ENROLLED
H. B. 2082
(By Mr. Speaker, Mr. Kiss)
[Passed March 12, 1999; in effect ninety days from passage.]
AN ACT to amend and reenact sections two, ten, thirteen, fourteen
and fifteen, article three, chapter thirty of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended; and to further amend said article three by adding
thereto a new section, designated section eighteen, all
relating to the West Virginia medical practice act;
expanding the purposes of the article creating the board of
medicine; authorizing the board to enter into reciprocity
agreements with other jurisdictions; providing an exemption
for eligible graduates of certain foreign medical schools
from meeting additional requirements for licensure; defining
the term "telemedicine"; requiring licensure for persons
engaged in the practice of telemedicine, and providing
exceptions; expanding the basis for board investigations; eliminating certain mandatory reporting; providing
additional due process protections for physicians subject to
disciplinary proceedings; stating the evidentiary standard
for board action; permitting assessment of cost against
complainant in certain cases; providing for remand in cases
of after-discovered evidence; mediation; authorizing the
formation of medical corporations with licensed osteopathic
physicians; and continuing the board pursuant to the West
Virginia sunset law.
Be it enacted by the Legislature of West Virginia:
That sections two, ten, thirteen, fourteen and fifteen,
article three, chapter thirty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted; and that said article be further amended by adding
thereto a new section, designated section eighteen, all to read
as follows:
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-2. Purpose.
The purpose of this article is to provide for the licensure
and professional discipline of physicians and podiatrists and for
the certification and discipline of physician assistants and to
provide a professional environment that encourages the delivery
of quality medical services within this state.
§30-3-10. Licenses to practice medicine and surgery or podiatry.
(a) The board shall issue a license to practice medicine and
surgery or to practice podiatry to any individual who is
qualified to do so in accordance with the provisions of this
article.
(b) For an individual to be licensed to practice medicine
and surgery in this state, he or she must meet the following
requirements:
(1) He or she shall submit an application to the board on a
form provided by the board and remit to the board a reasonable
examination fee, the amount of the reasonable fee to be set by
the board. The application must, as a minimum, require a sworn
and notarized statement that the applicant is of good moral
character and that he or she is physically and mentally capable
of engaging in the practice of medicine and surgery;
(2) He or she must provide evidence of graduation and
receipt of the degree of doctor of medicine or its equivalent
from a school of medicine, which is approved by the liaison
committee on medical education or by the board;
(3) He or she must submit evidence to the board of having
successfully completed a minimum of one year of graduate clinical
training in a program approved by the accreditation council for graduate medical education; and
(4) He or she must pass an examination approved by the
board, which examination can be related to a national standard.
The examination shall be in the English language and be designed
to ascertain an applicant's fitness to practice medicine and
surgery. The board shall before the date of examination
determine what will constitute a passing score: Provided, That
the board, or a majority of them, may accept in lieu of an
examination of applicants, the certificate of the national board
of medical examiners: Provided, however, That the board is
authorized to enter into reciprocity agreements with medical
licensing authorities in other states, the District of Columbia,
Canada or the Commonwealth of Puerto Rico, and, for
an applicant
who: (i) Is currently
fully licensed, excluding any temporary,
conditional or restricted license or permit, under the laws of
another state or jurisdiction having reciprocity;(ii) has been
engaged on a full-time professional basis in the practice of
medicine within that state or jurisdiction for a period of at
least five years; and (iii) is not the subject of any pending
disciplinary action by a medical licensing board and has not been
the subject of professional discipline by a medical licensing
board in any jurisdiction, the board may permit licensure in this state by reciprocity.
If an applicant fails to pass the
examination on two occasions, he or she shall successfully
complete a course of study or training, as approved by the board,
designed to improve his or her ability to engage in the practice
of medicine and surgery, before being eligible for reexamination.
