H. B. 2082
(By Mr. Speaker, Mr. Kiss)
[Introduced January 13, 1999; referred to the
Committee on Government Organization.]
A BILL to amend and reenact sections one, two, five, six, nine,
ten, twelve 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; legislative findings that once a
license to practice medicine is issued it becomes a property
right; requiring that the appointment of members of the
board of medicine be balanced by the specialty of the
individuals and geographic districts; providing that board
members receive compensation according to the provisions of
section eleven, article one of this chapter; changing the
board of medicine quorum requirement and voting majority
requirement; requiring expungement of records in certain
situations; reciprocal licensure of physicians from foreign
states; documented evidence of successful completions of minimum of fifty hours of continuing medical education to be
submitted with biennial renewal application forms; manner of
investigations; amending the assessment of costs and fees by
the board; and changing procedures for conducting hearings
of complaints, reporting of certain actions and providing
recovery of fees in certain instances.
Be it enacted by the Legislature of West Virginia:
That sections one, two, five, six, nine, ten, twelve 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
eligibility to obtain licensure to 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.
However, the Legislature finds and declares that once
an individual has been granted a medical or podiatrist's or
physician assistant's license, a property right is created that
cannot be revoked, suspended or restricted without due process of law. The Legislature also finds that West Virginia is a medically
under served area. As a matter of public policy, the board of
medicine shall work with physicians, podiatrists and physician
assistants to establish and maintain an environment that
encourages the recruitment and retention of physicians and
podiatrists.
§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
maintain an environment which encourages physicians to practice
medicine in this state.
§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
which
appointments shall be balanced by specialty of the individuals
consisting of one member from each of the following specialities:
Family practice, internal medicine, surgery, pediatrics,
obstetrics, gynecology and psychiatry. The remaining two
appointments shall be selected from other specialities. At
least three nominations for each physician appointment shall be
made by the appropriate specialty academy, organization or
college and submitted to the governor who shall select from the
nominations submitted. To be eligible for nomination as a physician member, the physician shall hold an active medical
license and shall participate in direct patient care at least
twenty-four hours weekly. Of the remaining seven members 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
or an insurer or employed by an insurer of
health care benefits. Neither may a lay member hold a position
which is adverse to a physician's interest, including, but not
limited to, representing plaintiffs in malpractice actions. 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
may 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 if the person is a
member of any political party executive committee or, with the
exception of the state director of health,
who if the person
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 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.
Compensation shall be according to the provisions of section
eleven, article one of this chapter.
A majority of the membership 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 six members or a majority vote of those
present, whichever is greater
which vote shall include the
affirmative votes of at least two physicians.
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.
§30-3-9. Records of board; expungement; examination; notice;
public information; voluntary agreements relating
to alcohol or chemical dependency; confidentiality
of same; physician-patient privileges.
(a) The board shall maintain a permanent record of the names
of all physicians, podiatrists, and physician assistants,
licensed, certified, or otherwise lawfully practicing in this
state, and of all persons applying to be so licensed to practice,
along with an individual historical record for each
such
individual containing reports and all other information furnished
the board under this article or otherwise.
Such The record may
include, in accordance with rules established by the board, additional items relating to the individual's record of
professional practice that will facilitate proper review of
such
the individual's professional competence.
(b) Upon a determination by the board that any report
submitted to it is without merit, the report shall be expunged
from the individual's historical record.
(c) A physician, podiatrist, physician assistant or
applicant, or authorized representative thereof, has the right,
upon request, to examine his or her own individual historical
record maintained by the board pursuant to this article and to
place into
such the record a statement of reasonable length of
his or her own view of the correctness or relevance of any
information existing in such record.
Such The statement shall
at all times accompany that part of the record in contention.
(d) A physician, podiatrist, physician assistant or
applicant has the right to seek through court action the
amendment or expungement of any part of his or her historical
record.
(e) A physician, podiatrist, physician assistant or
applicant shall be provided written notice within thirty days of
the placement and substance of any information in his
or her
individual historical record that pertains to him
or her and that
was not submitted to the board by him
or her.
(f) Except for information relating to biographical background, education, professional training and practice, a
voluntary agreement entered into pursuant to subsection (h) of
this section, prior disciplinary action by any entity,
or when
the board has taken any adverse action or accepted the surrender
of a license or information contained on the licensure
application, the board shall expunge information in an
individual's historical record unless it has initiated a
proceeding for a hearing upon
such the information within two
years of the placing of the information into the historical
record.
(g) Orders of the board relating to disciplinary action
against a physician, podiatrist or physician assistant are public
information.
