Clark, M.D. v. WV Board of Medicine
Annotate this CaseSeptember 1997 Term
_____________
No. 23789
_____________
THOMAS S. CLARK, M.D.,
Appellant
v.
WEST VIRGINIA BOARD OF MEDICINE,
Appellee
AND
____________
No. 23790
____________
THOMAS S. CLARK, M.D.,
Appellee
v.
WEST VIRGINIA BOARD OF MEDICINE,
Appellant
______________________________________________________________________
Appeal from the Circuit Court of Monongalia County
Honorable Ronald E. Wilson, Judge
Civil Action No. 94-C-AP-72-W
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH DIRECTIONS
______________________________________________________________________
Submitted: October 14, 1997
Filed: July 17, 1998
Andrew G. Fusco,
Esq. Deborah
Lewis Rodecker, Esq.
Jeffrey A. Ray,
Esq. Charleston,
West Virginia
Fusco & Newbraugh, L.C.
Attorney
for West Virginia Board
Morgantown, West
Virginia
of Medicine
and
Franklin D. Cleckley, Esq.
Morgantown, West Virginia
Attorneys for Thomas S. Clark, M.D.
JUSTICE MAYNARD delivered the Opinion of the Court.
JUSTICE STARCHER, deeming himself disqualified, did not participate in the decision in
this case.
JUDGE THOMAS W. STEPTOE, JR., sitting by special assignment.
SYLLABUS BY THE COURT
1. "'"Upon
judicial review of a contested case under the West Virginia Administrative Procedure[s]
Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or
decision of the agency or remand the case for further proceedings. The circuit court shall
reverse, vacate or modify the order or decision of the agency if the substantial rights of
the petitioner or petitioners have been prejudiced because the administrative findings,
inferences, conclusions, decisions or order are '(1) In violation of constitutional or
statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the
agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole
record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.'" Syl. Pt. 2, Shepherdstown Volunteer Fire
Department v. Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983).' Syllabus
Point 1, St. Mary's Hospital v. State Health Planning and Development Agency, 178
W.Va. 792, 364 S.E.2d 805 (1987)." Syllabus Point 1, HCCRA v. Boone Memorial
Hospital, 196 W.Va. 326, 472 S.E.2d 411
(1996).
2. When the circuit
court finds the rights of a petitioner have been prejudiced because of one of the six
reasons set forth in W.Va. Code § 29A-5-4(g) and the court exercises its discretion to
reverse, modify or vacate the ruling of the West Virginia Board of Medicine, then any
disciplinary sanction the Board of Medicine is authorized to levy pursuant to legislative
rule or statute is also available to the circuit court.
Maynard, Justice:
The cross appellants in this case, Dr.
Thomas S. Clark and the West Virginia Board of Medicine (Board), appeal from the May 31,
1995 order of the Circuit Court of Monongalia County, West Virginia. The circuit court's
order modified the Board's order revoking Dr. Clark's license to practice medicine and
surgery in the State of West Virginia and instead ordered that Dr. Clark's medical license
be suspended for six months and that Dr. Clark receive a public reprimand. Dr. Clark
requests that the lower court's order mandating suspension be reversed. The Board requests
that its order mandating revocation be reinstated. These cases have been consolidated on
appeal. We believe the circuit court correctly decided the issues but erred in concluding
that only statutory sanctions could be considered when the administrative order was
appealed. We are remanding this case for the circuit judge to impose community service as
a sanction, as the judge originally desired.See
footnote 1 1 Accordingly, we affirm in part, reverse in part, and remand
this case to the circuit court to enter an order consistent with this opinion.
I.
FACTS
Dr. Clark was a member of the West
Virginia Board of Medicine from 1987 to 1992. In January 1992, the Executive Director of
the Board (Director), Ronald Walton, received an anonymous letter which alleged Dr. Thomas
S. Clark had abused drugs and had received treatment for the abuse. In February 1992,
Walton, along with an investigator from the United States Drug Enforcement Administration
(DEA) and a Board investigator, met with Dr. Clark and his attorney. At the meeting, the
participants discussed the January 1992 letter, a 1990 DEA report showing Dr. Clark had
been ordering Demerol, a Schedule II controlled substance, and information obtained from a
Ripley pharmacy showing that Dr. Clark obtained Demerol in 1990.
At the meeting, Dr. Clark voluntarily
disclosed that he had received treatment for the abuse of Demerol in 1987 at the Mayo
Clinic in Rochester, Minnesota. However, Dr. Clark refused to consent to the release of
his treatment records which were maintained by the Mayo Clinic.See footnote 2 2 Dr. Clark explained he had provided the
Demerol to a patient, but that he had no records of the patient's visits or injections. He
also explained that the Demerol he had obtained in Ripley was for use at the Ravenswood
Aluminum Company clinic, that the Demerol had not been used, rather, it had been flushed
down the toilet with no witnesses present. Following the meeting, Dr. Clark resigned as a
member of the Board.
