*1 230 February of 1988 and ny arrearage held the stat- Bettinger, supra, this Court
v.
defen-
subsequent proceedings
of the financial
consideration
calls for
ute
contempt.
On re-
Syllabus
Point
parties.
dant was found
of the
resources
mand,
provide the circuit
Bettinger,
plaintiff
we stated:
should
14 of
at-
statement of her
with an itemized
court
W.Va.Code, 48-2-
purpose
“The
torney’s
resulting from the defendant’s
48-2-13(a)(6)(A)
fees
13(a)(4)
(1986),
[now
order
to follow the circuit court’s
failure
spouse
does not
who
] is to enable
can
others she
docu-
these incidents
obtain reim-
resources to
have financial
should then deter-
attorney’s
ment.
circuit court
fees
bursement
costs
en-
of the fees and
litiga- mine the reasonableness
during
of the
the course
[incurred]
accordingly.
v.
an
See Wood
ter
award
tion.”
(1991).
Wood,
744,
761
184
403 S.E.2d
W.Va.
Witts,
3,
190
Syl. Pt. Ball v.
W.Va.
In accord
(1993).
517,
860
438 S.E.2d
III.
Notwithstanding
less than
the defendant’s
below,
primary
our
focus
conduct
admirable
CONCLUSION
parties.
of the
is on the financial situation
reasons,
judgment
foregoing
For the
585,
Langevin
Langevin,
v.
See
County
Taylor
af-
the Circuit Court
(record
support
must
her fees. Under
order, cash she receive a sizable settle- will property the marital ment for her interest in 465 S.E.2d along post-judgment inter- with our award of M.D., MODI, Petitioner Shakuntala Accordingly, not find the circuit est. we do Below, Appellee, failing its discretion award court abused attorney’s plaintiff all her fees. However, plaintiff recover the should VIRGINIA BOARD OF WEST portion attorney’s fees incurred in her her MEDICINE, Respondent attempts the circuit to seek enforcement of Below, Appellant. below. It would be unfair to court’s orders No. 22792. plaintiff to pay force the for the fees result- Supreme Appeals Court of attempts ing from her to seek enforcement Virginia. orders when the defendant had clear duty legal abide orders. those Our Sept. Submitted 1995. two inci- review of the record shows least Decided Nov. plaintiff legal incur dents which the had to expenses force to abide the defendant existing then from the circuit regarding the alimo-
court —the held party porary awarding attorney to the fees and court and costs action whom relief payment may during behalf of such fees and costs be modified at time on whose action, appeal exigencies pendency as the costs was ordered. If stated, appeal equity justice may require, case or includ- taken or an intention to, party pay ing, but court further order either not limited modification which attorney appeal.” require partial repayment fees and costs on would full of fees *4 McCamic, Jolyon McCamic & MeCam- W. ic, Wheeling, Appellee. for Charleston, Rodeeker, Deborah Lewis Appellant.
ALBRIGHT, Justice: pro- This is a contested administrative case 29A-5-1, § ceeding seq., W.Va.Code et under by initiated of Medi- the West (the Board) pursuant disciplinary cine 30-3-14,1 authority against of W.Va.Code M.D., Modi, a Dr. psychiatrist. Shakuntala licensed in physician Modi is a West practice Wheeling. and is in a solo engaged 1. The which violations Dr. Modi was forth statutory provisions Notice of state license or other authorization to cine censed following (c) the board below; relevant who, The board discipline or Hearing surgeiy reasons: otherwise after as portions a a unqualified may deny are direct or hearing, recited physician podiatry lawfully practicing regulations here. has been due to quotations in this or charged application statute under podiatrist cited in the state adjudged are set in this of the of the medi- li- without first constitute another ten consent. ing any therapy ered capacity of medical structing Such quired (14) Performing any procedure mean reports [*] person as experimentation state or federal practice in the only a licensed obtaining sf: filing and records that, by to do those that are [*] of a full, physician report [*] on human as informed and writ- accepted community, law; are herein cov- [*] signed or record re- or or or podiatrist. foregoing. standards prescrib- inducing [*] subjects would in the state or federal knows failing Making [*] to be to file a false; [*] or law; report filing report [*] intentionally willfully or record [*] impeding that the [*] required negligently [*] person ob- tecum issued comply rule or order Hi Violating any provision 5ft subpoena [*] board. board, [*] subpoena of this [*] or failing article or [*] duces After disciplinary action. justifying grows of Dr. conduct out disciplinary proceeding and extensive manuevers lengthy procedural Abbott of William care and treatment examiner, C. Edward hearings, the as technique known use page report thirty-six by Goldberg, prepared Hearing prepared Notice Findings of Fact and Con- charged: of “Recommended on Dr. Modi the Board and served fully discussed of Law” which rather clusions therapy is not care Depossession 6. procedure, law and facts the issues of reasonable, by a recognized treatment case. same prudent physician engaged being acceptable under similar specialty FACTS UNDERLYING circumstances, and accord- conditions and report may From the ingly, Dr. Modi violated 1, 1990, 30-3-14(c)(17), regula- and Board