H. B. 2044
(By Delegate Warner)
[Introduced February 12, 1997; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to amend and reenact sections one, four, five, six and
fourteen, article three, chapter thirty of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating to the West Virginia medical practice act;
requiring certain members of the board of medicine practice
primary care medicine; increasing the board members' per
diem from one hundred dollars to two hundred dollars;
changing the board of medicine quorum requirement and voting
majority requirement; manner of investigations; amending the
assessment of costs and fees by the board; and providing
recovery of fees by persons against whom hearings are
conducted in certain instances.
Be it enacted by the Legislature of West Virginia:
That sections one, four, five, six and fourteen, article
three, chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted,
all to read as follows:
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-1. Legislative findings.
The Legislature hereby finds and declares that the 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.
The Legislature finds that West Virginia continues to enjoy
the benefits of dedicated and hard-working medical professionals
in a time of some uncertainty in the health care delivery system;
that it is more important than ever to have the cooperation and
input of actively practicing physicians in the licensing and
disciplinary processes; that it is vital to continue to refine
the licensing and disciplinary processes in order to assure that
those who are demonstrably unsuited to medical practice are not
in medical practice; and that it is further highly desirable that
disciplinary sanctions not be sought without just cause against
physicians and other health care professionals, inasmuch as the
investigation and hearing processes are highly disruptive to and
have an adverse impact on the practices of any physician subject
to those processes, even where the physicians are exonerated, thereby in turn adversely affecting the availability of vital
health care services to the citizens of West Virginia.
§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.
(6) "Primary care physician" means a generalist physician
holding the degree of doctor of medicine or doctor of podiatric
medicine who is specifically trained to provide primary care
services and who provides definitive care to the undifferentiated
patient at the point of first contact and takes continuing
responsibility for providing the patient's care; who devotes the
majority of his or her practice to providing primary care
services to a defined population of patient's medical and health care needs, not limited by problem origin, organ system, gender
or diagnosis; and who acts as the advocate for the patient in
coordinating the use of the entire health care system to benefit
the patient.
§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 and of
those eight, at least two shall be primary care physicians; and
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. 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
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 is a member of any
political party executive committee or, with the exception of the
state director of health, who 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 two 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.
A majority of the membership Ten members 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 seven members or a two-thirds majority vote of
those present, whichever is greater.
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.
§30-3-14. Professional discipline of physicians and
podiatrists; reporting of information to board pertaining to professional malpractice and professional incompetence required; penalties; grounds for license denial and discipline of physicians and podiatrists; investigations; physical and mental examinations; hearings; sanctions; summary sanctions; reporting by the board; reapplication; civil and criminal immunity;
voluntary limitation of license; probable cause determinations.
(a) The board may independently initiate disciplinary
proceedings as well as initiate disciplinary proceedings based on
information received from medical peer review committees,
physicians, podiatrists, hospital administrators, professional
societies and others.
The board may initiate investigations as to professional
incompetence or other reasons for which a licensed physician or
podiatrist may be adjudged unqualified if the board receives
notice that, within the most recent five-year period, five or
more judgments or settlements in excess of fifty thousand dollars
each arising from medical professional liability have been
rendered or made against such physician or podiatrist. The mere
existence of such judgments or settlements may not be considered
as evidence of professional incompetence, and the underlying
facts of each judgment or claim must be examined and considered
by the board without regard to the action taken or decisions made
in suits by courts or in claims by the physician or podiatrist,
or physician's or podiatrist's insurance carrier or attorney.
(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 the
action. The chief executive officer shall also report any other
formal disciplinary action taken against any physician or
podiatrist by the hospital upon the recommendation of its medical
staff relating to professional ethics, medical incompetence,
medical malpractice, moral turpitude or drug or alcohol
abuse. Temporary suspension for failure to maintain records on
a timely basis or failure to attend staff or section meetings
need not be reported.
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 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 action or of any claim involving the
insured: The date of any judgment, dismissal or settlement;
whether any appeal has been taken on the judgment, and, if so, by
which party; the amount of any settlement or judgment against the
insured; and such other information as the board may require.
Within thirty days after a person known to be a physician or
podiatrist licensed or otherwise lawfully practicing medicine and
surgery or podiatry in this state or applying to be so licensed
is convicted of a felony under the laws of this state, or of any
crime under the laws of this state involving alcohol or drugs in
any way, including any controlled substance under state or
federal law, the clerk of the court of record in which the
conviction was entered shall forward to the board a certified
true and correct abstract of record of the convicting court.
The abstract shall include the name and address of such the
physician or podiatrist or applicant, the nature of the offense
committed and the final judgment and sentence of the court.
Upon a determination of the board that there is probable
cause to believe that any person, partnership, corporation, association, insurance company, professional society or other
organization has failed or refused to make a report required by
this subsection, the board shall provide written notice to the
alleged violator stating the nature of the alleged violation and
the time and place at which the alleged violator shall appear to
show good cause why a civil penalty should not be imposed. The
hearing shall be conducted in accordance with the provisions of
article five, chapter twenty-nine-a of this code. After
reviewing the record of such the hearing, if the board determines
that a violation of this subsection has occurred, the board shall
assess a civil penalty of not less than one thousand dollars nor
more than ten thousand dollars against such the violator. Anyone
so assessed shall be notified of the assessment in writing and
the notice shall specify the reasons for the assessment. If the
violator fails to pay the amount of the assessment to the board
within thirty days, the attorney general may institute a civil
action in the circuit court of Kanawha County to recover the
amount of the assessment. In any such civil action, the court's
review of the board's action shall be conducted in accordance
with the provisions of section four, article five, chapter
twenty-nine-a of this code.