The Board served subpoenas upon Dr.
Clark, requesting copies of documents. Some of the subpoenaed items were located and sent
to the Board. However, Dr. Clark did not have a daily record or log of dispensed Schedule
II controlled substances. The subpoenas were not signed by a member of the Board, as is
authorized by W.Va. Code § 30-3-7(a)(2); rather, Walton's secretary signed the name of
the President of the Board.
Dr. Clark was invited to appear before
the Board's complaint committee four times, once in June, July, August, and September
1993. He declined to appear each time due to the unavailability of his attorney. Finally,
a hearing was held before a hearing examiner in the Board offices on April 12-14, 1994,
pursuant to a complaint filed in October 1993 by the Board.
Of the charges levied against Dr.
Clark, the hearing examiner found that Dr. Clark had committed fraud on both the 1987 and
1989 renewal applications; that Dr. Clark failed to keep adequate medical records for one
patient; that as the result of his failure to keep adequate medical records, Dr. Clark
prescribed Demerol other than in good faith and in a therapeutic manner; that Dr. Clark
failed to keep a log of dispensed Schedule II controlled substances as well as order forms
and destruction forms for controlled substances; that Dr. Clark engaged in unprofessional,
dishonorable, and unethical conduct to the extent he was found to have committed the above
violations; and that Dr. Clark violated the public trust. The hearing examiner stated that
"[t]he other allegations [excluding fraud] would not themselves be sufficient to
justify the revocation of the respondent's medical license." Based on the finding of
fraud, the hearing examiner recommended that Dr. Clark's license to practice medicine and
surgery be revoked.
On September 16, 1994, the Board issued
its final order, which approved the recommendations of the hearing examiner with the
following modifications and enhancements. The Board agreed Dr. Clark failed to maintain
any record or log of dispensed Schedule II controlled substances, but found this was not a
violation of federal law because Dr. Clark did not regularly engage in the dispensing of
controlled substances or charge for his services or for the substances dispensed. The
Board agreed Dr. Clark failed to keep written records justifying the course of treatment
of a patient, but added the word "complete" before "written records."
The Board found contrary to the hearing examiner with regard to the issue of whether Dr.
Clark knew or should have known he was violating federal laws; the Board found it was
under no obligation to prove knowledge on the part of Dr. Clark and that Dr. Clark
violated state law regardless of his knowledge of federal law. The Board also found that
Dr. Clark violated federal record keeping regulations. The Board's order revoked Dr.
Clark's medical license.
Dr. Clark obtained a stay of the
Board's order in September 1994 and appealed the order to circuit court. Following a
review of the administrative decision, the circuit court issued a well-reasoned, fair and
persuasive memorandum opinion. A copy of the court's memorandum opinion is attached as an
Appendix to this opinion.
After carefully reviewing the record
and considering the arguments and briefs submitted by both sides, the circuit court
ordered that the Board's order be modified to provide for suspension of Dr. Clark's
license to practice medicine and surgery for six months and a public reprimand. It is from
this order that both Dr. Clark and the Board appeal to this Court.
II.
STANDARDS OF REVIEW
W.Va. Code § 30-3-14(k) (1989) provides
for judicial review of an administrative ruling, by stating in pertinent part: "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 [§§
29A-5-1 et seq. and 29A-6-1 et seq.], chapter twenty- nine-a of this code." When an
administrative ruling is appealed to the circuit court, the standard of review is stated
in Syllabus Point 1, HCCRA v. Boone Memorial Hospital, 196 W.Va. 326, 472 S.E.2d 411 (1996), as follows:
"'Upon
judicial review of a contested case under the West Virginia Administrative Procedure[s]
Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or
decision of the agency or remand the case for further proceedings. The circuit court shall
reverse, vacate or modify the order or decision of the agency if the substantial rights of
the petitioner or petitioners have been prejudiced because the administrative findings,
inferences, conclusions, decisions or order are "(1) In violation of constitutional
or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of
the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law;
or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the
whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or
clearly unwarranted exercise of discretion."' Syl. Pt. 2, Shepherdstown Volunteer
Fire Department v. Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342
(1983)." Syllabus Point 1, St. Mary's Hospital v. State Health Planning and
Development Agency, 178 W.Va. 792, 364 S.E.2d 805 (1987).
