H. B. 2044


(By Delegate Warner)
[Introduced February 12, 1997; referred to the
Committee on Government Organization then the Judiciary.]




A BILL to amend and reenact sections one, four, five, six and fourteen, article three, chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the West Virginia medical practice act; requiring certain members of the board of medicine practice primary care medicine; increasing the board members' per diem from one hundred dollars to two hundred dollars; changing the board of medicine quorum requirement and voting majority requirement; manner of investigations; amending the assessment of costs and fees by the board; and providing recovery of fees by persons against whom hearings are conducted in certain instances.

Be it enacted by the Legislature of West Virginia:
That sections one, four, five, six and fourteen, article three, chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-1. Legislative findings.
The Legislature hereby finds and declares that the practice of medicine and surgery and the practice of podiatry is a privilege and not a natural right of individuals. As a matter of public policy, it is necessary to protect the public interest through enactment of this article and to regulate the granting of such privileges and their use.
The Legislature finds that West Virginia continues to enjoy the benefits of dedicated and hard-working medical professionals in a time of some uncertainty in the health care delivery system; that it is more important than ever to have the cooperation and input of actively practicing physicians in the licensing and disciplinary processes; that it is vital to continue to refine the licensing and disciplinary processes in order to assure that those who are demonstrably unsuited to medical practice are not in medical practice; and that it is further highly desirable that disciplinary sanctions not be sought without just cause against physicians and other health care professionals, inasmuch as the investigation and hearing processes are highly disruptive to and have an adverse impact on the practices of any physician subject to those processes, even where the physicians are exonerated, thereby in turn adversely affecting the availability of vital health care services to the citizens of West Virginia.
§30-3-4. Definitions.

As used in this article:
(1) "Board" means the West Virginia board of medicine established in section five of this article. Whenever any other provision of this code refers to the "medical licensing board of West Virginia," such reference shall be construed to mean and refer to the "West Virginia board of medicine" as created and established in this article.
(2) "Medical peer review committee" means a committee of, or appointed by, a state or local professional medical society, or a committee of, or appointed by, a medical staff of a licensed hospital, long-term care facility or other health care facility, or any health care peer review organization as defined in section one, article three-c of this chapter, or any other organization of professionals in this state formed pursuant to state or federal law and authorized to evaluate medical and health care services.
(3) "Practice of medicine and surgery" means the diagnosis or treatment of, or operation or prescription for, any human disease, pain, injury, deformity or other physical or mental condition.
(4) "Practice of podiatry" means the examination, diagnosis, treatment, prevention and care of conditions and functions of the human foot by medical, surgical and other scientific knowledge and methods; and medical and surgical treatment of warts and other dermatological lesions of the hand which similarly occur in the foot. When a podiatrist uses other than local anesthesia, in surgical treatment of the foot, such anesthesia must be administered by, or under the direction of, an anesthesiologist or certified nurse anesthetist authorized under the state of West Virginia to administer anesthesia. A medical evaluation shall be made by a physician of every patient prior to the administration of other than local anesthesia.
(5) "State director of health" means the state director of health or his or her designee, which designee shall act as secretary of the board and shall carry out any and all responsibilities assigned in this article to the secretary of the board.
(6) "Primary care physician" means a generalist physician holding the degree of doctor of medicine or doctor of podiatric medicine who is specifically trained to provide primary care services and who provides definitive care to the undifferentiated patient at the point of first contact and takes continuing responsibility for providing the patient's care; who devotes the majority of his or her practice to providing primary care services to a defined population of patient's medical and health care needs, not limited by problem origin, organ system, gender or diagnosis; and who acts as the advocate for the patient in coordinating the use of the entire health care system to benefit the patient.
§30-3-5. West Virginia board of medicine created; transfer of powers and duties from medical licensing board; appointment and terms of members; vacancies; removal.