that on June be ascertained Modi, 12.1(x), here, under- appellee 1A her care and Dr. Shakuntala tion 11 CSR in her office [Mr. Mr. Abbott complainant Abbott] took to treat William treatment According depossession therapy. use of June Modi, therapy involves depossession ther- use 7. Dr. Modi’s *5 to re- hypnosis hypnotherapy or the use of com- apy in her care treatment arising such of fears lieve individuals 1, 1990, medi- plainant on and in her June feelings they that individuals’ beliefs or perform- generally, constitutes practice cal Dr. Modi may possessed spirits. prescribing therapy procedures or ing depossession also testified that use accepted of medical that standards practitioner therapy imply that the does not community ex- practice in the constitutes possessed patient believes his her subjects perimentation on human without requires only prac- spirits, but full, obtaining written informed and first patient being treat- titioner conclude that consent, Dr. accordingly, Modi has pos- to be so ed believes himself or herself Virginia § Code 30-3- violated West sessed. 14(c)(14), (17), regulations 11 and Board 12.1(y). 1A
CSR session, It to this appears preparatory complain- billing Dr. 8. Modi’s proposed Dr. use Modi discussed insurer, Blue Cross Blue Shield ant’s had therapy hypnotist with who Virginia in Parkers- West Central accompa- had treated Mr. Abbott who rendered burg, for the care and treatment Dr. office and took nied Mr. Abbott to Modi’s 1,1990, her, complainant on to the June history complete from Mr. Abbott. a rather Modi falsely report filed which Dr. was a appears Modi not It that Dr. did further false, ther- depossession knew because with thoroughly therapy discuss the intended recog- psychotherapy not apy is a form Mr. a written consent Abbott obtain acceptable under similar condi- nized commencing therapy from him. After reasonable, by a and circumstances tions therapy Mr. depossession session with prudent physician, engaged the same Abbott, Dr. appears that Modi worked Dr. accordingly, Modi has specialty, and hours, utilizing patient for four about § 30-3- violated West Code hypnotherapy. Modi what Dr. described as 14(c)(5), (17), regulations and Board Abbott, According engaged to Mr. Dr. Modi 12.1(p). 1A CSR upon called an- in various incantations and body gels to lift dead out his depossession Dr. use ther- souls Modi’s therapy paragraph and her course of the extended session. apy, as set forth insurer, para- billing to the as set forth against Dr. complaint Mr. Abbott filed a unprofessional con- graph constitutes Modi with the West Board of Medi- duct, accordingly, Dr. Modi violat- depossession regarding cine his treatment. 30-3-14(c)(17) ed West Code complaint insti- Based on then 12.1(j). 1A regulation and Board 11 CSR present proсeeding, setting tuted forth above, charges quoted including the admitting the Dr. Modi filed an answer use charge improperly Dr. had therapy denying Modi billed depossession therapy billing pa- depossession company psycho- insurance $480.00 for the tient’s insurer service? fact, when, engaged in had therapy she found Modi violated 5.If it is that Dr. depossession particu- cited sections one or more hearing During proceedings before the lars, appropriate to be what is the sanction developed extensive evidence was examiner imposed? surrounding Dr. the circumstances regarding report, examiner con- his and, par- of Mr. Abbott treatment that the Board of Medicine had cluded here, importance question on the ticular charges by proof its burden establish accept- therapy was an whether “full, preponderating and clear evidence”. medical which would ed form of treatment Modi was He further concluded that Dr. consent or require informed experts who entitled to adduce evidence from treatment experimental it was an whether not licensed to medicine were require such a consent. which would on оf whether of the United States the issues therapy is form of legitimate THE BELOW DECISIONS thera- care and treatment whether such report described experimental. py is issues, be summa- five ultimate him, on the Based evidence before rized as follows: hearing examiner stated that the Board had us- 1. Did establish proved depossession therapy is indeed Abbott, Mr. ing depossession experimental and that Dr. had obtained Modi 30-3-14(c)(17) violated nor informed consent from neither written 12.1(x)2 Reg. a reason- and Board because patient. He further concluded *6 able, physician spe- prudent the same depossession therapy legit- Modi’s use of cialty recognize depossession not would treatment Dr. Modi imate care and for which being similar therapy acceptable as under patients entitled to bill and their insurers and conditions circumstances? that, consequently, billing to the the § 2. Dr. Modi Code 30-3- Did violate billing and carrier was not false insurance (17) 14(c)(14) 12.1(y) Reg. and Board Lastly, the unprofessional was not conduct. using experimental therapy without rejected pro- hearing parties’ examiner the full, obtaining a informed and written first posed findings of fact that were inconsistent lеngthy from Mr. discus- consent Abbott? these conclusions after a with evidentiary his various sion of the bases for § 30-3- 3. Did violate Code