This Court further explained in Boone Memorial Hospital, 196 W.Va. at 335, 472 S.E.2d at 420, that "[u]nder the Administrative Procedures Act, 'the task of the
circuit court is to determine "whether the [agency's] decision was based on a
consideration of the relevant factors and whether there has been a clear error of
judgment."' Frymier-Halloran v. Paige, 193 W.Va. 687, 695, 458 S.E.2d 780, 788
(1995) quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 824, 28 L. Ed. 2d 136, 153 (1971)."
The right to appeal an adverse decision
of the circuit court to this Court is provided in W.Va. Code § 29A-6-1 (1964), which
states:
Any party
adversely affected by the final judgment of the circuit court under this chapter may seek
review thereof by appeal to the supreme court of appeals of this state, and jurisdiction
is hereby conferred upon such court to hear and entertain such appeals upon application
made therefor in the manner and within the time provided by law for civil appeals
generally.
This Court articulated the standard of review on appeal by stating, "In cases
where the circuit court has amended the result before the administrative agency, this
Court reviews the final order of the circuit court and the ultimate disposition by it of
an administrative law case under an abuse of discretion standard and reviews questions of
law de novo." Syllabus Point 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).
These standards were summarized by this Court in Martin v. Randolph County Board of Education, 195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995), which states, "This Court reviews decisions of the circuit under the same standard as that by which the circuit [court] reviews the decision of the ALJ. . . . We review de novo the conclusions of law and application of law to the facts."
III.
DISCUSSION
On appeal, both sides, the Board and
Dr. Clark, assign numerous errors. We find that the two central assignments of error that
determine the outcome of this case are the two issues with which the trial court dealt,
that is, the fraud issue and the medical records issue. We believe the circuit court
reached the correct decision as to each of these issues; therefore, we affirm the court's
ruling on these issues. As we believe the other errors assigned by the parties have no
merit, we do not consider them.
We pause here because we wish to comment on one issue. We note that the practice of allowing the secretary of the Executive Director of the Board to sign subpoenas is not the practice contemplated by statute. W.Va. Code § 30-3-7(a)(2) (1980) states in pertinent part, "The board may . . . subpoena witnesses and documents[.]" 11 C.S.R. § 3.16.1 (1989) provides, "The president or his or her designee shall have the power to issue subpoenas or subpoenas duces tecum pursuant to the provisions set forth in West Virginia Code subsection (b), section one, article five, chapter twenty-nine-a." The President of the Board is limited as to whom he or she may designate to issue subpoenas when he or she chooses not to sign the subpoenas. W.Va. Code § 29A-5-1(b) (1964) provides guidance and states in pertinent part:
For the purpose
of conducting a hearing in any contested case, any agency which now has or may be
hereafter expressly granted by statute the power to issue subpoenas or subpoenas duces
tecum or any member of the body which comprises such agency may exercise such power in the
name of the agency. Any such agency or any member of the body which comprises any such
agency may exercise such power in the name of the agency for any party upon request. Under
no circumstances shall this chapter be construed as granting the power to issue subpoenas
or subpoenas duces tecum to any agency or to any member of the body of any agency which
does not now by statute expressly have such power.
As the Board is granted statutory authority to issue subpoenas, clearly the preferred
practice is for the President to personally sign all subpoenas, and when that is not
possible or practicable, then the better practice is to designate a member of the Board
rather than the investigator's secretary to sign subpoenas.
The Fraud Issue
The Board charged Dr. Clark with
fraudulently completing the 1987 and 1989 Applications for Biennial Registration of
License to Practice Medicine and Surgery in the State of West Virginia because Dr. Clark
failed to report that he had entered a drug treatment program. In fact, Dr. Clark answered
"no" on both applications when asked, "During the last registration period,
have you been addicted to or received treatment for narcotic or alcohol dependency?"
The first application in question covered the time period from July 1, 1985 to June 30,
1987. On June 1, 1987, Dr. Clark signed and dated the second application which covered the
time period of July 1, 1987 to June 30, 1989. The Board stated that the failure by Dr.
Clark to report drug treatment on the application forms "constitute[d] a violation of
West Virginia Code § 30-3-14(c)(1), (17), and 11 CSR 1A 12.1(a), renewing a license to
practice medicine by fraudulent misrepresentation, for which violation the Respondent may
be disciplined by the Petitioner." The hearing examiner agreed with the Board that
Dr. Clark "renewed his license to practice medicine by fraudulent
misrepresentation[.]" The Board adopted this finding.