(c) In addition to the requirements of subsection (b)
hereof, any individual who has received the degree of doctor of
medicine or its equivalent from a school of medicine located
outside of the United States, the Commonwealth of Puerto Rico and
Canada, to be licensed to practice medicine in this state, must
also meet the following additional requirements and limitations:
(1) He or she must be able to demonstrate to the
satisfaction of the board his or her ability to communicate in
the English language;
(2) Before taking a licensure examination, he or she must
have fulfilled the requirements of the educational commission for
foreign medical graduates for certification, or he or she must
provide evidence of receipt of a passing score on the examination
of the educational commission for foreign medical graduates:
Provided, That an applicant who: (i) Is currently
fully licensed,
excluding any temporary, conditional or restricted license or
permit, under the laws of another state, the District of Columbia, Canada or the Commonwealth of Puerto Rico; (ii) has
been engaged on a full-time professional basis in the practice of
medicine within the state or jurisdiction where the applicant is
fully licensed for a period of at least five years; and (iii) is
not the subject of any pending disciplinary action by a medical
licensing board and has not been the subject of professional
discipline by a medical licensing board in any jurisdiction, is
not required to have a certificate from the educational
commission for foreign medical graduates;
(3) He or she must submit evidence to the board of either:
(i) Having successfully completed a minimum of two years of
graduate clinical training in a program approved by the
accreditation council for graduate medical education; or (ii)
current certification by a member board of the American Board of
Medical Specialties.
(d) For an individual to be licensed to practice podiatry in
this state, he or she must meet the following requirements:
(1) He or she shall submit an application to the board on a
form provided by the board and remit to the board a reasonable
examination fee, the amount of the reasonable fee to be set by
the board. The application must, as a minimum, require a sworn
and notarized statement that the applicant is of good moral character and that he or she is physically and mentally capable
of engaging in the practice of podiatric medicine;
(2) He or she must provide evidence of graduation and
receipt of the degree of doctor of podiatric medicine and its
equivalent from a school of podiatric medicine which is approved
by the council of podiatry education or by the board;
(3) He or she must pass an examination approved by the
board, which examination can be related to a national standard.
The examination shall be in the English language and be designed
to ascertain an applicant's fitness to practice podiatric
medicine. The board shall before the date of examination
determine what will constitute a passing score. If an applicant
fails to pass the examination on two occasions, he or she shall
successfully complete a course of study or training, as approved
by the board, designed to improve his or her ability to engage in
the practice of podiatric medicine, before being eligible for
reexamination; and
(4) He or she must submit evidence to the board of having
successfully completed a minimum of one year of graduate clinical
training in a program approved by the council on podiatric
medical education, or the colleges of podiatric medicine. The
board may consider a minimum of two years of graduate podiatric clinical training in the U. S. armed forces or three years
private podiatric clinical experience in lieu of this
requirement.
(e) All licenses to practice medicine and surgery granted
prior to the first day of July, one thousand nine hundred
ninety-one, and valid on that date, shall continue in full effect
for the term and under the
conditions provided by law at the time
of the granting of the license: Provided, That the provisions of
subsection (d) of this section shall not apply to any person
legally entitled to practice chiropody or podiatry in this state
prior to the eleventh day of June, one thousand nine hundred
sixty-five: Provided, however, That all persons licensed to
practice chiropody prior to the eleventh day of June, one
thousand nine hundred sixty-five, shall be permitted to use the
term "chiropody-podiatry" and shall have the rights, privileges
and responsibilities of a podiatrist set out in this article.
§30-3-13. Unauthorized practice of medicine and surgery or
podiatry; criminal penalties; limitations.
(a) A person shall not engage in the practice of medicine
and surgery or podiatry, hold himself or herself out as qualified
to practice medicine and surgery or podiatry or use any title,
word or abbreviation to indicate to or induce others to believe that he or she is licensed to practice medicine and surgery or
podiatry in this state unless he or she is actually licensed
under the provisions of this article. A person engaged in the
practice of telemedicine is considered to be engaged in the
practice of medicine within this state and is subject to the
licensure requirements of this article. As used in this section,
the "practice of telemedicine" means
the use of electronic
information and communication technologies to provide health care
when distance separates participants and includes one or both of
the following: (1) The diagnosis of a patient within this state
by a physician located outside this state as a result of the
transmission of individual patient data, specimens or other
material by electronic or other means from within this state to
the physician or his or her agent; or (2) the rendering of
treatment to a patient within this state by a physician located
outside this state as a result of transmission of individual
patient data, specimens or other material by electronic or other
means from within this state to the physician or his or her
agent.
