Justia.com Opinion Summary: The West Virginia Medical Imaging & Radiation Therapy Technology Board of Examiners appealed an order of the circuit court. In the order, the court reversed the Board's decision to suspend Appellee Kenneth Harrison's medical license. The Board issued a final administrative decision that found Dr. Harrison practiced outside the scope of his medical imaging and radiation therapy license when he administered intravenous allergy medicine to a patient without the treating physician's involvement. Upon careful consideration of the arguments and the applicable legal authority, the Supreme Court reversed the lower court's decision.
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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2011 Term
FILED
May 26, 2011
__________
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 101150
__________
WEST VIRGINIA MEDICAL IMAGING AND RADIATION THERAPY
TECHNOLOGY BOARD OF EXAMINERS,
Petitioner Below, Petitioner
v.
KENNETH A. HARRISON,
Respondent Below, Respondent
______________________________________________________
Appeal from the Circuit Court of Monongalia County
Honorable Phillip D. Gaujot, Judge
Civil Action No. 09-CAP-28
REVERSED
____________________________________________________
Submitted: May 11, 2011
Filed: May 26, 2011
Darrell V. McGraw
Nicole A. Cofer
Attorney General’s Office
Charleston, West Virginia
Counsel for the Appellant
Jacques R. Williams
Hamstead, Williams and Shook
Morgantown, West Virginia
Counsel for the Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1.
“‘Upon judicial review of a contested case under the West Virginia
Administrative Procedure 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.” Syllabus point 2, Shepherdstown Volunteer Fire
Department v. West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342
(1983).’ Syllabus, Berlow v. West Virginia Board of Medicine, 193 W.Va. 666, 458 S.E.2d
469 (1995).” Syl. Pt. 1, Modi v. West Virginia Bd. of Medicine, 195 W.Va. 230, 465 S.E.2d
230 (1995).
i
2.
“A reviewing court must evaluate the record of an administrative 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.” Syl. Pt. 1, Walker v. West Virginia Ethics Com’n., 201 W.Va. 108,
492 S.E.2d 167(1997).
3.
“‘“In cases where the circuit court has [reversed] 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.” Syl. pt. 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d
518 (1996).’ Syllabus point 1, Hoover v. West Virginia Board of Medicine, 216 W.Va. 23,
602 S.E.2d 466 (2004).” Syl. Pt. 1, Crouch v. West Virginia Div. of Motor Vehicles, 219
W.Va. 70, 631 S.E.2d 628 (2006).
4.
“‘In the interpretation of statutory provisions the familiar maxim expressio
unius est exclusio alterius, the express mention of one thing implies the exclusion of another,
applies.’ Syllabus Point 3, Manchin v. Dunfee, 174 W.Va. 532, 327 S.E.2d 710 (1984).”
Syl. Pt. 6, Phillips v. Larry’s Drive-In Pharmacy, Inc., 220 W.Va. 484, 647 S.E.2d 920
(2007).
ii
Per curiam:
The West Virginia Medical Imaging and Radiation Therapy Technology Board
of Examiners (“Board” or “Appellant”) appeals the March 26, 2010, order of the Circuit
Court of Monongalia County, which reversed the Board’s Final Administrative Order
suspending for two years Appellee Kenneth A. Harrison’s license to practice medical imaging
and radiation therapy technology in the State of West Virginia. The Board had found that
Appellee practiced outside the scope of his medical imaging and radiation therapy technology
license when he administered intravenous medication to a patient without physician
involvement, in violation of W.Va. Code §30-23-1 et seq.1 and 18 C.S.R. §§5-5.1 and 5.1.17.
Upon careful consideration of the arguments of the parties and the applicable
legal authority, and for the reasons set forth below, we reverse the order of the circuit court.
1
The events that transpired in this case occurred in June 2008. We note that
portions of W.Va. Code §30-23-1 et seq. were subsequently revised; however, because such
revisions have no material impact on the resolution of this case, we shall refer to the revised
and most recent statute for ease of reference.
