violating any provision of this article or a rule or
order of the board, or failing to comply with a subpoena or
subpoena duces tecum issued by the board.
(18) Conspiring with any other person to commit an act or
committing an act that would tend to coerce, intimidate or
preclude another physician or podiatrist from lawfully
advertising his services.
(19) Gross negligence in the use and control of prescription
forms.
(20) Professional incompetence.
(21) The inability to practice medicine and surgery or
podiatry with reasonable skill and safety due to physical or
mental disability, including deterioration through the aging
process or loss of motor skill or abuse of drugs or alcohol. A
physician or podiatrist adversely affected under this subdivisionshall be afforded an opportunity at reasonable intervals to
demonstrate that he can resume the competent practice of medicine
and surgery or podiatry with reasonable skill and safety to
patients. In any proceeding under this subdivision, neither the
record of proceedings nor any orders entered by the board shall
be used against the physician or podiatrist in any other
proceeding.
(d) The board shall deny any application for a license or
other authorization to practice medicine and surgery or podiatry
in this state to any applicant who, and shall revoke the license
of any physician or podiatrist licensed or otherwise lawfully
practicing within this state who, is found guilty by any court of
competent jurisdiction of any felony involving prescribing,
selling, administering, dispensing, mixing or otherwise preparing
any prescription drug, including any controlled substance under
state or federal law, for other than generally accepted
therapeutic purposes. Presentation to the board of a certified
copy of the guilty verdict or plea rendered in the court is
sufficient proof thereof for the purposes of this article. A
plea of nolo contendere has the same effect as a verdict or plea
of guilt.
(e) The board may refer any cases coming to its attention to
an appropriate committee of an appropriate professional
organization for investigation and report. Any such report shall
contain recommendations for any necessary disciplinary measures
and shall be filed with the board within ninety days of any suchreferral. The recommendations shall be considered by the board
and the case may be further investigated by the board. The board
after full investigation shall take whatever action it deems
appropriate, as provided herein.
(f) The investigating body, as provided for in subsection
(e) of this section, may request and the board under any
circumstances may require a physician or podiatrist or person
applying for licensure or other authorization to practice
medicine and surgery or podiatry in this state to submit to a
physical or mental examination by a physician or physicians
approved by the board. A physician or podiatrist submitting to
any such examination has the right, at his expense, to designate
another physician to be present at the examination and make an
independent report to the investigating body or the board. The
expense of the examination shall be paid by the board. Any
individual who applies for or accepts the privilege of practicing
medicine and surgery or podiatry in this state is deemed to have
given his consent to submit to all such examinations when
requested to do so in writing by the board and to have waived all
objections to the admissibility of the testimony or examination
report of any examining physician on the ground that the
testimony or report is privileged communication. If a person
fails or refuses to submit to any such examination under
circumstances which the board finds are not beyond his control,
such failure or refusal is prima facie evidence of his inability
to practice medicine and surgery or podiatry competently and incompliance with the standards of acceptable and prevailing
medical practice.
(g) In addition to any other investigators it employs, the
board may appoint one or more licensed physicians to act for it
in investigating the conduct or competence of a physician.
(h) In every disciplinary or licensure denial action, the
board shall furnish the physician or podiatrist or applicant with
written notice setting out with particularity the reasons for its
action. Disciplinary and licensure denial hearings shall be
conducted in accordance with the provisions of article five,
chapter twenty-nine-a of this code. However, hearings shall be
heard upon sworn testimony and the rules of evidence for trial
courts of record in this state shall apply to all such hearings.
A transcript of all hearings under this section shall be made,
and the respondent may obtain a copy of the transcript at his
expense. The physician or podiatrist has the right to defend
against any such charge by the introduction of evidence, the
right to be represented by counsel, the right to present and
cross-examine witnesses and the right to have subpoenas and
subpoenas duces tecum issued on his behalf for the attendance of
witnesses and the production of documents. The board shall make
all its final actions public. The order shall contain the terms
of all action taken by the board.
