Senate Bill No. 445
(By Senator Snyder)
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[Introduced February 4, 2003; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend chapter twenty-nine of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article one-k; and to amend
and reenact
sections seven, nine and fourteen, article three,
chapter thirty of said code, all relating to creating a
legislative oversight commission on health care professionals
licensed in West Virginia; requiring the board of medicine to
submit an annual report to the Legislature and governor
detailing statistical information relating to physicians;
expungement of records maintained by the board; professional
discipline; changing number of judgments leading to
investigation; adding conviction of felony crime of violence
as basis for automatic revocation; and requiring hearing
within ninety days of charges.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article one-k; and that sections
seven, nine and fourteen, article three, chapter thirty of said
code be amended and reenacted, all to read as follows:
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 1K. LEGISLATIVE OVERSIGHT COMMISSION ON HEALTH CARE
PROFESSIONALS.
§29-1K-1. Senate oversight committee on health care professionals.
There is hereby established a standing committee of the Senate
of this state, to be officially known as the "Senate oversight
committee on health care professionals," and to consist of five
senators. The members and the chairman of this committee shall be
designated in the same manner as is customary in the case of the
members and chairmen of other standing committees of the Senate.
In addition to the regular members, the president of the Senate
shall be ex officio an honorary nonvoting member of this committee.
§29-1K-2. House oversight committee on health care professionals.
There is hereby established a similar standing committee of
the House of Delegates of this state, to be officially known as the
"House oversight committee on health care professionals," to
consist of five members of the House of Delegates. The members and
the chairman of this committee shall be designated in the same
manner as is customary in the case of the members and chairmen of other standing committees of the House of Delegates. In addition
to the regular members, the speaker of the House of Delegates shall
be ex officio an honorary nonvoting member of this committee.
§29-1K-3. West Virginia legislative oversight commission on health
care professionals.
There is hereby established the West Virginia legislative
oversight commission on health care professionals. This commission
shall be composed of ten regular members, namely:
The five members of the Senate oversight committee on health
care professionals; and
The five members of the House oversight committee on health
care professionals.
The president of the Senate and the speaker of the House of
Delegates shall be ex officio honorary nonvoting members of this
commission and as such shall serve as cochairmen thereof.
§29-1K-4. Terms of Senate and House committees.
The standing committee of the Senate and the standing
committee of the House of Delegates shall function during the
regular sessions of the Legislature and also during the interim
periods between sessions; their members shall serve until their
successors are designated.
§29-1K-5. Function of commission.
It is the function of this commission:
(1) To provide legislative oversight of all "health care professionals" licensed in this state, as that term is defined in
section one, article three-c, chapter thirty of this code;
(2) To perform such duties as from time to time may be
assigned to it by the joint committee on government and finance and
to cooperate with the joint committee on government and finance in
joint interim studies relating to health care, the professionals
who provide that care in this state and the citizens of West
Virginia;
(3) Propose rules in accordance with the provisions of article
three, chapter twenty-nine-a of this code to implement the
provisions of this article;
(4) To do all acts as will, in the opinion of this commission,
enable this state to provide reasonable and effective regulation of
the health care professions, protect the citizens of this state and
promote the public safety and welfare.
§29-1K-6. Commission may establish internal and adjunct bodies and
procedural rules.
The commission shall establish delegations, committees,
advisory boards and other internal and adjunct bodies designated
and titled by the commission to assist the commission in its
functions as it considers advisable. Members of the commission's
delegations, committees, advisory boards and other internal and
adjunct bodies shall be appointed by the chairperson of the
commission with the advice and consent of the commission and may include commission members, state officials and employees,
representatives of regulated health care professions and providers
and private citizens. The commission shall establish procedural
rules governing operations of the commission and membership and
operation of its internal and adjunct bodies.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-7. Powers and duties of West Virginia board of medicine.
(a) The board, in accordance with the provisions of this
article, shall administer and supervise examinations and determine
qualifications of applicants for licenses to practice medicine and
surgery and to practice podiatry, shall issue licenses to qualified
applicants and shall regulate the professional conduct and
discipline of such individuals. In carrying out its functions, the
board may:
(1) Adopt
such regulations as are necessary to carry out the
purposes of this article;
(2) Hold hearings and conduct investigations, subpoena
witnesses and documents and administer oaths;
(3) Institute proceedings in the courts of this state to
issue
and enforce
its subpoenas for the production of witnesses and
documents and
its orders and to restrain and enjoin violations of
this article and
of any regulations promulgated under it;
(4) Employ
investigators, attorneys, hearing examiners, consultants and
such other employees as may be necessary;
(5) Enter into contracts and receive and disburse funds
according to law;
(6) Establish and certify standards for the supervision and
certification of physician assistants;
(7) Authorize medical and podiatry corporations in accordance
with the provisions and subject to the limitations of section
fifteen of this article to practice medicine and surgery or
podiatry through duly licensed physicians or podiatrists;
(8) Establish a fee, not to exceed fifty dollars, for a
reciprocal endorsement; and
(9) Perform
such other duties as are set forth in this article
or otherwise provided
for in this code.