2
I. Factual and Procedural Background
At all times relevant, Appellee was a radiologic technologist3 licensed by the
Board4 and was employed in that capacity by West Virginia University Hospitals (“WVUH”).
In a letter dated July 2, 2008, from Darlene S. Headley, Director, WVUH Department of
Radiology, the Board was advised that Appellee’s employment at WVUH had been
terminated “due to unfavorable conduct for working outside of the scope of practice for a
radiologic technologist at WVUH.”5
The letter further advised the Board that
[u]pon investigation of a patient care situation, [Appellee]
admitted to administering Benadryl intravenously to a patient
without physician involvement. The lack of a physician order
and the lack of involvement of a physician, nurse or pharmacist
in the dose calculation and administration of a medication are
outside of the scope of practice for a radiologic technologist.
Thereafter, the Board notified Appellee that it was conducting an investigation
into the matter and advised him of his right to respond, in writing, to the complaint and
allegations that he was terminated by WVUH as set forth above. See generally W.Va. Code
3
A “radiologic technologist” is defined as “a person. . . who applies medical
imaging or assists in the application of ionizing radiation to human beings for diagnostic or
therapeutic purposes as prescribed by a licensed practitioner[.]” W.Va. Code §30-23-4(s)
(2009) (Repl. Vol. 2007).
4
The Board is a statutorily-created agency empowered to regulate the practice
of medical imaging and radiation therapy technology in the State of West Virginia. See
W.Va. Code §§30-23-5 and 6 (2010).
5
Appellee became a radiologic technologist in 1986 and, prior to his
termination, worked at WVUH for approximately six years.
3
§§30-23-25 and 26 (2007).
On or about August 5, 2008, Appellee filed a written response with the Board
in which he admitted administering Benadryl intravenously to a patient who had an allergic
reaction to the contrast media.6 It is undisputed that, prior to injecting the patient with
contrast, neither Appellee nor his co-worker, radiologic technologist Ronna Shaneyfelt, were
advised by the appropriate hospital staff that the patient had a contrast allergy. According
to Appellee’s written response to the Board’s allegations, the patient had “an anaphylactic
reaction” to the contrast. Appellee explained that the patient was “displaying hives and
started to hiccup, which progressed rapidly into respiratory distress.” Appellee’s response
further stated that the radiology resident on call failed to respond to his co-worker’s page in
a timely manner. According to Appellee, “[t]here was no formal written policy to cover such
an event,” and he “had to administer Benadryl and start [the patient] on oxygen due to his
deteriorating respiratory status.” Appellee believed he had done nothing wrong
because it is in my job description to handle medications on a
daily basis. . . . We are required to have IV therapy classes and
draw up medications all the time. As to the accusation that I did
not have the guidance of a physician to determine the dose of
Benadryl, she did not make herself available and technologists
in this facility draw up medications all the time without the
presence of the physician when making trays for special
procedures, biopsies, and abscess drainages.
6
It was explained during the course of the January 29, 2009, hearing that
contrast media is “an ionic or non-ionic material that is injected [intravenously into patients]
so that certain organs can be imaged more clearly.”
4
As to me not going to the [emergency department] for
help, this is not what the procedure is. We are told to call the
radiologist.
Pursuant to a Notice of Hearing and Statement of Charges dated December 11,
2008, an administrative hearing was conducted on January 29, 2009, and April 2, 2009,
before Hearing Examiner Jack C. McClung. During the course of the hearing, Ms.
Shaneyfelt testified that after the patient had been injected with contrast and scanned, she
read in his chart that he was allergic to contrast. According to Ms. Shaneyfelt, she went from
the control room to the scanner area to ask Appellee if he was aware of the patient’s allergy.