(i) Whenever it finds any person unqualified because of any
of the grounds set forth in subsection (c) of this section, the
board may enter an order imposing one or more of the following:
(1) Deny his application for a license or other
authorization to practice medicine and surgery or podiatry;
(2) Administer a public reprimand;
(3) Suspend, limit or restrict his license or other
authorization to practice medicine and surgery or podiatry for
not more than five years, including limiting the practice of such
person to, or by the exclusion of, one or more areas of practice,
including limitations on practice privileges;
(4) Revoke his license or other authorization to practice
medicine and surgery or podiatry or to prescribe or dispense
controlled substances;
(5) Require him to submit to care, counseling or treatment
designated by the board as a condition for initial or continued
licensure or renewal of licensure or other authorization to
practice medicine and surgery or podiatry;
(6) Require him to participate in a program of education
prescribed by the board;
(7) Require him to practice under the direction of a
physician or podiatrist designated by the board for a specified
period of time; and
(8) Assess a civil fine of not less than one thousand
dollars nor more than ten thousand dollars.
(j) Notwithstanding the provisions of section eight, article
one, chapter thirty of this code, if the board determines the
evidence in its possession indicates that a physician's or
podiatrist's continuation in practice or unrestricted practiceconstitutes an immediate danger to the public, the board may take
any of the actions provided for in subsection (i) of this section
on a temporary basis and without a hearing, if institution of
proceedings for a hearing before the board are initiated
simultaneously with the temporary action and begin within fifteen
days of such action. The board shall render its decision within
five days of the conclusion of a hearing under this subsection.
(k) Any person against whom disciplinary action is taken
pursuant to the provisions of this article has the right to
judicial review as provided in articles five and six, chapter
twenty-nine-a of this code. Except with regard to an order of
temporary suspension of a license for six months or less, a
person shall not practice medicine and surgery or podiatry or
deliver health care services in violation of any disciplinary
order revoking or limiting his license while any such review is
pending. Within sixty days, the board shall report its final
action regarding restriction, limitation, suspension or
revocation of the license of a physician or podiatrist,
limitation on practice privileges or other disciplinary action
against any physician or podiatrist to all appropriate state
agencies, appropriate licensed health facilities and hospitals,
insurance companies or associations writing medical malpractice
insurance in this state, the American Medical Association, the
American Podiatry Association, professional societies of
physicians or podiatrists in the state and any entity responsible
for the fiscal administration of medicare and medicaid.
(l) Any person against whom disciplinary action has been
taken under the provisions of this article shall at reasonable
intervals be afforded an opportunity to demonstrate that he can
resume the practice of medicine and surgery or podiatry on a
general or limited basis. At the conclusion of a suspension,
limitation or restriction period, the physician or podiatrist has
the right to resume practice pursuant to the orders of the board:
Provided,
That for a revocation pursuant to subsection (d) of
this section a reapplication shall not be accepted for a period
of at least five years may be made before the expiration of five
years but reinstatement shall not be allowed during the five year
period.
(m) Any entity, organization or person, including the board,
any member of the board, its agents or employees and any entity
or organization or its members referred to in this article, any
insurer, its agents or employees, a medical peer review committee
and a hospital governing board, its members or any committee
appointed by it acting without malice and without gross
negligence in making any report or other information available to
the board or a medical peer review committee pursuant to law and
any person acting without malice and without gross negligence who
assists in the organization, investigation or preparation of any
such report or information or assists the board or a hospital
governing body or any such committee in carrying out any of its
duties or functions provided by law, is immune from civil or
criminal liability, except that the unlawful disclosure ofconfidential information possessed by the board is a misdemeanor
as provided for in this article.
(n) A physician or podiatrist may request in writing to the
board a limitation on or the surrendering of his license to
practice medicine and surgery or podiatry or other appropriate
sanction as provided herein. The board may grant such request
and, if it considers it appropriate, may waive the commencement
or continuation of other proceedings under this section. A
physician or podiatrist whose license is limited or surrendered
or against whom other action is taken under this subsection has
a right at reasonable intervals to petition for removal of any
restriction or limitation on or for reinstatement of his license
to practice medicine and surgery or podiatry.
(o) In every case considered by the board under this article
regarding discipline or licensure, whether initiated by the board
or upon complaint or information from any person or organization,
the board shall make a preliminary determination as to whether
probable cause exists to substantiate charges of disqualification
due to any reason set forth in subsection (c) of this section.
If such probable cause is found to exist, all proceedings on such
charges shall be open to the public who shall be entitled to all
reports, records, and nondeliberative materials introduced at
such hearing, including the record of the final action taken:
Provided,
That any medical records, which were introduced at such
hearing and which pertain to a person who has not expressly
waived his right to the confidentiality of such records, shallnot be open to the public nor is the public entitled to such
records.
NOTE: The purpose of this bill is to permit application for
reinstatement before expiration of a period of revocation.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.