No person may practice as a physician's assistant, hold
himself or herself out as qualified to practice as a physician's
assistant, or use any title, word or abbreviation to indicate to
or induce others to believe that he or she is licensed to practice as a physician's assistant in this state unless he or
she is actually licensed under the provisions of this article.
Any person who violates the provisions of this subsection is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than ten thousand dollars, or imprisoned in the
county jail not more than twelve months, or both fined and
imprisoned.
(b) The provisions of this section do not apply to:
(1) Persons who are duly licensed health care providers
under other pertinent provisions of this code and are acting
within the scope of their license;
(2) Physicians or podiatrists licensed in other states or
foreign countries who are acting in a consulting capacity with
physicians or podiatrists duly licensed in this state, for a
period of not more than three months: Provided, That this
exemption is applicable on a one-time only basis;
(3) An individual physician or podiatrist, or physician or
podiatrist, or physician or podiatrist groups, or physicians or
podiatrists at a tertiary care or university hospital outside
this state and engaged
in the practice of telemedicine who
consult or render second opinions concerning diagnosis or
treatment of patients within this state: (i) In an emergency or without compensation or expectation of compensation; or (ii) on
an irregular or infrequent basis which occurs less than once a
month or less than twelve times in a calendar year;
(4) Persons holding licenses granted by another state or
foreign country who are commissioned medical officers of, a
member of or employed by the armed forces of the United States,
the United States public health service, the veterans'
administration of the United States, any federal institution or
any other federal agency while engaged in the performance of
their official duties;
(5) Any person providing first-aid care in emergency
situations;
(6) The practice of the religious tenets of any recognized
church in the administration of assistance to the sick or
suffering by mental or spiritual means;
(7) Visiting medical faculty engaged in teaching or research
duties at a medical school or institution recognized by the board
and who are in this state for periods of not more than six
months: Provided,
That the individuals do not otherwise engage
in the practice of medicine or podiatry outside of the auspices
of their sponsoring institutions;
(8) Persons enrolled in a school of medicine approved by the liaison committee on medical education or by the board, or
persons enrolled in a school of podiatric medicine approved by
the council of podiatry education or by the board, or persons
enrolled in an undergraduate or graduate physician assistant
program approved by the committee on allied health education and
accreditation or its successor on behalf of the American medical
association or by the board, or persons engaged in graduate
medical training in a program approved by the liaison committee
on graduate medical education or the board, or engaged in
graduate podiatric training in a program approved by the council
on podiatric medical education or by the board, who are
performing functions in the course of training including with
respect to functions performed by medical residents or medical
students under the supervision of a licensed physician, ordering
and obtaining laboratory tests, medications and other patient
orders by computer or other electronic means and no other
provision of this code to the contrary may be construed to
prohibit or limit medical residents' or medical students' use of
computers or other electronic devices in this manner;
(9) The fitting, recommending or sale of corrective shoes,
arch supports or similar mechanical appliances in commercial
establishments; and
(10) The fitting or sale of a prosthetic or orthotic device
not involving any surgical procedure, in accord with a
prescription of a physician, osteopathic physician, or where
chiropractors or podiatrists are authorized by law to prescribe
such a prosthetic or orthotic device, in accord with a
prescription of a chiropractor or podiatrist, by a practitioner
or registered technician certified by the American board for
certification of orthotics and prosthetics in either prosthetics
or orthotics: Provided,
That the sale of any prosthetic or
orthotic device by a partnership, proprietorship or corporation
which employs such a practitioner or registered technician who
fitted the prosthetic or orthotic device shall not constitute the
unauthorized practice of medicine: Provided, however,
That the
practitioner or registered technician may, without a
prescription, make recommendation solely to a physician or
osteopathic physician or to a chiropractor or podiatrist
otherwise authorized by law to prescribe a particular prosthetic
or orthotic device, regarding any prosthetic or orthotic device
to be used for a patient upon a request for such recommendation.