(b) The board shall submit an annual report of its activities
to the Legislature
and the governor. One copy of the current
annual report shall be provided, upon written request without
charge, to any media entity holding media credentials in the
current Legislature. The report shall include a statistical
analysis of complaints received, charges investigated, charges
dismissed after investigation, the grounds for each such dismissal
and disciplinary proceedings and disposition. Commencing in
January, two thousand four, the board shall include in its annual
report to the Legislature, on or before the first day of January of
each year, the following data:
(a) Itemized annual financial statement calculated and
formatted according to generally accepted accounting principles
(GAAP) by a certified public account (CPA) who certifies its
accuracy.
(b) Official directory of registered doctors of medicine,
doctors of chiropody/podiatry, physicians assistants, medical
corporations, professional limited liability companies, special
volunteer medical licenses, code for self-designation of practice
specialities.
(c) Within the directory, data for each regulated professional
or entity, as applicable; license number, license status, dates of
license issuance and expiration, full name, full mailing address,
type of practice, names of supervising physicians.
(d) Within the directory, data for each regulated
professional, the current year's and cumulative numbers of:
Complaints filed against; administrative disciplinary actions taken
against; civil malpractice actions filed against, and resolutions
by dismissal, settlement and judgment; dollar amounts of
malpractice judgments awarded against; nonmalpractice civil and
criminal actions filed against, and resolutions by dismissal,
settlement, judgment, plea or verdict.
(e) Statistics stating, within the state and each county
(based on the regulated professional's address of record), the
number of licensed professionals, by: Profession, type of practice or specialty, median and average years (duration) of licensure,
median and average ages of licensees and license status, being
active, inactive, temporary, lapsed, and other.
(f) Statistics stating, for the state and each county (based
on the county in which the physician performs such service), the
number of physicians doing locum tenens practice.
(g) Statistics stating, for the state and for each county
(based on the regulated professional's address of record), the
current year's and cumulative numbers, including total, median and
average, for all regulated professionals; administrative complaints
filed or originated against, and administrative resolutions by:
Mediated settlement and nonmediated settlement; consent order
without administrative hearing; board order without consent and
without administrative hearing; board order without consent and
with administrative hearing.
(h) Statistics stating, for the state and for each county
(based on the regulated professional's address of record), the
current year's and cumulative numbers, including total, median and
average: Disciplinary actions imposed; civil malpractice actions
filed against and resolutions by dismissal, settlement and
judgment; dollar amounts of malpractice judgments awarded against;
nonmalpractice civil and criminal actions filed against, and
resolutions by dismissal, settlement, judgment, plea or verdict.
(i) Listings stating for the state and for each county (based on the regulated professional's address of record), the numbers and
types of disciplinary actions imposed, by category set forth in
chapter thirty, article three, sections fourteen-j and fourteen-k
of this code.
(j) Listings stating for the state and for each county (based
on the regulated professional's address of record), the numbers of
and reasons for disciplinary actions imposed, by category set forth
in chapter thirty, article three, section fourteen-c of this code.
(k) Listings stating for the state and for each county (based
on the regulated professional's address of record), the numbers and
origins of administrative complaints, being: (a) Written complaint
signed and submitted by a member of the public who is or was the
patient involved in the alleged incident; (b) written complaint
signed and submitted by a member of the public who is or was not
the patient involved in the alleged incident; (c) verbal complaint
without written statement; (d) unsigned written complaint; (e) data
reported by the national practitioner data bank or other reporting
database (specified); (f) data reported by each reporting category
set forth in chapter thirty, article three, section fourteen-b of
this code; (g) independent initiation by the board as set forth in
chapter thirty, article three, section fourteen-a of this code; (h)
other.
(l) Statistics stating for the state and for each county
(based on the regulated professional's address of record), the current year's and cumulative, total, mean and median numbers of
regulated professionals who hold active licenses to practice in
West Virginia, and the same numbers of months in each year during
which those professionals actually practice (being more than
fifty-one percent of total practice time) in West Virginia.