(h) (1) In order to encourage voluntary reporting of alcohol
or other chemical dependency impairment and in recognition of the
fact that alcoholism and chemical dependency are illnesses, a
physician, podiatrist or physician assistant licensed, certified,
or otherwise lawfully practicing in this state may enter into a
voluntary agreement with the board reporting his or her
participation in a chemical dependency or alcohol treatment
program or reporting an alcohol or chemical dependency impairment
to the board and seek treatment for his or her dependency.
Pursuant to
said the agreement the board shall impose limitations
on the practice of said physician, podiatrist or physician assistant.
(2) Any voluntary agreement entered into pursuant to this
subsection
shall may not be considered a disciplinary action or
order by the board and
shall may not be public information if:
(A)
Such The voluntary agreement is the result of the
physician, podiatrist or physician assistant reporting to the
board his or her participation in a chemical dependency or
alcohol treatment program or reporting to the board his or her
alcohol or chemical dependency impairment and requesting
such an
agreement for the purpose of seeking treatment; and
(B) The board has not received nor filed any written
complaints regarding
said the physician, podiatrist or physician
assistant relating to an alcohol or chemical dependency
impairment affecting the care and treatment of patients, nor
received any reports pursuant to subsection (b), section fourteen
of this article relating to an alcohol or chemical dependency
impairment.
(3) If any physician, podiatrist or physician assistant
enters into a voluntary agreement with the board pursuant to this
subsection and then fails to comply with or fulfill the terms of
said the agreement, the board shall initiate disciplinary
proceedings pursuant to subsection (a), section fourteen of this
article.
(4) If the board has not instituted any disciplinary proceeding as provided for in this article, any information
received, maintained, or developed by the board relating to the
alcohol or chemical dependency impairment of any physician,
podiatrist or physician assistant and any voluntary agreement
made pursuant to this subsection shall be confidential and not
available for public information, discovery, or court subpoena,
nor for introduction into evidence in any medical professional
liability action or other action for damages arising out of the
provision of or failure to provide health care services.
In the board's annual report of its activities to the
Legislature required under section seven of this article, the
board shall include information regarding the success of the
voluntary agreement mechanism established therein:
Provided,
That in making
such the report the board
shall may not disclose
any personally identifiable information relating to any
physician, podiatrist or physician assistant participating in a
voluntary agreement as provided herein.
Notwithstanding any of the foregoing provisions, the board
may cooperate with and provide documentation of any voluntary
agreement entered into pursuant to this subsection to licensing
boards in other jurisdictions, as may be appropriate.
(i) Any physician-patient privilege does not apply in any
investigation or proceeding by the board or by a medical peer
review committee or by a hospital governing board with respect to relevant hospital medical records, while any of the aforesaid are
acting within the scope of their authority:
Provided, That
the
patient's name shall be redacted in any order of the board or any
pleading filed with the supreme court of appeals, and the
disclosure of any information pursuant to this provision
shall
may not be considered a waiver of any
such privilege in any other
proceeding.
§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
such 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
said board, or a majority of them, may accept in lieu of an
examination of applicants, the certificate of the national board
of medical examiners. 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; and
(3) He or she must submit evidence to the board of having
successfully completed a minimum of two years of graduate
clinical training in a program approved by the accreditation
council for graduate medical education.
(d) In addition to the requirements of subsection (b) of
this section, any individual who is an applicant for a license to
practice medicine and surgery by reciprocal endorsement from
another state, the District of Columbia, Canada or the
Commonwealth of Puerto Rico, shall be accepted when the foreign
state has determined the physician meets the requirements of the
foreign state, and the requirements of the foreign state are
consistent with the requirements of West Virginia. Documentation
confirming requirements is required for any requirement that is unique to West Virginia.
A physician who is an American citizen and who has received
his or her medical education from a foreign medical school and is
an applicant for a license to practice medicine and surgery by
reciprocal endorsement from another state, the District of
Columbia, Canada or the Commonwealth of Puerto Rico, who is board
certified (ABMS) in a specialty is not required to have a
certificate from the (ECFMG).
(d) (e) 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
such 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) (f) All licenses to practice medicine and surgery
granted prior to
the first day of July,
first one thousand nine
hundred ninety-one, and valid on that date, shall continue in
full effect for
such that term and under
such the conditions as
provided by law at the time of the granting of the license:
Provided, That the provisions of subsection (d) of this section
shall may 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.
§30-3-12. Biennial renewal of license to practice medicine and
surgery or podiatry; continuing education; rules;
fee; inactive license.
(a) A license to practice medicine and surgery or podiatry
in this state is valid for a term of two years and shall be
renewed upon a receipt of a reasonable fee, as set by the board,
submission of an application on forms provided by the board and,
beginning with the biennial renewal application forms completed
by licensees and submitted to the board in one thousand nine
hundred ninety-three, a certification in accordance with rules
and regulations promulgated by the board in accordance with
chapter twenty-nine-a of this code, of participation in and
successful completion of a minimum of fifty hours of continuing
medical or podiatric education satisfactory to the board, as
appropriate to the particular license, during the preceding
two-year period.