(c) This section shall not be construed as being in any way
a limitation upon the services of a physician's assistant
performed in accordance with the provisions of this article.
(d) Persons covered under this article may be permitted to
utilize electronic signature or unique electronic identification
to effectively sign materials, transmitted by computer or other
electronic means, upon which signature is required for the
purpose of authorized medical practice. Such signatures are
deemed legal and valid for purposes related to the provision of
medical services. This subsection does not confer any new
practice privilege or right on any persons covered under this
article.
§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 based upon criminal
convictions; complaints by citizens, pharmacists, physicians,
podiatrists, peer review committees, hospital administrators,
professional societies or others; or if there are five judgments
or settlements within the most recent five-year period in excess
of fifty thousand dollars each. The board may not consider any
judgments or settlements as conclusive evidence of professional
incompetence or conclusive lack of qualification to practice.
(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 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 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 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.
Voluntary cessation of hospital privileges for reasons unrelated
to professional competence or ethics 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 the member, together with all pertinent information relating to the
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, or settlement
of a civil or medical malpractice action excepting product
liability actions: The date of any judgment 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 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 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 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 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. Notwithstanding any other provision
of this article to the contrary, when there are conflicting views
by recognized experts as to whether any alleged conduct breaches
an applicable standard of care, the evidence must be clear and
convincing before the board may find that the physician has
demonstrated a lack of professional competence to practice with
a reasonable degree of skill and safety for patients.
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 that 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 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 the 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. 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 the physician or podiatrist discloses in writing such
interest to the patient. 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, 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 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 a physician who discharges
his or her professional obligation to relieve the pain and
suffering and promote the dignity and autonomy of dying patients
in his or her care, and in so doing, exceeds the average dosage
of a pain relieving controlled substance, in Schedule II and III
of the Uniform Control Substance Act, does not violate this
article;
(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
or she is not competent to perform;
(16) Delegating professional responsibilities to a person
when the physician or podiatrist delegating the responsibilities knows or has reason to know that 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 or her 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 or she 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. Except for complaints
related to obtaining initial licensure to practice medicine and
surgery or podiatry in this state by bribery or fraudulent
misrepresentation, any complaint filed more than two years after the complainant knew, or in the exercise of reasonable diligence
should have known, of the existence of grounds for the complaint,
shall be dismissed: Provided, That in cases of conduct alleged
to be part of a pattern of similar misconduct or professional
incapacity that, if continued, would pose risks of a serious or
substantial nature to the physician or podiatrist's current
patients, the investigating body may conduct a limited
investigation related to the physician or podiatrist's current
capacity and qualification to practice, and may recommend
conditions, restrictions or limitations on the physician or
podiatrist's license to practice that it considers necessary for
the protection of the public. Any report shall contain
recommendations for any necessary disciplinary measures and shall
be filed with the board within ninety days of any 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 or her 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 or her consent to submit to all
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 or
her control, failure or refusal is prima facie evidence of his or
her 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 hearings. A
transcript of all hearings under this section shall be made, and
the respondent may obtain a copy of the transcript at his or her
expense. The physician or podiatrist has the right to defend
against any 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 or her 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) In disciplinary actions in which probable cause has been
found by the board, the board shall
, within twenty days of the
date of service of the written notice of charges or sixty days prior to the date of the scheduled hearing, whichever is sooner,
provide the respondent with the complete identity, address, and
telephone number of any person known to the board with knowledge
about the facts of any of the charges; provide a copy of any
statements in the possession of or under the control of the
board; provide a list of proposed witnesses with addresses and
telephone numbers, with a brief summary of his or her anticipated
testimony; provide disclosure of any trial expert pursuant to the
requirements of Rule 26(b)(4) of the West Virginia Rules of Civil
Procedure; provide inspection and copying of the results of any
reports of physical and mental examinations or scientific tests
or experiments; and provide a list and copy of any proposed
exhibit to be used at the hearing: Provided, That the board
shall not be required to furnish or produce any materials which
contain opinion work product information or would be violative of
the attorney-client privilege. Within twenty days of the date of
service of the written notice of charges
, the board shall be
required to disclose any exculpatory evidence with a continuing
duty to do so throughout the disciplinary process. Within thirty
days of receipt of the board's mandatory discovery, the
respondent shall provide the board with the complete identity,
address, and telephone number of any person known to the respondent with knowledge about the facts of any of the charges;
provide a list of proposed witnesses with addresses and telephone
numbers, to be called at hearing, with a brief summary of his or
her anticipated testimony; provide disclosure of any trial expert
pursuant to the requirements of Rule 26(b)(4) of the West
Virginia Rules of Civil Procedure; provide inspection and copying
of the results of any reports of physical and mental examinations
or scientific tests or experiments; and provide a list and copy
of any proposed exhibit to be used at the hearing.