conclusions. (17) 14(c)(5), Reg. 12.1(p) by and Board report patient’s in- filing a false with the Having found that Dr. violated W.Va. Modi 30-3-14(c)(14) (17) carrier described her surance when she the use of Code depossession therapy psychother- use of as experimental therapy first obtain- without full, consent, when'depossession apy therapy is not rec- informed and ing a reasonable, physicians hearing examiner recommended to the ognized prudent by: public Dr. Modi be sanctioned specialty being acceptable same (2) being required undergo ad- reprimand to circum- under similar conditions and subject on the of-informed education ditional stances? $1,000.3 a civil fine of consent and unprofes- engage 4. Did Dr. Modi hearing conduct violation of 30-3- Upon sional submission of the examiner’s Board, 14(c)(17) 12.1(j) by using page order was Reg. report and Board to the twelve obtaining effectively preclude statutory provisions him from i for the relevant did not 2. See note examiner; hearing provid- the board alternative assistance from other health referred to ers, regulations quotes including psychiatrists hypnothera- cited are direct of the statuto- and/or ry provisions. they professional pists, after their terminated relationship, began on June and ended hearing Specifically, recom- 3. examiner clearly The record indicates that she mended: many patients.... is effective with of her however, revoked, is, reprimand public warranted license A Dr. Modi's should not be consent suspended. her failure to secure the informed Her with Mr. Abbott nor The Board excised other material. incorporated adding Board which issued report with extensive exam- twenty-one pages of examiner’s over expla- no order offers changes. The Board perhaps page report added iner’s changes were changes. The for those nation material.4 two of or- accomplished references order, conclusionary portion In report, excis- pages to der unqualified Modi is found that Dr. the Board by such references and material ing certain 4. As order we page Informed strikes and does not mented informed ginia aware of at this time”. quirement for written sentences, end of D. language beginning at B. Treatment on ending tion V. and incorrect modifications: Conclusions assessed.... patients undersigned therapy. the risks incident treatment. possession Hearing risks ingful appears understand, cation form deposscssion therapy, she must apy troversial area. did not when one therapy. sizes the required practice, doned. the course should py though sent Mr. Abbott her of Mr. Abbott indicated to him The Board strikes and does The [Tjhe Further, I would is considered examples of benefits, 30, “except incident law. There patients decision whether Board strikes prescribed this failure have Board ... quote with Examiner understand, especially need for informed it should not Informed Consent, further recommend There is "On therapy". sincerely it is the recommendation "time continuing It is the need to inform his participate of a practicing that a civil fine directly explained to as well of Law recommended page which this thereto. Even the adopts prior She insistence It is controversial, by many. Even the structure opportunity also that her form consent, was a on June following excerpts: to obtain beginning on practitioner’s unblemished Consent, other psychotherapy, hypnother- should also to the simply my opinion believe in the Board which little and the as the important testimony regarding adopt page It is not anticipated through through or not to as a in some form which is termed “de- informed factor.", Hearing Standard of Findings overlooked hand, Further, under the West Vir- does 1, 1990, upon question consent, especially commencement of with no such the informed con- pioneer in a con- risks, to make a mean- though Dr. Modi at that Modi be of not of the Board's page her the not page enough still not the Dr. that Dr. Modi undergo $1,000.00 the language psychothera- Examiner is on provide adopt of Fact and occurred consent explain Mr. incident to benefits of patients benefits of paragraph adopt Tinnin is following following 33 Care and page that she legal 9 at sec- empha- of edu- Abbott clearly Board at docu- fully the the her the re- on in- D. tent prompt and Conclusions ties, pected consistent findings Board of ed. clusions ble of remain silent because attached hereto and fied, circumstances Conclusions found in this Order poses ment. Rational, The ternatives consistent treat is the with the cоntraindicated. for which ble for the detriment has an ethical make choices from mendations tice. Informed consent is basic social mination thrust gation ly rent Judicial Affairs tient’s page exercised words ciation thereof the consent”. 