Dr. Clark appealed to the circuit
court, which found "the West Virginia Board of Medicine ("Board") was in
error when it found that Dr. Thomas Clark ("Dr. Clark") renewed his license to
practice medicine by fraudulent misrepresentation in 1987 and 1989." The court
concluded Dr. Clark was not compelled by law to report his drug treatment on the
applications. The court reasoned that the hearing examiner focused on the drug treatment
Dr. Clark received in the spring or summer of 1987, which occurred after the application
for biennial registration had been filed, and that Dr. Clark did not falsely answer the
question on either application. In reversing the administrative decision, the trial court
stated:
[T]he Board was in
error when it found that Dr. Clark renewed his license to practice medicine by fraudulent
misrepresentation in 1987 and 1989. . . . The Court also holds that the revocation of Dr.
Clark's medical license is clearly unwarranted based upon a proper application of the law
to the facts of this case.
* * *
By choosing to
receive drug treatment during the month of June, 1987, Dr. Clark may have been incredibly
lucky, because that was the only time period outside the scope of his answers on the 1987
application for license renewal, or he may have received some very good legal advice. Or,
as most of us suspect, he premeditatedly planned to be treated in June, 1987 - after
submitting his application on June 1, 1987, to avoid disclosing his disease. Obliqueness,
however, is not fraud.
While we do not condone Dr. Clark's "obliqueness" and certainly the better
practice would have been full disclosure, we also recognize that Dr. Clark self-reported
his problem and sought treatment on his own. This is the type of conduct we wish to
encourage. We have no desire to place a chilling effect upon professionals who wish to
self-report and seek help when they realize they have a problem. We also note that Dr.
Clark has been practicing medicine for more than ten years since he voluntarily sought
treatment and he has had no other reported complaints or problems during that entire
period to date.
The hearing examiner wrongly determined
that Dr. Clark had a duty to supplement his answers on the application forms. The hearing
examiner failed to cite any law to justify this conclusion. Simply put, there did not
exist in the law at that time a duty to supplement.See
footnote 3 3 The trial court stated that perhaps Dr. Clark had a moral
duty to supplement, but the court was not sitting as a moral court. The trial court
correctly ruled on this de novo question of law that Dr. Clark did not have a duty
to supplement. We affirm this ruling.
The Medical Records Issue
The Board charged Dr. Clark with failing
to maintain medical records as to his care and treatment of a patient he regularly
injected with Demerol, thereby violating W.Va. Code §§ 30-3-14(c) (11) and (17) and 11
C.S.R. § 1 A. 12.1(u). The hearing examiner found that the documents submitted by Dr. Clark
contained inconsistencies and inaccuracies and that no records were submitted "which
showed a consistent chronology justifying his course of treatment of the patient and
setting forth a record of examinations and treatments rendered."
The Board also charged Dr. Clark with ordering Demerol and Dexedrene from various suppliers without maintaining any record or log of dispensed Schedule II
substances, thereby violating W.Va. Code § 30-3-14(c)(17) and 11 C.S.R. §§
1 A. 12.1(e), (j), 12.2(h), and 11 C.S.R. §§ 5.9.3 and 11. The Board charged Dr. Clark
with disposing and destroying Demerol in such a way that he violated 21 C.F.R. §
1307.21(a)(2), W.Va. Code § 30-3-14(c)(17), and 11 C.S.R. §§ 1 A. 12.1(o) and (bb). The
hearing examiner concluded that the record supported the allegation that the respondent
prescribed and injected Demerol without keeping written records and that the respondent
failed to maintain any record or log of dispensed Schedule II controlled substances. The
Board found Dr. Clark failed to maintain proper and adequate medical records. When
appealed to the circuit court, the court concluded "that the Board properly found
that Dr. Clark failed to maintain proper and adequate medical records." There is no
showing this conclusion was clearly wrong. The trial court properly affirmed the Board's
order on this issue; therefore, we affirm the ruling of the trial court.
Sanctions
As stated earlier, we believe the circuit
court erred in determining it could not sanction Dr. Clark by requiring that he perform
community service. The court stated it best in its memorandum opinion when it said:
A more difficult
issue is what is the appropriate punishment for Dr. Clark. . . . If I had the right to do
so, considering society's needs, Dr. Clark would be ordered to give a generous amount of
his time providing free medical care for the downtrodden. That he should devote his
knowledge and talents to service public needs in atonement for his indiscretions and
refusal to follow the rules seems to be fair and to fit the conduct condemned by the
Board.
Unfortunately, the court determined that option was not available. As we will discuss
below, we believe the option of community service was available to the court. We are,
therefore, reversing and remanding this case to the circuit court to impose community
service as a sanction upon Dr. Clark. Of course, of necessity the length and type of
community service to be performed by Dr. Clark will be determined by the Board of
Medicine.
