Senate Bill No. 243
(By Senator Wooton, Bowman and Rowe)
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[Introduced January 18, 2002; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section fourteen, article three,
chapter thirty of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to lowering
the number of settlements and judgments for initiating
investigations for professional incompetence; improving
reporting to the board of information as to professional
incompetence, substandard care, impairment and disciplinary
activity from hospitals, managed care organizations and
courts; removing the reference to disability; specifying
that revocations of licenses may be for a period of up to
ten years; prohibiting courts from entering stays of
disciplinary orders pending appeal; removing a provision on
reapplication for a license after conviction of a drug
felony which conflicts with another section mandating revocation; and denial of a license in such an instance.
Be it enacted by the Legislature of West Virginia:
That section fourteen, article three, chapter thirty of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-14. Professional discipline of physicians and
podiatrists; reporting of information to board
pertaining to professional malpractice and
professional incompetence required; penalties;
grounds for license denial and discipline of
physicians and podiatrists; investigations;
physical and mental examinations; hearings;
sanctions; summary sanctions; reporting by the
board; reapplication; civil and criminal immunity;
voluntary limitation of license; probable cause
determinations.
(a) The board may independently initiate disciplinary
proceedings as well as initiate disciplinary proceedings based
on information received from medical peer review committees,
physicians, podiatrists, hospital administrators, professional
societies and others.
The board may initiate investigations as to professional incompetence or other reasons for which a licensed physician or
podiatrist may be adjudged unqualified based upon criminal
convictions; complaints by citizens, pharmacists, physicians,
podiatrists, peer review committees, hospital administrators,
professional societies or others; or if there are five judgments
or settlements within the most recent five-year period in excess
of fifty thousand dollars each. The board may not consider any
judgments or settlements as conclusive evidence of professional
incompetence or conclusive lack of qualification to practice.
(b) Upon request of the board, any medical peer review
committee in this state shall report any information that may
relate to the practice or performance of any physician or
podiatrist known to that medical peer review committee. Copies
of the requests for information from a medical peer review
committee may be provided to the subject physician or podiatrist
if, in the discretion of the board, the provision of such copies
will not jeopardize the board's investigation. In the event
that copies are so provided, the subject physician or podiatrist
is allowed fifteen days to comment on the requested information
and such comments must be considered by the board.
After the completion of the hospital's formal disciplinary
procedure and also after the commencement and the conclusion of
any resulting legal action, the chief executive officer of the hospital shall report in writing to the board within sixty days
the name of any member of the medical staff or any other
physician or podiatrist practicing in the hospital whose
hospital privileges have been revoked, restricted, reduced or
terminated for any cause, including resignation, together with
all pertinent information relating to such action. The chief
executive officer shall also report any other formal
disciplinary action taken against any physician or podiatrist by
the hospital upon the recommendation of its medical staff
relating to professional ethics, medical incompetence, medical
malpractice, moral turpitude or drug or alcohol abuse.
Temporary suspension for failure to maintain records on a timely
basis or failure to attend staff or section meetings need not be
reported. Voluntary cessation of hospital privileges for
reasons unrelated to professional competence or ethics need not
be reported.
Any managed care organization operating with the state shall
submit to the board all pertinent information regarding
physician or podiatrist impairment, physician or podiatrist
incompetence or physician or podiatrist deselection and the
reason therefor, within sixty days of action by the managed care
organization. Any professional society in this state comprised
primarily of physicians or podiatrists which takes formal disciplinary action against a member relating to professional
ethics, professional incompetence, professional malpractice,
moral turpitude or drug or alcohol abuse, shall report in
writing to the board within sixty days of a final decision the
name of the member, together with all pertinent information
relating to the action.
Every person, partnership, corporation, association,
insurance company, professional society or other organization
providing professional liability insurance to a physician or
podiatrist in this state shall submit to the board the following
information within thirty days from any judgment, or settlement
of a civil or medical malpractice action excepting product
liability actions: The date of any judgment or settlement;
whether any appeal has been taken on the judgment, and, if so,
by which party; the amount of any settlement or judgment against
the insured; and other information as the board may require.