32, information written documentation The Further, The Board 8.08 INFORMED CONSENT. "Further, to the reference patient paternalistic the same are patient that the same are inconsistent with these and consistent with the Opinions good Hearing such a serious [*] right of consenting (I, II, III, IV, "form specifically imminent; the set forth patient Medicine, informed on treatment. only with informed exceptions to the act after is unconscious patient’s present should medical words "informed consent”. patient the Code of Medical conclusions, [*] to enable an herein ... the adds at D. Examiner’s Recommendation is uniformly, if the strikes and does consent", self-decision of the American Medical obligation of Law submitted view that the agreeing management extent adopted Social patient first and make his or her own deter- or [*] patients should not be ex- states: the medical facts accurate- proposed to among and care consent.", practice. only patient paragraph are Council on Ethical V) psychological forego full harm Order, policy conversely, to Informed portion of informed [*] and make when risk-disclosure or *7 permitted and inserts in lieu even under similar individual good paragraph divulgence might intelligent otherwise can be the West findings possesses enough the the . [*] Findings help to be same physician’s needed from failure does not in accordance therapeutic al- physician refusing medical Findings are extent incorporated ending Ethics, Consent, effectively following: adopt medically physician generally threat responsi- The and con- therapy. [*] on incapa- of Fact recom- patient choice. accept reject- where speci- policy treat- Asso- prac- page obli- par- Cur- "the and ex- pa- of to court found that limita- abuse of discretion. The medicine certain practice without give had failed to a concise and the Board sanctions, respect the Board With tions. upon explicit statement facts which examiner’s recom- adopted order also based its decision. The court public a fine reprimand for a mendation supply reasons found that failed to expanded $1,000. adopted It also of rejecting findings Dr. Modi’s proposed for Final- education recommendation.5 upon the rejecting for fact and required order that Dr. Modi ly, the Board expert testimony offered determination par- approval obtain develop and persons of Dr. Modi other on behalf consent form of “informed” written ticular physicians licensed than therapy and that depossession for the use by the States should be considered United form, by any approved signed copy of the Further, court concluded Board. therapy, be undergoing depossession patient arbitrarily imposing the Board acted by Dr. bill sent submitted Modi with requirements regarding Dr. Modi the company therapy. for such insurance billing practices respect sent forms and with therapy.6 to the appealed Board order County. circuit Circuit Court Ohio appealed circuit The Board Medicine the Board order court reversed vacated order to this Court. Five errors are court’s arbitrary finding assigned, and an as follows: upon a it was case, Mary's regarding Hоspital St. v. State Health education reads nía 5. The Board’s Development Planning Agency, as follows: (1987). SE2nd case [sic] This education, program Respondent As explicit states that a concise and statement Report, study review The Belmont shall upon the facts which the Board reached its Principles for the Pro- and Guidelines Ethical given. any proposed should be Also decision Subjects Research of the tection of Human findings upon of the Petitioner should be ruled of Hu- National Commission for the Protection rejection a reason for their should be Subjects of and Behavioral man Biomedical requires given. articu- Research, Respondent and then shall devel- evidentiary facts late decision that contains the op utilize an consent form in her informed decision, that allowed the Board to reach its spirit practice of releasement W.Va.Code 29A-5-3. undergoing hyp- therapy, patients all case the Board to enumerate its In this failed prior notherapy sign under- will review and rejecting Petitioner’s reasons hypnotherapy. going form shall Such consent reasoning supply does and the Board enunciating provisions clearly the fact include Hearing acceptance rejecting the Examiner’s deposses- hypnotherapy may include testimony expert wit- therapy, spirit which is sion releasement reasoning supplied nesses. Nor is experimental, and risks associated that all the rejecting Hearing Examiners Board for it are not of the lack of known because finding report. Modi that Dr. did not file false consent scientific basis for such Such *8 holding depossession therapy was not In clearly any patient shall form enunciate experimental, the circuit court stated: undergoing responsible therapy will be expert [Dr. The Petitioner furnished Modi] payment any Respon- from the for bill testimony practitioners who stated Respondent’s and treatment dent for care billed, depossession therapy recognized form of regard, in this if an insurer hypnother- signed and that it is a method of copy treatment of the form shall be sub- consent Nevertheless, accepted apy any request pay- ... the Board to the insurer for mitted with physician, Hearing finding hypnother- Examiner’s that Petitioner’s ment and that therapy experimental apy was therefore it re- which includes the use of or spirit therapy, quired patient’s releasement if billed to an insur- consent. informed er, accurately requiring billed will be to the insurer On the arbitrariness of Dr. Modi insurers, depossession therapy spirit or releasement the court (cid:127)submit a written form to thirty therapy, psychotherapy. Within not as stated: Order, (30) days arbitrary of the such con- date of this for the to dictate that It is Board the Board for develop