Beginning with the biennial renewal application
forms completed by physician licensees and submitted to the board in the year two thousand, physicians shall submit documented
evidence of the successful completion of a minimum of fifty hours
of continuing medical education. Continuing medical education
satisfactory to the board is continuing medical education
designated as Category I by the American medical association or
the academy of family physicians and continuing podiatric
education satisfactory to the board is continuing podiatric
education approved by the council on podiatric education.
In addition, the Legislature hereby finds and declares that
it is in the public interest to encourage alternate categories of
continuing education satisfactory to the board for physicians and
podiatrists. In order to provide adequate notice of the same to
physicians and podiatrists, no later than the first day of June,
one thousand nine hundred ninety-one, the board shall file rules
under the provisions of section fifteen, article three, chapter
twenty-nine-a of this code, delineating any alternate categories
of continuing medical or podiatric education which may be
considered satisfactory to the board and any procedures for board
approval of
such continuing education.
Notwithstanding any provision of this chapter to the
contrary, failure to timely submit to the board a certification
in accordance with rules
and regulations promulgated by the board
in accordance with chapter twenty-nine-a of this code of
successful completion of a minimum of fifty hours of continuing medical or podiatric education satisfactory to the board, as
appropriate to the particular license, shall, beginning the first
day of July, one thousand nine hundred ninety-three, result in
the automatic suspension of any license to practice medicine and
surgery or podiatry until
such that time as the certification in
accordance with rules
and regulations promulgated by the board in
accordance with chapter twenty-nine-a of this code, with all
supporting written documentation, is submitted to and approved by
the board.
Any individual who accepts the privilege of practicing
medicine and surgery or podiatry in this state is required to
provide supporting written documentation of the continuing
education represented as received within thirty days of receipt
of a written request to do so by the board. If a licensee fails
or refuses to provide supporting written documentation of the
continuing education represented as received as required in this
section,
such the failure or refusal to provide supporting
written documentation is prima facie evidence of renewing a
license to practice medicine and surgery or podiatry by
fraudulent misrepresentation.
(b) The board may renew, on an inactive basis, the license
of a physician or podiatrist who is currently licensed to
practice medicine and surgery or podiatry in, but is not actually
practicing, medicine and surgery or podiatry in this state. A physician or podiatrist holding an inactive license
shall may not
practice medicine and surgery or podiatry in this state. His or
her inactive license may be converted by the board to an active
one upon a written request to the board that accounts for his or
her period of inactivity to the satisfaction of the board:
Provided, That beginning on the first day of July, one thousand
nine hundred ninety-three,
such the licensee submits written
documentation of participation in and successful completion of a
minimum of fifty hours of continuing medical or podiatric
education satisfactory to the board, as appropriate to the
particular license, during each preceding two-year period. An
inactive license may be obtained upon receipt of a reasonable
fee, as set by the board, and submission of an application on
forms provided by the board on a biennial basis.
§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 person or organization bringing a complaint shall be
present at any formal hearing, either in person, if an
individual, or by a duly designated agent, if any other legal
entity. If the complainant fails to appear at a hearing, the
complaint shall be closed and dismissed with no action. The
board, at any time prior to a hearing, shall provide a procedure
whereby the physician and the physician's counsel, if any, may
meet with the licensure committee or its counsel to negotiate a
settlement. In addition to current board rules, the board shall
be governed by rules twenty-six through thirty-seven of the West
Virginia rules of civil procedure in all disciplinary proceedings
before it.
Any complaint filed under the provisions of this section
shall indicate what remedy is sought for the complaint. If there
is any pending litigation relating to the physician against whom
a complaint has been filed and the subject matter of that complaint, investigation of the complaint shall be stayed until
a final disposition of the litigation.
The board may
only 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
based upon criminal convictions, citizens complaints, complaints
by peer review committees, physicians, podiatrists, hospital
administrators and professional societies or if their are five
judgments or settlements within the most recent five-year period
in excess of fifty thousand dollars each. The board may not
investigate a physician solely because of an adverse judgment or
settlement until there are at least five judgments or
settlements. Except for investigations of five or more judgments
or settlements within the most recent five-year period, the board
may not consider any other complaint for any alleged conduct that
occurred more than two years before the complaint was brought.
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
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 the
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.
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
such
the member, together with all pertinent information relating to
such 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,
dismissal or
settlement of a civil
or medical malpractice action
excepting
product liability actions: 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.
If the
complaint is ultimately determined to be without merit and the
complainant acted maliciously or exclusively for financial
motive, the board may assess all costs of hearing against the
complainant. 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
such 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
such 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.