Within thirty days from entry of any order from any court
in a civil or medical malpractice action wherein a physician or
podiatrist licensed by the board is found by the court to be
negligent or has rendered treatment below the appropriate
standard of care, the court shall submit the order to the board.
Within thirty days after a person known to be a physician
or podiatrist licensed or otherwise lawfully practicing medicine and surgery or podiatry in this state or applying to be so
licensed is convicted of a felony under the laws of this state,
or of any crime under the laws of this state involving alcohol
or drugs in any way, including any controlled substance under
state or federal law, the clerk of the court of record in which
the conviction was entered shall forward to the board a
certified true and correct abstract of record of the convicting
court. The abstract shall include the name and address of the
physician or podiatrist or applicant, the nature of the offense
committed and the final judgment and sentence of the court.
Upon a determination of the board that there is probable
cause to believe that any person, partnership, corporation,
association, insurance company, professional society or other
organization has failed or refused to make a report required by
this subsection, the board shall provide written notice to the
alleged violator stating the nature of the alleged violation and
the time and place at which the alleged violator shall appear to
show good cause why a civil penalty should not be imposed. The
hearing shall be conducted in accordance with the provisions of
article five, chapter twenty-nine-a of this code. After
reviewing the record of the hearing, if the board determines
that a violation of this subsection has occurred, the board
shall assess a civil penalty of not less than one thousand dollars nor more than ten thousand dollars against the violator.
Anyone so assessed shall be notified of the assessment in
writing and the notice shall specify the reasons for the
assessment. If the violator fails to pay the amount of the
assessment to the board within thirty days, the attorney general
may institute a civil action in the circuit court of Kanawha
County to recover the amount of the assessment. In any such
civil action, the court's review of the board's action shall be
conducted in accordance with the provisions of section four,
article five, chapter twenty-nine-a of this code.
Notwithstanding any other provision of this article to the
contrary, when there are conflicting views by recognized experts
as to whether any alleged conduct breaches an applicable
standard of care, the evidence must be clear and convincing
before the board may find that the physician has demonstrated a
lack of professional competence to practice with a reasonable
degree of skill and safety for patients.
Any person may report to the board relevant facts about the
conduct of any physician or podiatrist in this state which in
the opinion of that person amounts to professional malpractice
or professional incompetence.
The board shall provide forms for filing reports pursuant
to this section. Reports submitted in other forms shall be accepted by the board.
The filing of a report with the board pursuant to any
provision of this article, any investigation by the board or any
disposition of a case by the board does not preclude any action
by a hospital, other health care facility or professional
society comprised primarily of physicians or podiatrists to
suspend, restrict or revoke the privileges or membership of the
physician or podiatrist.
(c) The board may deny an application for license or other
authorization to practice medicine and surgery or podiatry in
this state and may discipline a physician or podiatrist licensed
or otherwise lawfully practicing in this state who, after a
hearing, has been adjudged by the board as unqualified due to
any of the following reasons:
(1) Attempting to obtain, obtaining, renewing or attempting
to renew a license to practice medicine and surgery or podiatry
by bribery, fraudulent misrepresentation or through known error
of the board;
(2) Being found guilty of a crime in any jurisdiction, which
offense is a felony, involves moral turpitude or directly
relates to the practice of medicine. Any plea of nolo
contendere is a conviction for the purposes of this subdivision;
(3) False or deceptive advertising;
(4) Aiding, assisting, procuring or advising any
unauthorized person to practice medicine and surgery or podiatry
contrary to law;
(5) Making or filing a report that the person knows to be
false; intentionally or negligently failing to file a report or
record required by state or federal law; willfully impeding or
obstructing the filing of a report or record required by state
or federal law; or inducing another person to do any of the
foregoing. The reports and records as are herein covered mean
only those that are signed in the capacity as a licensed
physician or podiatrist;
(6) Requesting, receiving or paying directly or indirectly
a payment, rebate, refund, commission, credit or other form of
profit or valuable consideration for the referral of patients to