sent form shall submitted to [Dr. the Petitioner and use Modi] approval. its review and supplied written consent form be to insurers depos- payment sets for forth the use of 6. The court said: First, therapy, psychotherapy. not as session necessary written consent form is and sec- may modify reject no adopt, Board or attempting findings iner, Hearing the Board is to define how Exam- ond and conclusions of the 13,2. claims should be filed. This is matter between 11 CSR 3 Limitations on those Virgi- provider. important Board and the insurance actions are made in an underlying forth erred, which sets clearly late decision was 1. The Circuit Court law, its evidentiary led the Board to in de- facts which” applicable wrong, violated been suc- has not requirement in exercise was conclusions. ciding that the Board’s agree con- with the court below utilize a written We cessful. error that “that, complete of these in record engaging based on sent form when pa- Board ... therapy proceedings, spirit releasement the order or How- arbitrary of discretion.” and an abuse tients. ever, finding by the exam- given the erred, clearly was 2. The Circuit Court law, Dr. Modi used and the Board that iner applicable in di- wrong, violated obtaining a 14, 1993, without experimental January recting the Board’s consent, we vacated, signed, written and informed reversed Order be below, in addition that the court and determination conclude evidence absence evidentiary also reversing order.should have Court that the the Board the Circuit wrong. were the cause to the Board recon- made the Board remanded appropriate, and an of the issues sideration no determi- made 3. The Circuit Court Therefore, judgment renewable order. rights of Dr. the substantial nation that circuit court must be reversed and by the prejudiced Board’s Modi had been proceedings inferences, remanded further or cause findings, conclusions decision opinion. order, sistent with this a deter- in the absеnce of such erred, mination, clearly wrong, was law, applicable directing violation of FOR THE REVIEW STANDARDS 14, 1993, January Order be the Board’s approaching In the issues raised vacated. reversed and that in present appeal, the Court notes erred, clearly was 4. The Circuit Court Medicine, Virginia Berlow West law, applicable in di- wrong, violated (1995), we S.E.2d 14, 1993, January recting that the Board’s recently held that the West Admin vacated, as such Order be reversed Act, § 29A- Procedure W.Va.Code istrative public interest which direction is 5-1, seq., guidelines et establishes the required protect. by law is reviewing circuit courts deci followed erred, clearly The Circuit Court of Medicine. sions of the West law, by
wrong, applicable and violated issu- We said: opportuni- ing parte stay an ex without “Upon judicial review a contested case grant- ty for Board to be heard before under the West Administrative ing stay. Act, 29A, Chapter Procedure Article assignments support of those 4(g), the circuit court affirm Section errors, essentially the Board of Medicine agency or decision of the the order finding its was ade claims that the basis of proceedings. case for further remand the artiсulated, adequate quately that there was reverse, The circuit court vacate or shall findings, support its and that the evidence modify agency decision of the appropriate. it imposed (cid:127)sanctions which were rights petitioner if the substantial record, prejudiced because reviewing, petitioners been After this Court con- *9 inferences, findings, the administrative that the circuit court was correct cludes ‘(1) conclusions, In or order are: finding inadequate made find- decisions that the Board statutory pro- constitutional or of law. violation of ings of fact and incorrect conclusions (2) visions; statutory In that the or excess properly The court below concluded authority jurisdiction agency; requirement or billing imposed upon Modi or (4) (3) procedures; upon Made unlawful or arbitrary capricious and was done law, by Affected other error of or legal authority. We note here that a without reliable, Clearly wrong pro- of paste” exam- view the “cut and version of substantial on the report, the Board or- bative and evidence iner’s as amended record; Arbitrary der, capri- or or carefully repeatedly stud- whоle has been reasoned, of or characterized abuse discre- in an to discern “a articu- cious ied effort
239
Although
agency
does not
of dis
courts.
clearly
exercise
or
unwarranted
tion
2, Shepherds
extensively
proposed
Syllabus point
each
need
discuss
cretion.’”
Department
rulings
sufficiently
Fire
v. West
finding,
Volunteer
such
must be
town
Commission, 172
Rights
Human
Virginia
reviewing
a
that all
clear to assure
court
(1983).
627, 309 S.E.2d
findings
W.Va.
have
342
those
been considered
with, not
concealed.
dealt
overlooked or
concluded
We
Inc. v. West
findings
Service
based
mission,
282,
v. United
rant
that section
such
istrative
mistake
dence
Code
(1990).
S.E.2d 801
agency will
We
ings of
by any agency
such
shall
sions
guage,
may propose
conclusions of
findings
ruling
Every final order
280 S.E.2d
writing
findings
judicial
any final order or
accompanied by findings
Virginia
§ 29A-5-3
have also
the final order or
on a mistake
should not be
of law.