(j) 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 or her 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 or her license or other
authorization to practice medicine and surgery or podiatry for
not more than five years, including limiting the practice of that
person to, or by the exclusion of, one or more areas of practice,
including limitations on practice privileges;
(4) Revoke his or her license or other authorization to
practice medicine and surgery or podiatry or to prescribe or dispense controlled substances;
(5) Require him or her 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 or her to participate in a program of
education prescribed by the board;
(7) Require him or her 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.
(k) 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 the action. The board shall render its decision within five days of the conclusion of a hearing under this subsection.
(l) 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: Provided, That a circuit judge may
also remand the matter to the board if it appears from competent
evidence presented to it in support of a motion for remand that
there is newly discovered evidence of such a character as ought
to produce an opposite result at a second hearing on the merits
before the board and:
(1) The evidence appears to have been discovered since the
board hearing; and
(2) The physician or podiatrist exercised due diligence in
asserting his or her evidence and that due diligence would not
have secured the newly discovered evidence prior to the appeal.
Except with regard to an order of temporary suspension of a
license for six months or less, a person may not practice
medicine and surgery or podiatry or deliver health care services
in violation of any disciplinary order revoking or limiting his
or her 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.
(m) 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 or
she 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 may not be
accepted for a period of at least five years.
(n) 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 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.
(o) A physician or podiatrist may request in writing to the
board a limitation on or the surrendering of his or her license
to practice medicine and surgery or podiatry or other appropriate
sanction as provided herein. The board may grant 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 or her
license to practice medicine and surgery or podiatry.
(p) 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 probable cause is found to exist, all proceedings on the
charges shall be open to the public who shall be entitled to all
reports, records, and nondeliberative materials introduced at the
hearing, including the record of the final action taken:
Provided, That any medical records, which were introduced at the
hearing and which pertain to a person who has not expressly
waived his or her right to the confidentiality of the records,
may not be open to the public nor is the public entitled to the
records.
(q) Notwithstanding any other provisions of this article,
the board may at any time, on its own motion, or upon motion by
the complainant, or upon motion by the physician or podiatrist,
or by stipulation of the parties, refer the matter to mediation.
The board shall obtain a list from the West Virginia state bar's mediator referral service of certified mediators with expertise
in professional disciplinary matters. The board and the physician
or podiatrist may choose a mediator from this list. If the board
and the physician or podiatrist are unable to agree on a
mediator, the board shall designate a mediator from this listing
by neutral rotation. The mediation shall not be considered a
proceeding open to the public and any reports and records
introduced at the mediation shall not become part of the public
record. The mediator and all participants in the mediation shall
maintain and preserve the confidentiality of all mediation
proceedings and records. The mediator may not be subpoenaed or
called to testify or otherwise be subject to process requiring
disclosure of confidential information in any proceeding relating
to or arising out of the disciplinary or licensure matter
mediated: Provided, That any confidentiality agreement and any
written agreement made and signed by the parties as a result of
mediation may be used in any proceedings subsequently instituted
to enforce the written agreement. The agreements may be used in
other proceedings if the parties agree in writing to do this.