(m) Statistics stating for the state and for each county
(based on the regulated professional's address of record), the
current year's and cumulative, total, mean and median numbers of
regulated professionals who carry malpractice insurance, and the
carriers of same.
(n) Statistics stating for the state and for each county
(based on the regulated professional's address of record), the
current year's and cumulative, total, mean and median dollar
amounts of annual malpractice insurance premiums paid.
(o) Listing by name of each regulated professional who does
not carry malpractice insurance.
(p) Statistics stating for the state and for each county
(based on the regulated professional's address of record), the
current year's and cumulative, total increase or decrease in
regulated professionals, by: Type of regulated practitioner (M.D.,
D.P.M., P.A.) and practice specialty.
(q) Statistics stating for the state and for each county
(based on the regulated professional's address of record), the
number of regulated professionals obtaining professional education credentials in the United States and obtaining professional
education credentials abroad.
(r) Statistics stating for the state and for each county
(based on the regulated professional's address of record), the
total, mean and median number of complaints and of disciplinary
actions imposed prior to licensure revocation and suspension.
(s) Listings stating, in relation to each administrative
disciplinary action, the complete style, a brief statement of the
question(s) before the board, ruling, and clear statement of
whether the board prevailed on each count.
(t) Statistics stating, in relating to each administrative
disciplinary action, the duration or pendency of the action, and
this year's and cumulative total, mean and median duration or
pendency of administrative actions.
(u) Listings stating, in relation to each administrative
disciplinary action, a clear and concise summary of the issue(s)
before the board, the hearing examiner's recommendation on each
issue, and the board's ruling on each issue.
(v) Statistics stating, in relation to each administrative
disciplinary action, the number of recommendations of the hearing
examiner accepted, rejected, and modified by the board.
(w) Listings stating, in relation to each licensure issue, a
clear and concise summary of the reasons for each licensure action
not otherwise protected by express statutory privilege or confidentiality accruing to the licensed professional, and the
number of licensure actions not reported by reason of statutory
privilege or confidentiality.
(x) Statistics stating for the state, the number of licensure
applicants, by: Application category, being application, renewal
application and reapplication; regulated profession, being M.D.,
D.P.M., and P.A., and specific results of such applications.
(y) Statistics stating for the state, this year's and
cumulative numbers of licensure application denials by specific
reason for denial.
(z) Listings stating, in relation to each civil action to
which the board was a party, the complete style including civil
action or case number and court, filing date of ruling or order,
brief statement of the question(s) before the court, ruling,
duration or pendency of action, and a clear statement of whether
the ruling is in favor of or against the board.
(aa) Listings stating, in relation to each civil action in
which the board was a plaintiff, petitioner or appellant or
otherwise initiated or pursued the action, the rationale or
justification for the board's decision to pursue the action beyond
the administrative level.
(bb) Detailed report on any and all cases in which the board
is a party, administrative and civil, pending longer than six
months.
(cc) Itemized statement of all legal time, fees and expenses,
incurred by in-house and outside counsel, showing total fees,
hourly or flat rates, and expenses for every administrative and
civil action to which the board is a party.
(dd) List of all outside counsel paid on a contract basis,
including: The function for which counsel is contracted. e.g.,
hearing examiner, consultant, representative counsel; term and
duration of contract; case(s) in which services are rendered;
rationale for contract and reason why this function cannot or
should not be performed by in-house counsel or the office of the
attorney general.
(ee) List of all cases in which the board or its members or
employees are represented by the board of risk management (BRIM),
including style and court, a concise statement of the grounds for
such action, pendency of action or court ruling.
(ff) Copies of the full text of all board actions.
(gg) Concise summary of each board action including the
precise issues before the board and board rulings on each issue and
sanctions imposed.
(hh) Copies of the full text of all minutes of all board
meetings, with all attachments and handouts.
(ii) Dated copies of all media releases issued by the board
and listing of media outlets receiving same.
(jj) Flow chart of licensure procedure.
(kk) Flow chart of complaint procedure.
(ll) Organizational charts of the board, its committees and
administrative structure, with names, titles and contact
information.
(3) The board shall maintain for public access and shall
provide to the legislative oversight commission on health care
professionals, and the commission shall maintain, a library of all
part, current and future volumes of the annual publication commonly
known as "West Virginia Board of Medicine Medical Practice Act and
Rules" that incorporates statutes and regulations pertaining to the
board and customarily has been printed by the board, and which
shall hereafter include additional law as follows: Chapter
twenty-nine-a of this code, "The State Administrative Procedures
Act"; chapter twenty-nine-b of this code, "The Freedom of
Information Act"; 42 USC Sec. 11101, "The Health Care Quality
Improvement Act of 1986", as amended, and regulations related
thereto, 45 CFR 60, pertaining to the national practitioner data
bank. At least fourteen hard copies of the current year's
publication shall be delivered to the commission each year.