29A-5-3
proposed findings
of
agency supported by
Commission,
of fact made
shall be
fact,
Transportation
given
law, findings
on each
not be
or stated in the record and
(1971).
must be
interference.
if
Human
If
653
given
law.
this Court. West
requires
contrary
set forth in
disturbed
proposed,
accompanied
proposed
opрortunity
(1981);
of
prior interpretations
Accordingly, absent
contested
consideration
Prior to
clearly
702,
Human
law.
disturbed
154 W.Va.
or decision
decision
of fact
Rights
decision, any party
Union,
to the evidence
that:
an administrative
Billings v. Civil
Bloss
398 S.E.2d
fact and conclu-
on
all other
In other
finding.
substantial
wrong
statutory
by an admin
appeal
Rights
case shall be
Commission
shall include
conclusions,
&
167 W.Va.
rendering
except to
a concise
rendered
688, 178
fact and
to W.Va.
Dillard,
to war
appeal.
parties
words,
unless
Find-
Com
shall
lan-
evi
tions, particularly where
fully
fic matters are
construed
was evaluated.
sion
fact and
mine whether
conclusion, along
contemplates a
trary to the law and the evidence until
dentiary
there
dered
and shall
says:
nor the
scientific,
clusion is
knowledge
nomic or
and conclusions
such
agency policy
should
shall be
competence of
2. When
articulated bases
methodology by
which sets forth
time as the
evaluate
change.
In administrative
making appropriate findings
is a record
“Every
be an
Finally, we note
trial courts will
W.Va.Code
facts which
scientific
conclusions of
statistical,
predicated
writing
in areas
explаnation
W.Va.Code,
accompanied
from former
final order or decision ren-
agency in a contested case
properly
courts,
issue:
agency presents
agency
with an
data which
involving
law.
this
lead the
beyond
stated
economic
29A-5-3
upon
neither
agency
economic
regard
law____”
attempt
of the reasons for
decision was
-without
29A-5-3
appeals
underlying
articulate
practice,
explanation
this
any complex,
in the record
complex
agency
a court can-
findings
determina
if the con-
this
change of
or scienti
Court
to deter-
evidence
peculiar
the law
require
proper
expert
where
[1964]
Court
there
to its
deci-
eco-
fact
evi-
underlying
explicit
statement of the
points 2 and
Bank
Syllabus
Citizens
supporting
findings____
facts
Banking
v. West
Weirton
Institutions, 160
and Financial
W.Va.
statutory
examining
After
enact
(1977).
233 S.E.2d
ment,
concluded,
syllabus point
this Court
Hospital
Mary’s
Health
of St.
State
ERRORS OF
BELOW
LAW
Agency,
Planning
Development
*10
(1987):
792,
that the substantial
El-Bash,
(1982),
by
in this
prejudiced
the Board order
and Adams
W.Va.
been
requirement
(1985),
con-
relying
presence
on the
proceeding,
It does copy previ- fully implications ing therapy of a a the to the failed consider consent form signed that the written requirement ously informed consent form approved might that panoply of information record, the contain by subject patient. the From the we full, necessary to a in- to be be considered Medicine, having glean that the Board of to perhaps failed consid- formed consent disapproved acceptable the as an patients fully variety of how the wide er treatment, rejected having form of “experimental” proce- likely undergo an to contrary the exam- experts to might brought in the future be best dure law, contrary having iner’s to advice anticipated of the appreciation to a suitable therapy experimental, declared particular experimen- a risks and benefits of practitioners of prevent wished the thera- to procedure. Mindful that the resolution of tal py being paid by from insurance carriers for complex questions involves is- such difficult However, we also note from go patient and treatment which sues of care did reсord that Board Medicine “depossession beyond question of far prohibit to Dr. Modi from undertake therapy”, proper determination we leave using speci- therapy; the Board rather of the consent form of the contents preparation of fied certain education and the Having in for consideration on remand. discussed, just thereby forms consent that have rapid mind the advances been acknowledging right implicitly least years, science in recent we made medical procedure in her Dr. Modi to utilize the could have a caution the determination practice. The court found the Board’s below might on what be consid- significant impact requirement consent form be sub- “experimental” procedures in the future ered arbitrary. mitted We to an insurance carrier consideration, and, may mark- absent careful 3—14(i) agree. sets West Code 30— for “in- edly expand legal requirements by may imposed forth the sanctions which time, At this we defer to formed consent”. physician. Af- upon Board of Medicine agency to created consider the administrative reviewing statutory language, this ter profes- issues of the medical those on behalf Legislature that the Court cannot conclude ranging implications of Given the wide sion. any manner Board authorized determination, may appropriate it such a in the man- regulate or intervene Medicine address this of Medicine to for Board pro- ner the Board order in the regulation of a rather directed matter issuance for physicians it confined cir- bill insurers dealing than cess cumstances of a contested administrative treatment.11