There is hereby created a medical licensing board to be known as the "West Virginia board of medicine." The West Virginia board of medicine shall assume, carry on and succeed to all the duties, rights, powers, obligations and liabilities heretofore belonging to or exercised by the medical licensing board of West Virginia. All the rules and regulations, orders, rulings, licenses, certificates, permits and other acts and undertakings of the medical licensing board of West Virginia as heretofore constituted shall continue as those of the West Virginia board of medicine until they expire or are amended, altered or revoked. The board shall be the sole authority for the issuance of licenses to practice medicine and surgery and to practice podiatry and certificates for physician assistants in this state and shall be a regulatory and disciplinary body for the practice of medicine and surgery and the practice of podiatry and for physician assistants in this state.
The board shall consist of fifteen members. One member shall be the state director of health ex officio, with the right to vote as a member of the board. The other fourteen members shall be appointed by the governor, with the advice and consent of the Senate. Eight of the members shall be appointed from among individuals holding the degree of doctor of medicine and of those eight, at least two shall be primary care physicians; and two shall hold the degree of doctor of podiatric medicine. One member shall be an individual certified by the board as a Type A physician assistant. Each of these members must be duly licensed or certified to practice his or her profession in this state on the date of appointment and must have been licensed or certified and actively practicing that profession for at least five years immediately preceding the date of appointment. Three lay members shall be appointed to represent health care consumers. Neither the lay members nor any person of the lay members' immediate families shall be a provider of or be employed by a provider of health care services. The state director of health's term shall continue for the period that he or she holds office as state director of health. Each other member of the board shall be appointed to serve a term of five years: Provided, That the members of the medical licensing board or board of medicine holding appointments on the effective date of this section shall continue to serve as members of the board of medicine until the expiration of their term unless sooner removed. Each term shall begin on the first day of October of the applicable year, and a member may not be appointed to more than two consecutive full terms on the board.
Not more than four physicians, one podiatrist and two lay members appointed by the governor as members of the board shall belong to the same political party. The Type A physician assistant member may not belong to the same political party to which a majority of the lay members belong. A person is not eligible for membership on the board who is a member of any political party executive committee or, with the exception of the state director of health, who holds any public office or public employment under the federal government or under the government of this state or any political subdivision thereof or who is an appointee or employee of the state board of health.
In making appointments to the board, the governor shall, so far as practicable, select the members from different geographical sections of the state. When a vacancy on the board occurs and less than one year remains in the unexpired term, the appointee shall be eligible to serve the remainder of the unexpired term and two consecutive full terms on the board.
No member may be removed from office except for official misconduct, incompetence, neglect of duty or gross immorality: Provided, That the expiration or revocation of the professional license or certification of a member of the board shall be cause for removal.
§30-3-6. Conduct of business of West Virginia board of medicine; meetings; officers; compensation; expenses; quorum.
Every two years the board shall elect from among its members a president and vice president. Regular meetings shall be held as scheduled by the rules and regulations of the board. Special meetings of the board may be called by the joint action of the president and vice president or by any three members of the board on seven days' prior written notice by mail or, in case of emergency, on two days' notice by telephone. With the exception of the state director of health, members of the board shall receive one two hundred dollars for each day actually spent in attending the sessions of the board or its committees. A board member shall be reimbursed for all reasonable and necessary expenses actually incurred when a meeting is held in a location that is removed from the member's place of residence.
A majority of the membership Ten members of the board constitutes a quorum for the transaction of business, and business is transacted by a majority vote of a quorum, except for disciplinary actions which shall require the affirmative vote of not less than five seven members or a two-thirds majority vote of those present, whichever is greater.
Meetings of the board shall be held in public session, except that the board may hold closed sessions to prepare, approve, grade or administer examinations. Disciplinary proceedings, prior to a finding of probable cause as provided in subsection (o), section fourteen of this article, shall be held in closed sessions, unless the party subject to discipline requests that the hearing be held in public session.
§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. The mere existence of such judgments or settlements may not be considered as evidence of professional incompetence, and the underlying facts of each judgment or claim must be examined and considered by the board without regard to the action taken or decisions made in suits by courts or in claims by the physician or podiatrist, or physician's or podiatrist's insurance carrier or attorney.
(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 the 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 and such comments must be considered by the board.