(4) The board shall develop and implement means and methods of
data collection and reporting in order to comply with this article,
and shall make a written report of same to the commission on or
before the first day of July, two thousand three.
(5) On or before the first day of January of each year, commencing in two thousand three, the board's annual report to the
Legislature shall be submitted to the commission, and may be
transmitted by electronic means as directed by the commission. At
least fourteen hard copies shall be delivered to the commission.
All reports transmitted and delivered to the commission shall be in
addition to any other copies submitted to the Legislature.
(6) On or before the first day of January of each year,
commencing in two thousand three, the board's annual report to the
Legislature shall be submitted to the secretary of state for
filing.
§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 the 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 individual
historical record that pertains to him and that was not submitted
to the board by him.
(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 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 information within
two years eighteen months 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 the physician, podiatrist or physician assistant.
(2) Any voluntary agreement entered into pursuant to this
subsection
shall is not
be considered a disciplinary action or
order by the board and
shall is 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 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 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 is 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 in this section.
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
disclosure of any information pursuant to this provision
shall is
not
be considered a waiver of any such privilege in any other
proceeding.
§30-3-14. Professional discipline of physicians and podiatrists;
reporting of information to board pertaining to
medical professional liability 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 four
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 shall 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 If
copies are so provided, the subject physician or podiatrist is
allowed fifteen days to comment on the requested information and
such the comments must be considered by the board.
The chief executive officer of every hospital shall, within
sixty days after the completion of the hospital's formal
disciplinary procedure and also after the commencement of and again
after the conclusion of any resulting legal action, report in
writing to the board 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 that 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 professional
liability, 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 in this state which
provides a formal peer review process shall report in writing to
the board, within sixty days after the completion of any formal
peer review process and also within sixty days after the
commencement of and again after the conclusion of any resulting
legal action, the name of any physician or podiatrist whose
credentialing has been revoked or not renewed by the managed care
organization. The managed care organization shall also report in
writing to the board any other disciplinary action taken against a
physician or podiatrist relating to professional ethics,
professional liability, moral turpitude or drug or alcohol abuse
within sixty days after completion of a formal peer review process
which results in the action taken by the managed care organization.
For purposes of this subsection, "managed care organization" means
a plan that establishes, operates or maintains a network of health
care providers who have entered into agreements with and been
credentialed by the plan to provide health care services to
enrollees or insureds to whom the plan has the ultimate obligation
to arrange for the provision of or payment for health care services
through organizational arrangements for ongoing quality assurance,
utilization review programs or dispute resolutions.
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, medical professional liability, 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, including the state board of risk and insurance
management, shall submit to the board the following information
within thirty days from any judgment or settlement of a civil or
medical professional liability 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 the entry of an order by a court in a
medical professional liability action or other civil action wherein
a physician or podiatrist licensed by the board is determined to
have rendered health care services below the applicable standard of
care, the clerk of the court in which the order was entered shall
forward a certified copy of 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 medical professional liability 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.
An individual filing a report is not required to
sign a written complaint.
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 Controlled 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; or
(21) The inability to practice medicine and surgery or
podiatry with reasonable skill and safety due to physical or mental
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 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 crime of violence which is a felony
or 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 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 may not be required to
furnish or produce any materials which contain opinion work product
information or would be a violation 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.
A hearing must be held no later than ninety days after
charges are filed and this ninety-day deadline must be set forth
within the document filing the charges and citing this section.
(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 not to exceed 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 (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. 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
appeal 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.
(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 may, at reasonable
intervals, 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 may not be considered a proceeding open to
the public and any reports and records introduced at the mediation
shall may 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.
NOTE: The purpose of this bill is to create a legislative
oversight commission on all health care professions licensed in
West Virginia. It also requires the Board of Medicine to submit an
annual report to the Legislature and governor detailing statistical
information relating to physicians. The report is to include
information relating to claims and lawsuits filed against
physicians, the disposition of the claims and lawsuits, including
the dollar amounts in jury verdicts or settlements out of court.
The bill also deals with expungement of personal records maintained
by the board and reduces the time from two years to eighteen months
in which to institute disciplinary action before such records may
be expunged. It further deals with professional discipline,
changing number of judgments leading to an investigation, adds
conviction of felony crime of violence as basis for automatic
revocation and requires a hearing within ninety days of charges.
§§29-1K is new; therefore, strike-throughs and underscoring
have been omitted.
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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