Appellee did not answer but instead left the room.7 Ms. Shaneyfelt attended to the patient
and noticed that, at most, he had two or three hives on his neck. Ms. Shaneyfelt testified that
“the patient did not seem to be in any distress,” and that she did not “see any respiratory
issues arising from it or anything like that.” When she asked the patient if he was okay, he
nodded affirmatively. Ms. Shaneyfelt immediately paged Dr. Mithra Kimyai-Asadi, the
radiology resident on call. Meanwhile, at the same time Appellee returned to the patient, Dr.
Kimyai-Asadi answered Ms. Shaneyfelt’s page and advised her that she would be right there.
A few minutes later, Dr. Kimyai-Asadi arrived8 and she and Ms. Shaneyfelt approached the
7
Appellee left the room in order to retrieve the Benadryl, a fact of which Ms.
Shaneyfelt was unaware at the time.
8
Contrary to Appellee’s assertion in his written response to the Board’s
allegations that “the Radiologist did not respond in a timely manor [sic] to this crisis,” and
that Ms. Shaneyfelt paged her more than once, Ms. Shaneyfelt testified that Dr. Kimyai
(continued...)
5
area where the Appellee was attending to the patient and listening to his lungs with a
stethoscope. It was at that time Ms. Shaneyfelt heard Appellee say that he had administered
50 mg of Benadryl intravenously to the patient.9
Dr. Kimyai-Asadi testified that when she answered Ms. Shaneyfelt’s page
regarding the patient’s allergic reaction, she did not advise Ms. Shaneyfelt that someone
should administer Benadryl.10
Although Dr. Kimyai-Asadi testified that, ultimately,
8
(...continued)
Asadi returned the page and arrived on the scene all within “a matter of no more than five
minutes” from the time she was first paged.
9
When Ms. Shaneyfelt was asked at “what level would it have to have been
in order for you to feel comfortable pushing Benadryl without first contacting a doctor or
making sure that someone else had been alerted prior[,]” she replied as follows:
It wouldn’t be at any level that I would push any drug.
I don’t have that authority to do that. Two reasons; [sic]
number one, I didn’t have an order; number two I am not an RN
which pushes drugs. You know, we cannot, in my area of
practice we do not push drugs unless – we do push the IV
contrast. We do push the saline. But that’s within our protocol
of our field to do it. But to push the drugs, in my opinion, no,
I would not. I don’t have that power to do that.
Ms. Shaneyfelt further testified that she was so bothered by Appellee’s
decision to administer IV Benadryl in this situation that, when she returned home after work
that evening, she telephoned the lead technologist to speak with her about the incident.
10
Dr. Kimyai-Asadi further testified that, likewise, she had not previously
given orders to the radiologic technologists that, in the event of an emergency, they should
administer Benadryl before or while paging her.
6
administering 50 mg of Benadryl was appropriate in this case, whether to administer the
medication was her decision to make:
Q. Now you have said and I think you have concluded that
everyone agrees that [administering 50 mg of Benadryl] was the
right thing to do ultimately.
A. Uh-huh (yes).
Q. In your opinion, whose call should that have been to make?
A. Mine
Q. Would you see a reason for a [radiologic technologist] to
make that call for you?
A. Maybe in extreme circumstances, I mean, but then it
wouldn’t be Benadryl. If it was extreme and the guy was coding,
it wouldn’t be Benadryl. But probably not then. I mean,
something like hives can wait. And if it was something like
respiratory distress, then we would probably call a code and not
give Benadryl.
For his part, Appellee testified that although Ms. Shaneyfelt paged Dr. KimyaiAsadi after the patient began to break out into hives, Ms. Shaneyfelt led him to believe that
no physician was coming to help them deal with the situation that had just developed.
Meanwhile, Appellee observed the patient begin to hiccup and to have “some labored
breathing[,]” at which time Appellee told Ms. Shaneyfelt he was going to get some
7
Benadryl.11 Appellee testified that he administered intravenous Benadryl to the patient
“because he kept deteriorating.” Shortly after Appellee administered the medication, Dr.
Kimyai-Asadi arrived.
Following the incident, Appellant wrote up a report in which he documented
what occurred: “Patient was given 50 mg of Benadryl IV for a contrast allergy induced rash.
