H. B. 2643
(By Mr. Speaker, Mr. Kiss and Delegates Pulliam,
Warner, Ashley and Walters)
[Introduced January 14, 1998; referred to the
Committee on Government Organization then Finance.]
A BILL to amend and reenact sections one, two, four, 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; and to further amend said article by
adding thereto a new section, designated section eighteen,
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; changing
procedures for conducting hearings of complaints, reporting
of certain actions and providing recovery of fees in certain
instances; and providing that prescription in excess or
recommended dosage in certain cases is not a violation of
article three.
Be it enacted by the Legislature of West Virginia:
That sections one, two, four, 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; and that said article be further amended
by adding thereto a new section, designated section eighteen, all
to read as follows:
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
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.
§30-3-4. Definitions.
As used in this article:
(1) "Board" means the West Virginia board of medicine
established in section five of this article. Whenever any other
provision of this code refers to the "medical licensing board of
West Virginia," such reference shall be construed to mean and
refer to the "West Virginia board of medicine" as created and
established in this article.
(2) "Medical peer review committee" means a committee of, or
appointed by, a state or local professional medical society, or a
committee of, or appointed by, a medical staff of a licensed
hospital, long-term care facility or other health care facility,
or any health care peer review organization as defined in section one, article three-c of this chapter, or any other organization of
professionals in this state formed pursuant to state or federal
law and authorized to evaluate medical and health care services.
(3) "Practice of medicine and surgery" means the diagnosis or
treatment of, or operation or prescription for, any human disease,
pain, injury, deformity or other physical or mental condition.
(4) "Practice of podiatry" means the examination, diagnosis,
treatment, prevention and care of conditions and functions of the
human foot by medical, surgical and other scientific knowledge and
methods; and medical and surgical treatment of warts and other
dermatological lesions of the hand which similarly occur in the
foot. When a podiatrist uses other than local anesthesia, in
surgical treatment of the foot, such anesthesia must be
administered by, or under the direction of, an anesthesiologist or
certified nurse anesthetist authorized under the state of West
Virginia to administer anesthesia. A medical evaluation shall be
made by a physician of every patient prior to the administration
of other than local anesthesia.
(5) "State director of health" means the state director of
health or his or her designee, which designee shall act as
secretary of the board and shall carry out any and all
responsibilities assigned in this article to the secretary of the
board.
§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.
(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 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 one thousand
nine hundred ninety-nine, 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 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. 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 can resume the competent practice of medicine
and surgery or podiatry with reasonable skill and safety to
patients. In any proceeding under this subdivision, neither the
record of proceedings nor any orders entered by the board shall be
used against the physician or podiatrist in any other proceeding.
(d) The board shall deny any application for a license or
other authorization to practice medicine and surgery or podiatry
in this state to any applicant who, and shall revoke the license
of any physician or podiatrist licensed or otherwise lawfully
practicing within this state who, is found guilty by any court of
competent jurisdiction of any felony involving prescribing,
selling, administering, dispensing, mixing or otherwise preparing
any prescription drug, including any controlled substance under
state or federal law, for other than generally accepted
therapeutic purposes. Presentation to the board of a certified
copy of the guilty verdict or plea rendered in the court is
sufficient proof thereof for the purposes of this article. A plea
of nolo contendere has the same effect as a verdict or plea of
guilt.
(e) The board may refer any cases coming to its attention to
an appropriate committee of an appropriate professional
organization for investigation and report. Any such report shall
contain recommendations for any necessary disciplinary measures
and shall be filed with the board within ninety days of any such
referral. The recommendations shall be considered by the board
and the case may be further investigated by the board. The board after full investigation shall take whatever action it deems
appropriate, as provided herein.
(f) The investigating body, as provided for in subsection (e)
of this section, may request and the board under any circumstances
may require a physician or podiatrist or person applying for
licensure or other authorization to practice medicine and surgery
or podiatry in this state to submit to a physical or mental
examination by a physician or physicians approved by the board.
A physician or podiatrist submitting to any such examination has
the right, at his 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. 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.
§30-3-18. Prescription in excess of recommended dosage in
certain cases.
In the case of a patient with intractable pain, a physician
may prescribe a dosage in excess of the recommended dosage of a
pain relieving agent if he or she certifies the medical necessity
for the excess dosage in the patient's medical record. Any person
who prescribes, dispenses or administers an excess dosage in
accordance with this section may not be in violation of the
provisions of this article because of an excess dosage, if an
excess dosage is prescribed, dispensed or administered in good
faith for accepted medicinal or therapeutic purposes.
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; provide recovery of fees in certain instances; and provide
that prescription in excess or recommended dosage in certain cases
is not a violation of article three.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.
§30-3-18 is new; therefore, strike-throughs and underscoring
have been omitted.