proceeding. complains the re- Finally,
Next, versal vacation of the order require we address clearly wrong as not in the of Medicine was ment of Dr. Modi submit 3—14(i) (4) provides: Revoke his license or other authorization 30— surgery podiatry practice or medicine (i)Whenever person unqualified it finds dispense prescribe or controlled sub- or grounds because set forth stances; (c) section, the board subsection care, (5) Require him counsel- to submit imposing or more of the enter order one ing designated as a or treatment board following: for initial or continued licensure or condition (1) Deny application a license or oth- his other authorization renewal of licensure or practice medicine аnd sur- er authorization to practice surgery podiatry; medicine or podiatry; gery or (6) program Require participate him in a public reprimand; board; Administer prescribed education (3) Suspend, his or limit or restrict license (7) Require practice di- him to under the medicine and other authorization physician podiatrist designated rection of a time; surgery podiatry for than five period not more specified the board limiting years, including practice of of, to, person by the one or more exclusion of not less than one Assess civil fine including than practice, areas of limitations on dollars nor more ten thousand thousand practice privileges; dollars. is its enunciation in this makes to the law clear As we noted public interest.12 departs its Medicine when the Board of ample had reason opinion, court below fact However, findings of Medicine. the Board of reverse law, craft clusions of must disapproved the vacation we have of its articulate statement pro- gives further in this case without Board order reasons.1 we have addressed ceedings. Specifically, *14 reconsid- necessity that issues be certain manner in which inarguable that the It one of determined that at least ered and have it fashioned made the Board’s order was inap- imposed Dr. Modi is the sanctions on reasoning. their impossible almost discern appear upon recon- propriate. It also result, I am unable to conclude As that the issues as directed here sideration of order, majority, did that that as remaining are of the sanctions one or more arbitrary capricious on Board was inappropriate. also merits; majority agree but I be so the Board stated, the matter should remanded judgment of
For the reasons
a rea-
might
opportunity
an
to craft
County
have
affirmed
the Circuit
of
Court Ohio
soned,
order
us to review.
articulate
part
part.
This case
and reversed
proceedings
for further
consistent
remanded
However,
points of
several
clarification
remand,
opinion. Upon
the West
with this
made.
need
Virginia
of
shall undertake
Board Medicine
First,
emphasized
it should
may be
of the issues as
such reconsideration
majority
way
deposses-
in no
ratified
opinion
any subsequent
appropriate and render
recognized
theraрy as a valid treatment
sion
decision,
articulate
accom-
reasonable,
prudent physicians in the
by appropriate findings
fact and
panied
accepted
specialty
being
as
an
treat-
same
of law.
conclusions
ment.
part;
part;
Affirmed in
reversed in
Second,
majority
concludes that
remanded with directions.
“erroneously
Board of Medicine
refused
consider,
value,
probative
for whatever its
RECHT, J., deeming
disqualified,
himself
testimony
the otherwise admissible
of ex
participate
did
not
consideration
perts supportive Dr.
of Modi’s assertion
decision of this case.
depossession therapy
recognized
is a
form
WORKMAN, J.,
and reserves the
concurs
(Foot
experimental.”
is not
treatment and
right
concurring opinion.
to file a
omitted).
conclusion,
arriving
note
at this
correctly
majority
states
we
WORKMAN, Justice, concurring:
recently
that Rule 702
the West
declared
paramount
Albright
Virginia
is in
is the
Justice
what
Rules
Evidence
authority
many respects
opinion. Perhaps
governing
of the
excellent
the issue
admissi
important
opinion bility
expert testimony.
Mayhorn
See
v.
the most
contribution the
Comm'n,
237,
assign
grant by
Virginia
Appellants
error the
Civil Serv.
178 W.Vа.
12.
West
stay,
(1987);
2,
preliminary injunction
Court
of a
Syl.Pt. Vosberg v.