. . . After Benadryl was given patient’s rash started to disapate [sic].” Nowhere in the report
did Appellee document that the patient was also experiencing respiratory distress and
hiccups.
Appellee also presented evidence that at the time the foregoing incident
occurred, WVUH had in place a protocol which, he argued, authorized radiologic
technologists to administer Benadryl intravenously in the event a patient experienced an
allergic reaction to contrast. More specifically, admitted into evidence was a “protocol
excerpt” entitled “Intravenous Contrast Allergy,” which provided, in relevant part, as follows:
11
Appellee’s testimony differed somewhat from that of Ms. Shaneyfelt. As
indicated previously, according to Ms. Shaneyfelt’s testimony, she approached the patient
after Appellee left him to retrieve the Benadryl and, contrary to Appellee’s testimony, she
observed only two to three hives on the patient’s neck and did not find him to be in any
respiratory distress. Furthermore, Ms. Shaneyfelt testified that Appellee did not indicate
where he was going or what he was doing when he briefly left the patient in the scanning
area. Ms. Shaneyfelt did not recall telling Appellee that no one was coming to help them.
As indicated above, Ms. Shaneyfelt, Appellee and Dr. Kimyai-Asadi all testified that Dr.
Kimyai-Asadi answered her page and arrived on the scene all within a total of five minutes.
8
If the patient develops a mild to moderate allergic reaction
with the injection:
i.
ii.
iii.
iv.
Notify the radiology resident and/or attending.
If the allergic reaction is hives, rash, redness or
itching, the treatment is Benadryl 50 mgm IV or PO.
Observe the patient for 30 to 60 minutes until hives or
rash begin to resolve. If the patient has someone to drive,
he or she may leave. If no driver is available, check with
the radiology resident or attending regarding a time frame
for discharge.
The patient must be seen by a physician prior to
discharge, and must be given a copy of the contrast
reaction discharge instructions, which must be signed by
the patient and by the physician.
....
If the patient develops a severe allergic reaction or
anaphylactic reaction with the current injection:
i.
Notify radiology resident/attending. Initial treatment is
Benadryl 50 mgm IV, SoluMedrol 125 mgm IV, and
Epinephrine 1:1000, 0.3 ml subcutaneously. The
patient is then transferred to the Emergency
Department.
(Emphasis added)
When asked at the hearing how he knew what dosage of Benadryl to
administer, Appellee replied, “it’s in our protocol manual, of course. But over the years, you
know, you work around radiology for so long and radiologists have you draw up medications
9
for them. . . . And, of course, with my training and my pharmocology courses, I knew
appropriate dose [sic] for a patient, given heights and weights.”12
Ms. Headley, the administrative director of the hospital’s Radiology
Department,13 testified that in her position at WVUH, she reviews all protocols before they
are adopted and that she never signed off on any protocol which would permit a radiologic
technologist to administer drugs, either intravenously or intramuscularly, that are not
prescribed or ordered by a physician. The foregoing “protocol excerpt” had been found in
two of the hospital’s five scanner rooms. It consisted of two pieces of paper that had been
cut from another, unidentified document and placed in a plastic sleeve.14 Ms. Headley
12
Radiologic technologist Kenneth Bragg, Appellee’s co-worker at WVUH,
testified that if he had a patient who developed an allergic reaction to contrast, he would feel
authorized to administer Benadryl intravenously pursuant to the above-quoted “protocol
excerpt.” Although he believed that he has “the clinical and didactic education and
background to push medications into patients[,]” Mr. Bragg admitted that he has never
administered Benadryl to patients who have had allergic reactions to contrast. To the
contrary, Mr. Bragg stated that in such cases, “the doctors usually were there, or you
automatically shoved the patient into the ER and they dealt with it, if you didn’t call a code.
You know, they would come into the room and deal with it as far as that.” Mr. Bragg
testified that radiologic technologists do not order medications nor do they have the ability
to do so.