We agree with the circuit court that
the disciplinary measures listed in W.Va. Code § 30-3-14(i) (1989), to which the court
referred, do not provide for community service.See
footnote 4 4 However, the Board's legislative rules grant the Board
authority to require a doctor to provide free public or charitable service when the Board
finds a doctor should be disciplined. The sanctions the Board may impose are found in 11
C.S.R. § 1 A. 12.3 (1994), which states:
12.3. When
the Board finds that any applicant is unqualified to be granted a license or finds that
any licensee should be disciplined pursuant to the West Virginia Medical Practice Act or
rules of the Board, the Board may take any one or more of the following actions:
a. Refuse
to grant a license to an applicant;
b. Administer
a public reprimand;
c. Suspend,
limit or restrict any license for a definite period, not to exceed five (5) years;
d. Require
any licensee to participate in a program of education prescribed by the Board;
e. Revoke
any license;
f. Require
the licensee to submit to care, counseling or treatment by physicians or other
professional persons;
g. Assess
a civil fine of between $1,000 and $10,000 and/or assess cost of the Board's investigation
and administrative proceedings against the licensee;
h. Require
him or her to practice under the direction or supervision of another practitioner or
i. Require
the licensee to provide a period of free public or charitable service.
In addition to
and in conjunction with these actions, the Board may make a finding adverse to the
licensee or applicant, but withhold imposition of judgment and penalty, or it may impose
the judgement [sic] and penalty but suspend enforcement of penalty and place the physician
or podiatrist on probation, which probation may be vacated upon noncompliance with such
reasonable terms as the Board may impose. In its discretion, the Board may restore and
reissue a license to practice medicine or podiatry issued under the West Virginia Medical
Practice Act or any antecedent law, and as a condition thereof, it may impose any
disciplinary or corrective measure provided for in this Rule or in the West Virginia
Medical Practice Act. (Emphasis added).
W.Va. Code § 29A-1-2(d) (1982) states,
in pertinent part, "Legislative rule includes every rule which, when promulgated
after or pursuant to authorization of the legislature, has . . . the force of law[.]"
This Court has previously said that rules adopted pursuant to the State Administrative
Procedures Act, W.Va. Code §§ 29A-1-1 to 29A-7-4, "have the force and effect of
law." State ex rel. Kincaid v. Parsons, 191 W.Va. 608, 610, 447 S.E.2d 543,
545 (1994); State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622 (1981); Reed
v. Hansbarger, 173 W.Va. 258, 314 S.E.2d 616 (1984); Appalachian Power Co. v. State
Tax Dept. of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995). See also Syllabus
Point 2, HCCRA v. Boone Memorial Hospital, 196 W.Va. 326, 472 S.E.2d 411 (1996).
Neither party in the case sub judice questions whether the rules adopted by the West Virginia Board of Medicine and approved by the Legislature were properly formulated. Both sides seem to take for granted that the rules were properly adopted and ratified. Therefore, these legislative rules have the force and effect of law. When the case was reviewed by the circuit court, the judge determined he could not impose community service as a disciplinary measure. Because legislative rules have the force and effect of law, we believe any disciplinary sanction the Board is authorized to levy by rule is also available to the circuit court. Therefore, we hold that when the circuit court finds the rights of a petitioner have been prejudiced because of one of the six reasons set forth in W.Va. Code § 29A-5-4(g) and the court exercises its discretion to reverse, modify or vacate the ruling of the West Virginia Board of Medicine, then any disciplinary sanction the Board of Medicine is authorized to levy pursuant to legislative rule or statute is also available to the circuit court. In lieu of the license suspension, the circuit court had the power to consider and impose the sanctions included in 11 C.S.R. § 1 A. 12.3 (1994),
including community service which involves free public or charitable service, along
with the sanctions included in W.Va. Code § 30-3-14(i) (1989).
In conclusion, we find the circuit
court correctly decided each issue with which it was confronted but erred in determining
it could only impose statutory sanctions upon Dr. Clark. Therefore, we affirm in part,
reverse in part, and remand this case to the circuit court to impose, in lieu of
suspension, the sanction of community service which is provided for in the legislative
rules and the public reprimand. The court is directed to enter an order consistent with
this opinion.
Affirmed in part,
reversed in part, and remanded with directions.
APPENDIX
IN THE CIRCUIT COURT OF
MONONGALIA COUNTY,
WEST VIRGINIA
THOMAS S. CLARK, M.D., PETITIONER V.
WEST VIRGINIA BOARD OF MEDICINE, RESPONDENT
CIVIL ACTION NO. 94-C-AP-72
MEMORANDUM OPINION
Dr. Thomas S. Clark (Dr. Clark) has appealed a Final Order
of the West Virginia Board of Medicine (Board) dated the 12th day of September 1994. The
Board's Order revoked Dr. Clark's license to practice medicine and surgery in the State of
West Virginia.