After the completion of the hospital's formal disciplinary procedure and after any resulting legal action, the chief executive officer of such the 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 the 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 the 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 the 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 the alleged 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 the 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 the 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. Prior to initiating any investigation, the board or its staff must ascertain from the person reporting such facts or otherwise that: (1) The facts are reliable; and (2) that the full circumstances of the relationship between the person making the report and the physician or podiatrist subject of the report are disclosed, including, but not limited to, any facts concerning economic or professional competition between the person making the report and the physician or podiatrist subject to the report.
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 any provision 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 or record 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 The 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 the physician or podiatrist discloses in writing such the interest to the patient. Such The 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 a clinical 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 the 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: Provided, That the board's monitoring of the appropriate usage of prescription drugs and controlled substances to prevent their abuse and diversion shall be carefully balanced with the express societal need that the board not exert a chilling influence on the appropriate prescription of analgesics for acute or chronic pain, nor on the appropriate usage of psychotropic mediation. In each case, the careful use of publicly developed, scientifically based and appropriately updated clinical practice guidelines should be the basis for judgments made by the board. Where the guidelines cannot be developed, due to areas of legitimate medical uncertainty or divergence of opinions, the board should not seek to discipline by its opinion over the legitimate opinions of others.
(14) Performing any procedure or prescribing any therapy that, 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 the responsibilities knows or has reason to know that such the 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 subdivision shall 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 such referral. 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 the failure or refusal is prima facie evidence of his inability to practice medicine and surgery or podiatry competently and in compliance 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 the 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 the actual costs of the hearing, consisting of the board members' per diem and court reporter's fees, and assess a civil fine of not less more 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 practice constitutes 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 the 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.
(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 of confidential 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 the 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 the charges shall be open to the public who shall be entitled to all reports, records, and nondeliberative materials introduced at such the hearing, including the record of the final action taken: Provided, That any medical records, which were introduced at such the hearing and which pertain to a person who has not expressly waived his right to the confidentiality of such the records, shall not be open to the public nor is the public entitled to such the records.
(p) If the board finds that a complainant or person making a report as provided by subsection (a) of this section has acted in bad faith or maliciously or exclusively for a financial motive or financial gain in bringing a complaint or making a report subsequently found to be frivolous or without a basis in fact or without a reasonable belief at the time of making the complaint or report that the complaint or report was based in fact, or if that person or the person making the report discovers after making the report that the complaint or report is without a basis in fact and that person fails to report this subsequent information or belief to the board in a reasonably timely fashion, the board may assess against the complainant or person making the report the actual costs of the hearing, consisting of the board members' per diem and court reporter's fees, and further assess in favor of the physician or podiatrist who is the subject of the complaint or report and against the complainant or person making the report the physician's or podiatrist's actual costs in the defense of the complaint or report, including actual attorney's fees. If a court of competent jurisdiction finds that the board has acted in bad faith or maliciously or without probable cause in initiating a hearing against a physician or podiatrist, the court shall assess in favor of the physician or podiatrist who is the subject of the hearing and against the board, but not the members thereof individually, the physician's or podiatrists actual costs in the defense of the complaint or report, including actual attorney's fees.




NOTE: The purpose of this bill is to amend the West Virginia medical practice act; require certain members of the board of medicine practice primary care medicine; increase the board members' per diem from one hundred dollars to two hundred dollars; change the board of medicine quorum requirement and voting majority requirement; change the manner of investigations; amend the assessment of costs and fees by the board; and provide recovery of fees by persons against whom hearings are conducted in certain instances.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.