any person or entity in connection with providing medical or
other health care services or clinical laboratory services,
supplies of any kind, drugs, medication or any other medical
goods, services or devices used in connection with medical or
other health care services;
(7) Unprofessional conduct by any physician or podiatrist
in referring a patient to any clinical laboratory or pharmacy in
which the physician or podiatrist has a proprietary interest
unless the physician or podiatrist discloses in writing such interest to the patient. The written disclosure shall indicate
that the patient may choose any clinical laboratory for purposes
of having any laboratory work or assignment performed or any
pharmacy for purposes of purchasing any prescribed drug or any
other medical goods or devices used in connection with medical
or other health care services;
As used herein, "proprietary interest" does not include an
ownership interest in a building in which space is leased to a
clinical laboratory or pharmacy at the prevailing rate under a
lease arrangement that is not conditional upon the income or
gross receipts of the clinical laboratory or pharmacy;
(8) Exercising influence within a patient-physician
relationship for the purpose of engaging a patient in sexual
activity;
(9) Making a deceptive, untrue or fraudulent representation
in the practice of medicine and surgery or podiatry;
(10) Soliciting patients, either personally or by an agent,
through the use of fraud, intimidation or undue influence;
(11) Failing to keep written records justifying the course
of treatment of a patient, the records to include, but not be
limited to, patient histories, examination and test results and
treatment rendered, if any;
(12) Exercising influence on a patient in such a way as to exploit the patient for financial gain of the physician or
podiatrist or of a third party. Any influence includes, but is
not limited to, the promotion or sale of services, goods,
appliances or drugs;
(13) Prescribing, dispensing, administering, mixing or
otherwise preparing a prescription drug, including any
controlled substance under state or federal law, other than in
good faith and in a therapeutic manner in accordance with
accepted medical standards and in the course of the physician's
or podiatrist's professional practice: Provided, That a
physician who discharges his or her professional obligation to
relieve the pain and suffering and promote the dignity and
autonomy of dying patients in his or her care, and in so doing,
exceeds the average dosage of a pain relieving controlled
substance, in Schedule II and III of the Uniform Control
Substance Act, does not violate this article;
(14) Performing any procedure or prescribing any therapy
that, by the accepted standards of medical practice in the
community, would constitute experimentation on human subjects
without first obtaining full, informed and written consent;
(15) Practicing or offering to practice beyond the scope
permitted by law or accepting and performing professional
responsibilities that the person knows or has reason to know he or she is not competent to perform;
(16) Delegating professional responsibilities to a person
when the physician or podiatrist delegating the responsibilities
knows or has reason to know that the person is not qualified by
training, experience or licensure to perform them;
(17) Violating any provision of this article or a rule or
order of the board, or failing to comply with a subpoena or
subpoena duces tecum issued by the board;
(18) Conspiring with any other person to commit an act or
committing an act that would tend to coerce, intimidate or
preclude another physician or podiatrist from lawfully
advertising his or her services;
(19) Gross negligence in the use and control of prescription
forms;
(20) Professional incompetence;
(21) The inability to practice medicine and surgery or
podiatry with reasonable skill and safety due to physical or
mental disability impairment, 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 may resume the
competent practice of medicine and surgery or podiatry with reasonable skill and safety to patients. In any proceeding
under this subdivision, neither the record of proceedings nor
any orders entered by the board shall be used against the
physician or podiatrist in any other proceeding.
(d) The board shall deny any application for a license or
other authorization to practice medicine and surgery or podiatry
in this state to any applicant who, and shall revoke the license
of any physician or podiatrist licensed or otherwise lawfully
practicing within this state who, is found guilty by any court
of competent jurisdiction of any felony involving prescribing,
selling, administering, dispensing, mixing or otherwise
preparing any prescription drug, including any controlled
substance under state or federal law, for other than generally
accepted therapeutic purposes. Presentation to the board of a
certified copy of the guilty verdict or plea rendered in the
court is sufficient proof thereof for the purposes of this
article. A plea of nolo contendere has the same effect as a
verdict or plea of guilt.