This opinion concludes that the Board was in error when it
found that Dr. Clark renewed his license to practice medicine by fraudulent
misrepresentation in 1987 and 1989. The Court finds that the Board properly found that Dr.
Clark failed to maintain proper and adequate medical records. The Court also holds that
the revocation of Dr. Clark's medical license is clearly unwarranted based upon a proper
application of the law to the facts of this case.
The Procedures for Appeals of Decisions by Administrative
Agencies are governed by the State Administrative Procedures Act, W.Va. Code, 29A-1-1 et
seq. [1964].
Upon judicial review of a contested case under the
Administrative Procedure Act, a circuit court may affirm the order or decision of the
agency, or remand the case for further proceedings. W.Va. Code, 29A-5-4(g). This Court can
only reverse, vacate or modify the order or decision of the Board if substantial rights of
the petitioner have been prejudiced because the administrative findings, inferences,
conclusions, decisions or order are:
(1) In violation
of constitutional or statutory provisions; or
(2) In excess of
the statutory authority or jurisdiction of the
agency; or
(3) Made upon
unlawful procedures; or
(4) Affected by
other error of law; or
(5) Clearly
wrong in view of the reliable, probative and
substantial
evidence on the whole record; or
(6) Arbitrary or
capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion. W.Va. Code, 29A-5-4(g). See Syl. pt. 2 Shepardstown [sic] Volunteer Fire
Department v. State ex rel. State Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342
(1983).
A circuit court reviewing an administrative decision or order
under W. Va. Code, 29A-5-4(g)(5) [1964], is permitted an "extremely limited scope of
review." Gino's Pizza of W. Hamlin v. WVHRC, 187 W.Va. 312, 317, 418 S.E.2d 758
(1992). On this point, the Court said in Frank's Shoe Store v. W.Va. Human Rights
Commission, 179 W.Va. 53, 56, 365 S.E.2d 251, 254 [1986]:
[A] reviewing court must evaluate the
record of the agency's proceeding to determine whether there is evidence on the record as
a whole to support the agency's decision. The evaluation is conducted pursuant to the
administrative body's findings of fact, regardless of whether the court would have reached
a different conclusion on the same set of facts. Anderson v. City of Bessemer, 470 U.S. 564, 574-75, 105 S. Ct. 1504, 1511-12, 84 L. Ed. 2d 518, 528 (1985).
Since this is just a trial court opinion and enough trees have
already been devoured for the mountains of paper filed in this matter, I will not repeat
the charges in the Complaint or all of the recommended decisions of the Hearing Examiner
as modified and adopted by the Board, or all of the arguments of counsel. If an issue
raised on appeal is not discussed in this Opinion, counsel is to conclude (however
disappointing this may be), that I have found the argument to be without
merit.
In light of this Court's limited power of review and the record
reviewed by the Court, this appeal turns on the Board's Findings and Conclusions on these
two issues:
(1) Did Dr. Clark
commit fraud on his renewal applications?
and (2) Were
proper and adequate medical records maintained
by Dr. Clark?
The answer to question (1) is "no"; the answer to question (2) is
"no".
I.
THE FRAUD ISSUE
The Board based its decision on a mistake of law and was
clearly wrong when it concluded that:
It has been clearly and convincingly
demonstrated that the respondent renewed his license to practice medicine by fraudulent
misrepresentation in 1987 and in 1989 as charged in the Board's complaint in violation of
West Virginia Code sec. 30-3-14(c)(1), (17) and 11 CSR 1A 12.1(a).
It is the conclusion of this Court that:
Dr. Clark was not compelled by law to report his June 1987 drug
treatment on his 1987 and 1989 applications for biennial registration of license to
practice medicine and surgery in the State of West Virginia and he did not renew his
license to practice medicine by fraudulent misrepresentation.
DISCUSSION
On June 1, 1987, Dr. Clark signed and dated an application for
biennial registration of license to practice medicine and surgery for the period of July
1, 1987, to June 30, 1989. The Board had the right to deny Dr. Clark's license to practice
medicine if he was guilty of fraudulent misrepresentation. W.Va. Code 30-3-14(c)(1), (17).
The heart of the Board's fraudulent misrepresentation finding against Dr. Clark is found
in his "no" answer to question 6, "During the last registration period have
you . . . been addicted to or received treatment for narcotic or alcohol dependency."
The last registration period referred to in the question was July 1, 1985 to June 30,
1987.
Although the Hearing Examiner found that Dr. Clark became
addicted to Demerol in 1987, there was no finding that Dr. Clark had been addicted to
narcotic or alcohol dependency from July 1, 1985 to June 30, 1987. Instead, the Hearing
Examiner focused on the treatment Dr. Clark received in the spring-summer of 1987 and the
Hearing Examiner's contention that Dr. Clark had a responsibility to report his drug
treatment even though the Hearing Examiner found that the treatment occurred after the
application for biennial registration had been filed.