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 person amounts to professional malpractice or professional incompetence. Prior to initiating any
investigation, the board or its staff must ascertain from the
person reporting such facts or otherwise that: (1) The facts are
reliable; and (2) that the full circumstances of the relationship
between the person making the report and the physician or
podiatrist subject of the report are disclosed, including, but
not limited to, any facts concerning economic or professional
competition between the person making the report and the
physician or podiatrist subject to the report.
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 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
the interest to the patient. Such The written disclosure shall
indicate that the patient may choose any clinical laboratory for
purposes of having any laboratory work or assignment performed or
any pharmacy for purposes of purchasing any prescribed drug or
any other medical goods or devices used in connection with
medical or other health care services.
As used herein, "proprietary interest" does not include an
ownership interest in a building in which space is leased to a
clinical laboratory or pharmacy at the prevailing rate under a
lease arrangement that is not conditional upon the income or
gross receipts of the clinical laboratory or pharmacy.
(8) Exercising influence within a patient-physician
relationship for the purpose of engaging a patient in sexual
activity.
(9) Making a deceptive, untrue or fraudulent representation in the practice of medicine and surgery or podiatry.
(10) Soliciting patients, either personally or by an agent,
through the use of fraud, intimidation or undue influence.
(11) Failing to keep written records justifying the course
of treatment of a patient, such the records to include, but not
be limited to, patient histories, examination and test results
and treatment rendered, if any.
(12) Exercising influence on a patient in such a way as to
exploit the patient for financial gain of the physician or
podiatrist or of a third party. Any such influence includes, but
is not limited to, the promotion or sale of services, goods,
appliances or drugs.
(13) Prescribing, dispensing, administering, mixing or
otherwise preparing a prescription drug, including any controlled
substance under state or federal law, other than in good faith
and in a therapeutic manner in accordance with accepted medical
standards and in the course of the physician's or podiatrist's
professional practice: Provided, That the board's monitoring of
the appropriate usage of prescription drugs and controlled
substances to prevent their abuse and diversion shall be
carefully balanced with the express societal need that the board
not exert a chilling influence on the appropriate prescription of
analgesics for acute or chronic pain, nor on the appropriate
usage of psychotropic mediation. In each case, the careful use of publicly developed, scientifically based and appropriately
updated clinical practice guidelines should be the basis for
judgments made by the board. Where the guidelines cannot be
developed, due to areas of legitimate medical uncertainty or
divergence of opinions, the board should not seek to discipline
by its opinion over the legitimate opinions of others.
(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
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 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 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 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 control,
such the failure or refusal is prima facie evidence of his
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
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 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 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 license or other
authorization to practice medicine and surgery or podiatry for
not more than five years, including limiting the practice of such
the person to, or by the exclusion of, one or more areas of
practice, including limitations on practice privileges;
(4) Revoke his license or other authorization to practice
medicine and surgery or podiatry or to prescribe or dispense
controlled substances;
(5) Require him 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 to participate in a program of education
prescribed by the board;
(7) Require him 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 more 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 not practice medicine and surgery or podiatry or
deliver health care services in violation of any disciplinary
order revoking or limiting his 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 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 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 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 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 right to the confidentiality of such the records,
shall not be open to the public nor is the public entitled to
such the records.
(p) If the board finds that a complainant or person making
a report as provided by subsection (a) of this section has acted
in bad faith or maliciously or exclusively for a financial motive
or financial gain in bringing a complaint or making a report
subsequently found to be frivolous or without a basis in fact or
without a reasonable belief at the time of making the complaint
or report that the complaint or report was based in fact, or if
that person or the person making the report discovers after
making the report that the complaint or report is without a basis
in fact and that person fails to report this subsequent
information or belief to the board in a reasonably timely
fashion, the board may assess against the complainant or person
making the report the actual costs of the hearing, consisting of
the board members' per diem and court reporter's fees, and
further assess in favor of the physician or podiatrist who is the
subject of the complaint or report and against the complainant or
person making the report the physician's or podiatrist's actual
costs in the defense of the complaint or report, including actual
attorney's fees. If a court of competent jurisdiction finds that
the board has acted in bad faith or maliciously or without
probable cause in initiating a hearing against a physician or podiatrist, the court shall assess in favor of the physician or
podiatrist who is the subject of the hearing and against the
board, but not the members thereof individually, the physician's
or podiatrists actual costs in the defense of the complaint or
report, including actual attorney's fees.
NOTE: The purpose of this bill is to amend the West
Virginia medical practice act; require certain members of the
board of medicine practice primary care medicine; increase the
board members' per diem from one hundred dollars to two hundred
dollars; change the board of medicine quorum requirement and
voting majority requirement; change the manner of investigations;
amend the assessment of costs and fees by the board; and provide
recovery of fees by persons against whom hearings are conducted
in certain instances.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.