below
245 Comm’n, Found., 314, Rights 454 Human 431 Logan 193 W.Va. W.Va. 42, Medical 1, However, (quoting Syl.Pt. or- (1994). S.E.2d West Board’s S.E.2d 87 they Rights on whether reversed Human Comm’n United der is silent Union, Transp. examiner on issue admissi- No. Local W.Vа. (“ (1981)) bility questionable experts, whether 280 S.E.2d they give any simply credence Rights chose Human Commission’s of fact remand, this “expert” opinions. On by reviewing their if should be sustained courts clarified. The Board should should be they supported by substantial evidence ”). opportunity to make a clear least have unchallenged parties.’ or are issue before this Court conclusion concept Applying the above-mentioned has) (as majority law the rules as matter of case, present apparent becomes testimony question that the admissible examiner listened to witnesses’ under Rule testimony on both sides of the issue concern *15 Third, reasoning experi majority ing the the of whether is finds in determining evaluating in the treatment mental in nature before that evi finding question experimental by the dence the treatment to be “flawed Moreover, give any experimental. the Board had failure of the Board to consideration the opportunity Modi’s to the substantial to the evidence adduced review evi experts presented hearing of make to failure the Board to dence the examiner the appropriate findings upholding hearing finding. of and cоnclusions the fact Here, however, Consequently, findings of the Board did not said should be sus law[.]” Court, findings hearing hearing the tained this since the are reverse examiner. By supported did and consider the testimo- substantial evidence. di examiner admit issue, ny experts, yet recting of Dr. the Board to re-examine this concluded prin to experi- majority uphold precise the issue the fails the treatment at constituted agreed. reviewing ciple The Board it has established for courts mental to utilize in cases where Thus, why majority it is difficult to see unquestionably supported substantial evi segment of the Board’s or- reversed clearly dence. See id. This does not consti der, and even more difficult understand we tute kind deference said why majority issue directs that entire exper should be shown the law to the under experimental whether treatment tise of both the examiner and the re-opened and Rather re-determined. 3, Syl. See Pt. Board below. Citizens Bank majority guided by the should have been Virginia Banking v. West Bd. of Weirton we following principle well-established which Insts., 220, Fin. 233 S.E.2d consistently context other used (1977). 719 appeals: administrative Fourth, majority expresses itself lack reviewing court must evaluаte the ‘[A] understanding why ex- proceeding agency’s deter- record court aminer and circuit concluded that mine whether there is evidence on necessary, light no written consent was support agency’s as a record whole 30-3-14(c)(14), expressly which W.Va.Code pur- decision. The evaluation is conducted “full, requires informed written consent.” body’s findings suant to the administrative added). majority goes (emphasis Yet Id. fact, regardless of court whether the offering for on to criticize no would have reached different conclusion “by explanation might for its which we action (Citation omitted.)’ on the same facts. enlightened.” rather Here seems obvi- 390, CDS, 392, 438 190 Camper, Inc. v. W.Va. that the Board looked the statute and ous 570, (quoting 572 Frank’s Shoe S.E.2d followed it. Rights Human Store West Fifth, Comm’n, 53, 56, respond gratuitous I must S.E.2d W.Va. (alteration (1986)) majority offered original); “guidance” ac with re- not proper Syl.Pt. spect to the contents and form of a cord Morris Memorial Convales Home, full, Nursing informed and written consent. The ma- cent Inc. v. West 14(i). majority opinion. supra note 11 of See acknowledges that resolution of jority in- stated, of such a consent directing of the content in which issue the method Simply patient care and complex issues of volves an insurance carrier physician must bill treatment, might yet suggests that the Board under an available sanction matter the issuance deal with this better 30-3-14(i), deter- where the Board regulation than in a contested rather Virginia Code that a violation of West mines majority’s proceeding. administrative 30-3-14(c)(5) occurred. seems, however, bode reasoning own disagree I with some Consequently, while rapid approach. Given against such an years, reasoning in recent at least one majority’s advances medicine questions, of individual medical complexity (relating primary of their bases reversal (with majority and the obvious tenor experimental the issue of treatment concur) be at I that medicine must consent), be- opinion I concur alternative, even ex- willing least consider give a cause I believe the failed approaches in deter- therapeutic perimental, the reasons articulate statement of treat- mining acceptable is not what conclusions, findings and its amended ment, regulation that would the creation of a to do required it should be so. consti- effеctively the issue what resolve every full informed consent context tutes a impossible task. would be almost
Lastly, majority’s I address the conclusion arbitrarily imposed the re- any in-
quirement that Dr. Modi submit to patient undergoing carrier de-
surance for copy
possession therapy a signed approved informed consent form S.E.2d 246 subject patient. I agree While that, VOELKER, conclusion, majority’s clarify I Pamela J. Administratrix want to remand, again if determined it once Estate Blake Andrew Weisen experimental, Dr. Modi’s treatment Below, burg, Appellant, Plaintiff reasonable, re- recognized and not one specialty, sponsible physicians in the same might be within its then the Board well The FREDERICK BUSINESS PROPER authority billing an insur- determine Joseph COMPANY and Vincent TIES company psychotherapy could con- ance Root, Sr., Below, Appellees. Defendants § 30- stitute a violation West Code 3-14(c)(5), for disci- could be No. 22865. plined. Specifically, Virginia Code West 30-3-14(c)(5) pertinent provides, Supreme Appeals Court part, Virginia. West may discipline physician board ... “[t]he Sept. Submitted 1995. lawfully practic- ... licensed otherwise who, ing hearing, in this state after a Decided Nov. adjudged by unqualified the board been following ... due to reasons: (5) Making filing report per- (i.e. filing knows to false a claim [ son psychotherapy legal after a determina-
tion has been made
therapy not fall experimental does psycho- accepted
within the definition of
therapy) ]---- Thus, discipline could
Id. conduct; however, Modi for such the sanc- must discipline
tion for such fall within
provisions of 30-3-