It is critical in the consideration of this issue to remember
that we are not asking whether Dr. Clark's actions were reprehensible. It is fraud that is
being charged here - not reprehensible behavior. Dr. Clark did not lie in answer to any of
the questions on his 1987 Renewal Application. That fact is not disputed. But, according
to the Hearing Examiner's mistaken view of the law, which was adopted by the Board, Dr.
Clark had a legal duty to supplement his answers on the 1987 Application. Most people
would agree that Dr. Clark had a moral duty to do that. I have no doubt about that. He
also had a duty to his patients and to the medical community to educate them about his
disease. That he did not do so is a negative reflection on his strength of soul. But the
Board does not sit a board of morality - legal precepts must govern the Board's
conclusions of law. There was no law in 1987 - no statute - no regulation - no case law -
requiring Dr. Clark to bring the Board up to date on his personal problem.
The law must be followed. The Board cannot end a medical career
by the spinning of words into theories which are then called facts. If loopholes in the
law are used and abused, legislative bodies change the law. And that is what the Board did
(or tried to do) in 1991 when it changed its application form to require practitioners to
supplement application forms.
The Hearing Examiner and the Board also found that when Dr.
Clark, on his application for biennial registration for the period July 1, 1989 to June
30, 1991, answered "No" to question No. 8, "During the last registration
period [July 1, 1987 to June 30, 1989], have you been addicted to or received treatment
for any chemical substance or alcohol dependency," he gave a false answer.
To reach this conclusion, the Hearing Examiner relied upon the
testimony of Ellen Starkey, a licensed clinical social worker, who formerly worked with
Dr. Clark. Ms. Starkey testified that Dr. Clark returned from treatment on July 3rd.
However, on cross examination, Ms. Starkey said that the reason she testified that Dr.
Clark returned from a drug treatment on July 3, 1987, was because that was the day he got
off the plane and came to the office. But, Ms. Starkey then admitted that she did not know
the date Dr. Clark terminated his treatment. It is not easy to define exactly what is
meant by the burden of proof standard "clear and convincing evidence" - but I do
know that the Hearing Examiner clearly didn't have clear and convincing evidence on this
determinative fact.
By choosing to receive drug treatment during the month of June,
1987, Dr. Clark may have been incredibly lucky, because that was the only time period
outside the scope of his answers on the 1987 application for license renewal, or he may
have received some very good legal advice. Or, as most of us suspect, he premeditatedly
planned to be treated in June, 1987 - after submitting his application on June 1, 1987, to
avoid disclosing his disease. Obliqueness, however, is not fraud.
Dr. Clark's actions were not right - because he, at the very
least, violated the spirit of the law. Fair enough. But, the charge is fraud - not right
or wrong - not candor or obliqueness - and fraud was not proven by clear and convincing
evidence.
II.
WHAT DR. CLARK DID AND DID NOT DO
There is clear and convincing evidence that Dr. Clark was
undeniably wrong in several respects.
Dr. Clark:
1. Failed to keep a separate daily log or record of dispensed
Schedule II controlled substances as required by State statute and
regulations;
2. Failed to comply with Federal and State law as to the
procedure to be followed for the disposing and destruction of Schedule II controlled
substances;
3. Failed to complete fully DEA Form 222 giving the names and
addresses of suppliers and the amounts and dates of scheduled controlled substances
received;
4. Failed to keep complete medical records on one patient who
was treated with Demerol prescriptions and injections over a four year period;
5. Failed to live up to the standards of a public official in a
position of public trust as a member of the West Virginia Board of
Medicine from August, 1987 through February 1992.
III.
JUST PUNISHMENT
In the Complaint against Dr. Clark, allegations are made that his
violations of West Virginia Statutory and Regulatory Law, rise to the level of
unprofessional, dishonorable and unethical conduct, and that his conduct is of a character
likely to deceive, defraud or harm the public.
Based upon the Findings of Fact and Conclusions of Law made by
the Board, Dr. Clark is to lose his license to practice medicine. I have found that the
most damning allegations against Dr. Clark were not proved by clear and convincing
evidence and cannot, therefore, be used to revoke his medical license. Thus, the focus of
the issue of just punishment for Dr. Clark turns on whether Dr. Clark's violations of
statutory and regulatory law, supported by the record in this case, justify his removal
from the practice of medicine.
In revoking Dr. Clark's license, the finding that he falsely
and fraudulently submitted license renewal applications was given great weight by the
Board. The Hearing Examiner conceded that all the other allegations, other than the issue
of fraud, ". . . would not themselves be sufficient to justify the revocation of the
respondent's medical license." Recommended decision of the Hearing Examiner at 52.