(e) The board may refer any cases coming to its attention
to an appropriate committee of an appropriate professional
organization for investigation and report. Except for
complaints related to obtaining initial licensure to practice
medicine and surgery or podiatry in this state by bribery or fraudulent misrepresentation, any complaint filed more than two
years after the complainant knew, or in the exercise of
reasonable diligence should have known, of the existence of
grounds for the complaint, shall be dismissed: Provided, That
in cases of conduct alleged to be part of a pattern of similar
misconduct or professional incapacity that, if continued, would
pose risks of a serious or substantial nature to the physician
or podiatrist's current patients, the investigating body may
conduct a limited investigation related to the physician or
podiatrist's current capacity and qualification to practice, and
may recommend conditions, restrictions or limitations on the
physician or podiatrist's license to practice that it considers
necessary for the protection of the public. Any report shall
contain recommendations for any necessary disciplinary measures
and shall be filed with the board within ninety days of any
referral. The recommendations shall be considered by the board
and the case may be further investigated by the board. The
board after full investigation shall take whatever action it
deems appropriate, as provided herein.
(f) The investigating body, as provided for in subsection
(e) of this section, may request and the board under any
circumstances may require a physician or podiatrist or person
applying for licensure or other authorization to practice medicine and surgery or podiatry in this state to submit to a
physical or mental examination by a physician or physicians
approved by the board. A physician or podiatrist submitting to
any such examination has the right, at his or her expense, to
designate another physician to be present at the examination and
make an independent report to the investigating body or the
board. The expense of the examination shall be paid by the
board. Any individual who applies for or accepts the privilege
of practicing medicine and surgery or podiatry in this state is
deemed considered to have given his or her consent to submit to
all examinations when requested to do so in writing by the board
and to have waived all objections to the admissibility of the
testimony or examination report of any examining physician on
the ground that the testimony or report is privileged
communication. If a person fails or refuses to submit to any
such examination under circumstances which the board finds are
not beyond his or her control, failure or refusal is prima facie
evidence of his or her inability to practice medicine and
surgery or podiatry competently and in compliance with the
standards of acceptable and prevailing medical practice.
(g) In addition to any other investigators it employs, the
board may appoint one or more licensed physicians to act for it
in investigating the conduct or competence of a physician.
(h) In every disciplinary or licensure denial action, the
board shall furnish the physician or podiatrist or applicant
with written notice setting out with particularity the reasons
for its action. Disciplinary and licensure denial hearings
shall be conducted in accordance with the provisions of article
five, chapter twenty-nine-a of this code. However, hearings
shall be heard upon sworn testimony and the rules of evidence
for trial courts of record in this state shall apply to all
hearings. A transcript of all hearings under this section shall
be made, and the respondent may obtain a copy of the transcript
at his or her expense. The physician or podiatrist has the
right to defend against any charge by the introduction of
evidence, the right to be represented by counsel, the right to
present and cross-examine witnesses and the right to have
subpoenas and subpoenas duces tecum issued on his or her behalf
for the attendance of witnesses and the production of documents.
The board shall make all its final actions public. The order
shall contain the terms of all action taken by the board.