§30-3-15. Medical corporations; podiatry corporations;
application for registration; fees; notice to secretary of
state of issuance of certificate; action by secretary of state; rights and limitations generally; biennial
registration; when practice to cease; admissibility and
effect of certificate signed by secretary of board; criminal
penalty; severability.
(a) When one or more physicians duly licensed to practice
medicine and surgery in this state under this article, or one or
more physicians duly licensed under this article and one or more
physicians duly licensed under article fourteen of this chapter,
or one or more podiatrists duly licensed to practice podiatry in
this state wish to form a medical or podiatry corporation,
respectively, such physician or physicians or podiatrist or
podiatrists shall file a written application therefor with the
board on a form prescribed by it and shall furnish proof
satisfactory to the board that each applicant is a duly licensed
physician or podiatrist. A fee, not to exceed five hundred
dollars, the amount of such fee to be set by the board, shall
accompany each application. Upon its determination that each
applicant is duly licensed, the board shall notify the secretary
of state that a certificate of authorization has been issued to
the person or persons making the application. When the
secretary of state receives such notification from the board, he
or she shall attach such authorization to the corporation
application and, upon compliance by the corporation with the pertinent provisions of chapter thirty-one of this code, shall
notify the incorporators that such corporation, through duly
licensed physicians or through duly licensed podiatrists, may
engage in the practice of medicine and surgery or the practice of
podiatry.
(b) A medical corporation may practice medicine and surgery
only through individual physicians duly licensed to practice
medicine and surgery in this state and a podiatrist may practice
podiatry only through individual podiatrists duly licensed to
practice podiatry in this state, but such physicians or
podiatrists may be employees rather than shareholders of such
corporation, and nothing herein contained shall be construed to
require a license for or other legal authorization of any
individual employed by such corporation to perform services for
which no license or other legal authorization is otherwise
required. Nothing contained in this article is meant or intended
to change in any way the rights, duties, privileges,
responsibilities and liabilities incident to the physician- patient or podiatrist-patient relationship nor is it meant or
intended to change in any way the personal character of the
physician-patient or podiatrist-patient relationship. A
corporation holding such certificate of authorization shall register biennially, on or before the thirtieth day of June, on
a form prescribed by the board, and shall pay an annual
registration fee not to exceed three hundred dollars, the amount
of such fee to be set by the board.
(c) A medical or podiatry corporation holding a certificate
of authorization shall cease to engage in the practice of
medicine and surgery or the practice of podiatry upon being
notified by the board that any of its shareholders is no longer
a duly licensed physician or podiatrist, or when any shares of
such corporation have been sold or disposed of to a person who is
not a duly licensed physician or podiatrist: Provided, That the
personal representative of a deceased shareholder shall have a
period, not to exceed twelve months from the date of such
shareholder's death, to dispose of such shares; but nothing
contained herein shall be construed as affecting the existence of
such corporation or its right to continue to operate for all
lawful purposes other than the practice of medicine and surgery
or the practice of podiatry.
(d) No corporation shall practice medicine and surgery or
any of its branches, or hold itself out as being capable of
practicing medicine and surgery, or practice podiatry or hold
itself out as being capable of practicing podiatry, without a certificate from the board; nor
shall any corporation practice
medicine and surgery or any of its branches or hold itself out as
being capable of practicing medicine and surgery, or practice
podiatry or hold itself out as being capable of practicing
podiatry, after its certificate has been revoked, or if
suspended, during the term of such suspension. A certificate
signed by the secretary of the board to which is affixed the
official seal of the board to the effect that it appears from the
records of the board that no such certificate to practice
medicine and surgery or any of its branches, or to practice
podiatry, in the state has been issued to any such corporation
specified therein or that such certificate has been revoked or
suspended shall be admissible in evidence in all courts of this
state and shall be prima facie evidence of the facts stated
therein.
(e) Any officer, shareholder or employee of such corporation
who participates in a violation of any provision of this section
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be fined not exceeding one thousand dollars.
§30-3-18. Continuation of board.
The board of medicine shall continue to exist until the
first day of July, two thousand, pursuant to the provisions of article ten, chapter four of this code, to allow for the
completion of a preliminary performance review by the joint
committee on government operations.