13
Ms. Headley is also a radiologic technologist.
14
In each of the five scanner rooms at WVUH, there is a protocol book
available for reference and use by radiologic technologists when performing scans. The
protocol books provide information such as the amount of contrast to be injected based on
the body part or organ being scanned; the proper IV size; and the rate a radiologic
technologist should be shooting contrast.
10
testified that it was “unusual” for pieces of paper to be cut out and put into a sleeve as this
“protocol excerpt” was and, indeed, she was not sure where this one originated. She further
testified that, in her opinion, the above-quoted “protocol excerpt” in no way directed a
radiologic technologist to administer any sort of non-contrast drug without a physician’s
order. According to Ms. Headley, “[t]hese protocols would never supercede the need for a
physician’s order or a physician to be present.” Although she could not point to any state law
or Board regulation expressly prohibiting a radiologic technologist from administering
medication without physician involvement, Ms. Headley testified that it is hospital policy that
the technologist identify a concern and contact a radiologist.
The radiologist or an RN under the direction of a radiologist can
administer medications. If the patient warrants significant
assistance or has trouble breathing or is in some way in need of
emergency care, you can call a code or you can get other medical
professionals involved.
In Ms. Headley’s opinion, radiologic technologists do not have the proper training to
prescribe or administer medications without a doctor’s order.
The Hearing Examiner’s Recommended Decision concluded that Appellee’s
“administering an injection of medication without the involvement of a physician constitutes
practicing outside the scope of his Medical Imaging and Radiation Therapy Technology
license, which is in violation of West Virginia Code §30-23-1, et seq., and the West Virginia
11
Code of State Rules §18-5-5.1.17.”15 In so concluding, the Hearing Examiner relied on, inter
alia, W.Va. Code §30-23-10(10) (2009), concerning the Scope of Practice for a Radiologic
Technologist, which includes “‘[a]dministering contrast media after consultation with, and
under the supervision of, a physician who is immediately and physically available.’” The
Hearing Examiner reasoned that
[b]ecause the law speaks specifically to the one drug that
radiologic technologists are permitted to administer, stating that
contrast media requires consultation with a physician, it can be
reasonably inferred that [Appellee] would have minimally
needed an order from a physician before administering a drug
outside of that specifically permitted, like Benadryl. Therefore,
[Appellee’s] admitted independent administration of IV
Benadryl without any involvement from a physician is a
violation of the laws as they pertain to the scope of practice of
Radiologic Technology.
The Board adopted the Hearing Examiner’s Recommended Decision and
entered a Final Administrative Order on September 25, 2009, suspending Appellee’s license
for two years followed by a three-year probationary period.16
15
18 C.S.R. §5 generally concerns the Standard of Ethics applicable to licensed
Radiologic Technologists. The “Standard of Ethics consists of the Standard of Practice and
the Code of Ethics.” 18 C.S.R. §5-1.1. The Code of Ethics, set forth in 18 C.S.R. §5-5.1,
“is intended to promote the protection, safety and comfort of patients.” Individuals who
engage in certain enumerated conduct or activities “have violated the Code of Ethics and
could be subject to sanctions.” Id. In the case sub judice, the Board found that Appellee
“practice[d] outside the scope of practice authorized by the individual’s current state permit
or license[.]” 18 C.S.R. §5-5.1.17.
16
Appellee was also ordered by the Board, inter alia, to pay the costs and fees
associated with the underlying proceedings and to complete continuing education credits
(continued...)
12
On appeal, the Circuit Court of Monongalia County reversed the Board’s Final
Administrative Order in an order entered March 26, 2010. In its Opinion Order Reversing
Administrative Order, the circuit court determined that
in light of the fact that (1) the record shows that there are no
relevant regulations, code sections, or institutional policies that
expressly prohibit [radiologic technologists] from administering
Benadryl intravenously; and (2) that there is an applicable, but
vague, institutional policy that could reasonably lead [radiologic
technologists] to believe they are authorized to intravenously
administer Benadryl when a patient develops a ‘mild to moderate
allergic reaction’ to Contrast, this Court finds that the Hearing
Examiner’s conclusion of law – that [Appellee] violated the laws
as they pertain to the scope of practice of Radiologic Technology
and was thus acting outside the scope of his practice – is clearly
wrong in view of the reliable, probative, and substantial
evidence on the whole record.