(i) In disciplinary actions in which probable cause has been
found by the board, the board shall
, within twenty days of the
date of service of the written notice of charges or sixty days
prior to the date of the scheduled hearing, whichever is sooner,
provide the respondent with the complete identity, address and telephone number of any person known to the board with knowledge
about the facts of any of the charges; provide a copy of any
statements in the possession of or under the control of the
board; provide a list of proposed witnesses with addresses and
telephone numbers, with a brief summary of his or her
anticipated testimony; provide disclosure of any trial expert
pursuant to the requirements of Rule 26(b)(4) of the West
Virginia Rules of Civil Procedure; provide inspection and
copying of the results of any reports of physical and mental
examinations or scientific tests or experiments; and provide a
list and copy of any proposed exhibit to be used at the hearing:
Provided, That the board shall not be required to furnish or
produce any materials which contain opinion work product
information or would be violative of the attorney-client
privilege. Within twenty days of the date of service of the
written notice of charges
, the board shall be required to
disclose any exculpatory evidence with a continuing duty to do
so throughout the disciplinary process. Within thirty days of
receipt of the board's mandatory discovery, the respondent shall
provide the board with the complete identity, address and
telephone number of any person known to the respondent with
knowledge about the facts of any of the charges; provide a list
of proposed witnesses with addresses and telephone numbers, to be called at hearing, with a brief summary of his or her
anticipated testimony; provide disclosure of any trial expert
pursuant to the requirements of Rule 26(b)(4) of the West
Virginia Rules of Civil Procedure; provide inspection and
copying of the results of any reports of physical and mental
examinations or scientific tests or experiments; and provide a
list and copy of any proposed exhibit to be used at the hearing.
(j) Whenever it finds any person unqualified because of any
of the grounds set forth in subsection (c) of this section, the
board may enter an order imposing one or more of the following:
(1) Deny his or her application for a license or other
authorization to practice medicine and surgery or podiatry;
(2) Administer a public reprimand;
(3) Suspend, limit or restrict his or her license or other
authorization to practice medicine and surgery or podiatry for
not more than five years, including limiting the practice of
that person to, or by the exclusion of, one or more areas of
practice, including limitations on practice privileges;
(4) Revoke his or her license or other authorization to
practice medicine and surgery or podiatry or to prescribe or
dispense controlled substances, for a period of up to ten years;
(5) Require him or her to submit to care, counseling or
treatment designated by the board as a condition for initial or continued licensure or renewal of licensure or other
authorization to practice medicine and surgery or podiatry;
(6) Require him or her to participate in a program of
education prescribed by the board;
(7) Require him or her to practice under the direction of
a physician or podiatrist designated by the board for a
specified period of time; and
(8) Assess a civil fine of not less than one thousand
dollars nor more than ten thousand dollars.
(k) Notwithstanding the provisions of section eight, article
one, chapter thirty of this code, if the board determines the
evidence in its possession indicates that a physician's or
podiatrist's continuation in practice or unrestricted practice
constitutes an immediate danger to the public, the board may
take any of the actions provided for in subsection (I) (j) of
this section on a temporary basis and without a hearing, if
institution of proceedings for a hearing before the board are
initiated simultaneously with the temporary action and begin
within fifteen days of the action. The board shall render its
decision within five days of the conclusion of a hearing under
this subsection.
(l) Any person against whom disciplinary action is taken
pursuant to the provisions of this article has the right to judicial review as provided in articles five and six, chapter
twenty-nine-a of this code: Provided, That a circuit judge may
also remand the matter to the board if it appears from competent
evidence presented to it in support of a motion for remand that
there is newly discovered evidence of such a character as ought
to produce an opposite result at a second hearing on the merits
before the board and:
(1) The evidence appears to have been discovered since the
board hearing; and
(2) The physician or podiatrist exercised due diligence in
asserting his or her evidence and that due diligence would not
have secured the newly discovered evidence prior to the appeal.
Except with regard to an order of temporary suspension of a
license for six months or less, A person may not practice
medicine and surgery or podiatry or deliver health care services
in violation of any disciplinary order revoking, suspending or
limiting his or her license while any such review is pending,
and no order shall be made or entered by the court to stay any
provisions of the disciplinary order while any such review is
pending. Within sixty days, the board shall report its final
action regarding restriction, limitation, suspension or
revocation of the license of a physician or podiatrist,
limitation on practice privileges or other disciplinary action against any physician or podiatrist to all appropriate state
agencies, appropriate licensed health facilities and hospitals,
insurance companies or associations writing medical malpractice
insurance in this state, the American medical association, the
American podiatry association, professional societies of
physicians or podiatrists in the state and any entity
responsible for the fiscal administration of medicare and
medicaid.