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 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:
(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
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
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. 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
considers 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 considered to have given his
or her 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
or her control,
such 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
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
or
her 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
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) 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
such
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
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 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 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.
(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
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
shall may 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
or her 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
or her 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
or her right to the confidentiality of
such the
records,
shall may not be open to the public nor is the public
entitled to
such the records.
NOTE: The purpose of this bill is to amend the West Virginia
medical practice act; appointment of certain members of the
board of medicine; it provides the board members receive
compensation according to the provisions of §30-1-11; change the
board of medicine quorum requirement and voting majority
requirement; change method of accepting reciprocal licensure of
physicians from foreign states; change certain procedures in
hearings of complaints against physicians; change the manner of
investigations; amend the assessment of costs and fees by the
board; and provide recovery of fees in certain instances.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.
GOVERNMENT ORGANIZATION COMMITTEE AMENDMENT
On page two, by striking out everything following the
enacting clause and inserting in lieu thereof the following:
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 such 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 said 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 such 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 first, one thousand nine hundred
ninety-one, and valid on that date, shall continue in full effect
for such the term and under such the
conditions as 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 and support
health care when distance separates participants and includes one
or both of the following: (1) The rendering of a medical opinion
concerning diagnosis or treatment of a patient within this state
by a physician located outside this state as a result of the
transmission of individual patient data 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 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. A physician
located at a
tertiary care or university hospital outside this state
and
engaged in the practice of telemedicine, who acts in a consulting
capacity at the request of a treating physician engaged in the
practice of medicine and surgery within the borders of this
state; or a physician located outside this state who treats a
patient when the patient is physically located at the out-of- state location, and who then through the practice of telemedicine
consults with a physician located within this state for the
purposes of follow-up care or consultation related to a treatment
plan developed at the out-of-state location, is exempt from the
licensure requirements of this section.
Any other physician
located outside this state
and engaged in the practice of
telemedicine who
consults, or who renders a second opinion, concerning diagnosis or treatment of a patient within this state,
who consults or renders the opinion: (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 is exempt from
the licensure requirements of this section.
(3) 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;
(4) Any person providing first-aid care in emergency
situations;
(5) 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;
(6) 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;
(7) 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;
(8) The fitting, recommending or sale of corrective shoes,
arch supports or similar mechanical appliances in commercial
establishments; and
(9) 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 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 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 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 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 such
the member, together with all pertinent information relating to
such 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, dismissal or
settlement of a civil or medical malpractice action excepting
product liability actions: 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. 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 such 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 such 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. 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
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 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 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 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 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 five 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 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 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 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 or
her control, such 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 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 or
her 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 or her behalf for the
attendance of witnesses and the production of documents. At the
time the adjudicatory hearing is scheduled, the hearing examiner
shall issue an order directing all parties to list all witnesses
to be called at hearing and, in the case of expert witnesses,
indicate the nature of their expertise; and to list all
documentary or physical exhibits to be offered into evidence by
number and title, and attach copies of the documentary exhibits;
and to serve the lists upon the opposing party at a time set by
the hearing examiner. At hearing, no other witnesses may be
heard unless offered for the purpose of unanticipated rebuttal or
for whom showing of clear good cause for late submission can be
made, and no other documentary evidence may be received unless
offered for rebuttal purposes the need for which could not have
been anticipated. Either party shall be permitted to call
witnesses listed on the witness list of the opposing party. The
board shall make all its final actions public. The order shall
contain the terms of all action taken by the board. If the
complaint is ultimately determined to be without merit and the
complainant acted maliciously and in bad faith, the board may
assess all costs of hearing against the complainant.
(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 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 such
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.
(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: Provided, That a circuit judge may,
upon proper motion, remand the case to the board on the ground
that new, important, and material evidence has been discovered
since the hearing before the board: Provided, however, That
remand may not be ordered if: (1) The evidence is merely
cumulative, (2) the evidence is not material, or (3) the party
seeking remand could by due diligence have discovered the evidence prior to hearing. Except with regard to an order of
temporary suspension of a license for six months or less, a
person shall 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.
(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 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 shall may 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 or her 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 or her 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 or her right to the
confidentiality of such the records, shall may not be open to the
public nor is the public entitled to such the records.
§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 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.
(f) If any provision of this section is held to be invalid,
such invalidity shall not affect the other provisions of this
section which can be given effect without such the invalid
provision, and to this end the provisions of this section are
severable.
§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.
And by amending the title of the bill to read as follows:
H. B. 2082 -- "A Bill 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; authorizing the formation
of medical corporations with licensed osteopathic physicians; and
continuing the board pursuant to the West Virginia sunset law."
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