The Board also agreed that the record did not support the
allegation that Dr. Clark prescribed controlled substances for himself in August and
September, 1989. Furthermore, the Board found that the record did not support the
allegation that Dr. Clark is unable to practice medicine with reasonable skill and safety
for patients by reason of excessive use and abuse of drugs.
Based upon the record in this case, there is no basis for the finding of the Board that Dr. Clark is not qualified to practice medicine and surgery in West Virginia. To conclude, as the Board did, that Dr. Clark is unqualified to practice medicine for failing to maintain any medical records on one patient is unjustified in fact and in law. The sin addressed in Code 30-3-14(c)(11), and West Virginia Board of Medicine Regulation 11 CSR 1A 12, 1(u), is the failure to keep written records "justifying the course of treatment of a patient" - not, simply, the failure to keep "complete" medical records. In a similar vein, the Board's conclusion that Dr. Clark prescribed and dispensed Demerol to a patient other than in good faith and in a therapeutic manner, which conclusion was also based upon a finding
that Dr. Clark failed to keep "complete" medical records, is, for that
reason, also a flawed conclusion.
Based upon the Findings of Fact supported by clear and
convincing evidence, it is not proper and in the public interest, health, welfare and
safety, to revoke Dr. Clark's license to practice medicine and surgery in the State of
West Virginia.
The decision of the Board to revoke is now clearly wrong in view
of the whole record and is an unwarranted exercise of discretion.
A more difficult issue is what is the appropriate punishment
for Dr. Clark. The options are limited by statute. If I had the right to do so,
considering society's needs, Dr. Clark would be ordered to give a generous amount of his
time providing free medical care for the downtrodden. That he should devote his knowledge
and talents to service public needs in atonement for his indiscretions and refusal to
follow the rules seems to be fair and to fit the conduct condemned by the Board.
Unfortunately, this option is not available to the Court.
That Dr. Clark should be forbidden from practicing medicine,
perhaps forever, is undoubtedly wrong. The right to practice medicine is not the private
property of the Board. It is a punishment which should be assigned only to those who
commit really putrid violations. There is no reason, grounded upon what Dr. Clark did and
did not do in this case, to sentence him to that uncertain abyss for him of living with
the interminable revocation of his medical license.
Justice must see the human element in any case. It is critical
to keep in mind that Dr. Clark confronted his own affliction. His treatment in 1987 was
not a malevolent act - it was a good one. That he should have dealt with the problem
differently cannot be contested, even by his most ardent supporters. But, this is 1995.
Eight years have passed since Dr. Clark obtained drug treatment. The opportunity for fresh
or even timely justice has long passed. The issue is not whether he deserves a place in
William Bennett's The Book of Virtues, but the justness of his banishment from medicine.
What purpose is served by destroying Dr. Clark's life?
It is not only an overkill, but it is foolish for the Board to
end this man's medical career. Without question, he made mistakes -- some of them serious.
But, surely those mistakes do not justify the use of the guillotine on Dr. Clark's career.
I am of the opinion that the Board's Order must be modified.
Upon the facts proved by clear and convincing evidence, the Board may impose upon Dr.
Clark:
1. A public reprimand.
2. A suspension of his license to
practice medicine and surgery
for a period of six months.
/S/ Ronald E. Wilson
JUDGE
Footnote: 1 1 The trial judge stated in his memorandum opinion that community service was an appropriate sanction for Dr. Clark's "indiscretions and refusal to follow the rules," but the judge also stated that option was not available to the court as a possible penalty.
Footnote: 2 2 The Board filed a lawsuit in the federal district court in Minnesota seeking the release of Dr. Clark's treatment records. The court granted Dr. Clark summary judgment. The Board's appeal to the Eighth Circuit Court of Appeals was eventually dropped.
Footnote: 3 3 The biennial registration
form was modified in 1991 to expressly state that a duty to supplement exists. The warning
that was then added to the form states:
REMEMBER, REGARDLESS OF THE DATE OF YOUR SIGNATURE, YOUR STATEMENTS ABOVE RELATE TO THE ENTIRE PERIOD JULY 1, 1989, TO JUNE 30, 1991. IF, AFTER YOU SIGN AND DATE THIS FORM, AND PRIOR TO JULY 1, 1991, ANY ANSWER SHOULD CHANGE FOR ANY REASON, YOU HAVE A DUTY TO NOTIFY THE BOARD AND AMEND YOUR FORM.
Footnote: 4 4 W.Va. Code § 30-3-14(i)
(1989) states:
(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 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 a civil fine of not less than one thousand dollars nor more than ten thousand dollars.
Converted by Andrew Scriven
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.