(m) Any person against whom disciplinary action has been
taken under the provisions of this article shall at reasonable
intervals be afforded an opportunity to demonstrate that he or
she can resume the practice of medicine and surgery or podiatry
on a general or limited basis. At the conclusion of a
suspension, limitation or restriction period the physician or
podiatrist may resume practice if the board has so ordered. the
physician or podiatrist has the right to resume practice
pursuant to the orders of the board: Provided, That for a
revocation pursuant to subsection (d) of this section a
reapplication may not be accepted for a period of at least five
years.
(n) Any entity, organization or person, including the board,
any member of the board, its agents or employees and any entity
or organization or its members referred to in this article, any insurer, its agents or employees, a medical peer review
committee and a hospital governing board, its members or any
committee appointed by it acting without malice and without
gross negligence in making any report or other information
available to the board or a medical peer review committee
pursuant to law and any person acting without malice and without
gross negligence who assists in the organization, investigation
or preparation of any such report or information or assists the
board or a hospital governing body or any committee in carrying
out any of its duties or functions provided by law, is immune
from civil or criminal liability, except that the unlawful
disclosure of confidential information possessed by the board is
a misdemeanor as provided for in this article.
(o) A physician or podiatrist may request in writing to the
board a limitation on or the surrendering of his or her license
to practice medicine and surgery or podiatry or other
appropriate sanction as provided herein. The board may grant
the request and, if it considers it appropriate, may waive the
commencement or continuation of other proceedings under this
section. A physician or podiatrist whose license is limited or
surrendered or against whom other action is taken under this
subsection has a right may at reasonable intervals to petition
for removal of any restriction or limitation on or for reinstatement of his or her license to practice medicine and
surgery or podiatry.
(p) In every case considered by the board under this article
regarding discipline or licensure, whether initiated by the
board or upon complaint or information from any person or
organization, the board shall make a preliminary determination
as to whether probable cause exists to substantiate charges of
disqualification due to any reason set forth in subsection (c)
of this section. If probable cause is found to exist, all
proceedings on the charges shall be open to the public who shall
be entitled to all reports, records, and nondeliberative
materials introduced at the hearing, including the record of the
final action taken: Provided, That any medical records, which
were introduced at the hearing and which pertain to a person who
has not expressly waived his or her right to the confidentiality
of the records, may not be open to the public nor is the public
entitled to the records.
(q) Notwithstanding any other provisions of this article,
the board may at any time, on its own motion, or upon motion by
the complainant, or upon motion by the physician or podiatrist,
or by stipulation of the parties, refer the matter to mediation.
The board shall obtain a list from the West Virginia state bar's
mediator referral service of certified mediators with expertise in professional disciplinary matters. The board and the
physician or podiatrist may choose a mediator from this list.
If the board and the physician or podiatrist are unable to agree
on a mediator, the board shall designate a mediator from this
listing by neutral rotation. The mediation shall not be
considered a proceeding open to the public and any reports and
records introduced at the mediation shall not become part of the
public record. The mediator and all participants in the
mediation shall maintain and preserve the confidentiality of all
mediation proceedings and records. The mediator may not be
subpoenaed or called to testify or otherwise be subject to
process requiring disclosure of confidential information in any
proceeding relating to or arising out of the disciplinary or
licensure matter mediated: Provided, That any confidentiality
agreement and any written agreement made and signed by the
parties as a result of mediation may be used in any proceedings
subsequently instituted to enforce the written agreement. The
agreements may be used in other proceedings if the parties agree
in writing to do this.
NOTE: The purpose of this bill is to lower the number of
settlements and judgments in malpractice actions which trigger
the board of medicine's investigations. It requires increased
reporting to the board from hospitals, managed care entities and
courts, of professional incompetence, impairment, substandard care and disciplinary activity. The statute is also changed to
remove the reference to "disability" in favor of "impairment" in
accordance with current law. It prohibits courts from staying
the board's disciplinary orders pending appeal, while permitting
the board to revoke a license for up to ten years. Finally, it
deletes a provision authorizing reapplication after conviction
of a drug felony which is in conflict with another section
prohibiting licensure of a person convicted of a drug felony.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
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