It is from the circuit court’s March 26, 2010, order that the Board now appeals.
II. Standard of Review
The Board’s decision to suspend Appellee’s medical imaging and radiation
therapy technology license was subject to the “contested cases” provision of this state’s
Administrative Procedures Act, W.Va. Code §29A-5-1, et seq. See W.Va. Code §29A-5-4(a)
(1998) (2007 Repl Vol.) and W.Va. Code §30-23-26(e) (2007). The standard of review of
16
(...continued)
under conditions specifically set forth in the Board’s order.
13
administrative proceedings by a circuit court is well settled and consistent with the language
of W.Va. Code §29A-5-4(g):
“‘Upon judicial review of a contested case under the West
Virginia Administrative Procedure 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.’ Syllabus point 2,
Shepherdstown Volunteer Fire Department v. West Virginia
Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342
(1983).” Syllabus, Berlow v. West Virginia Board of Medicine,
193 W.Va. 666, 458 S.E.2d 469 (1995).
Syl. Pt. 1, Modi v. West Virginia Bd. of Medicine, 195 W.Va. 230, 232,465 S.E.2d 230,
232 (1995).
Upon appeal of a contested case,
[a] reviewing court must evaluate the record of an administrative
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.
14
Syl. Pt. 1, Walker v. West Virginia Ethics Com’n., 201 W.Va. 108, 109-10, 492 S.E.2d 167,
168-9 (1997). See Frank’s Shoe Store v. West Virginia Human Rights Comm’n, 179 W.Va.
53, 56, 365 S.E.2d 251, 254 (1986). This Court has stated that “‘[t]he “clearly wrong” and
the “arbitrary and capricious” standards of review are deferential ones which presume an
agency’s actions are valid as long as the decision is supported by substantial evidence or by
a rational basis.’ Syl. Pt. 3, In re Queen, 196 W.Va. 442, 473 S.E.2d 483 (1996).” Webb v.
West Virginia Bd. of Medicine, 212 W.Va. 149, 155, 569 S.E.2d 225, 231 (2002).
Further appeal may be had to this Court after entry of a final order by the circuit
court, pursuant to W.Va. Code §29A-6-1 (1964).17 The circuit court order appealed herein
reversed the Board’s decision that Appellee practiced outside the scope of his medical
imaging and radiation therapy technology license when he administered intravenous
medication to a patient without physician involvement. “‘“In cases where the circuit court
has [reversed] 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
17
W.Va. Code §29A-6-1 (1964) provides:
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.
15
abuse of discretion standard and reviews questions of law de novo.” Syl. pt. 2, Muscatell v.
Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).’ Syllabus point. 1, Hoover v. West Virginia
Board of Medicine, 216 W.Va. 23, 602 S.E.2d 466 (2004).” Syl. Pt. 1, Crouch v. West
Virginia Div. of Motor Vehicles, 219 W.Va. 70, 71, 631 S.E.2d 628, 629 (2006).
With these standards in mind, we shall consider the issue raised in the Board’s
appeal.
III. Discussion
At issue in this appeal is whether the circuit court improperly substituted its
judgment for that of the Board with regard to whether Appellee acted outside the scope of
practice for a radiologic technologist when he administered Benadryl intravenously to a
patient without the involvement of a physician. The circuit court concluded that the Board
was clearly wrong in view of the reliable, probative and substantial evidence on the whole
record because (1) “there are no relevant regulations, code sections, or institutional policies
that expressly prohibit [radiologic technologists] from administering Benadryl
intravenously;” and (2) the “protocol excerpt” was “vague” and “could reasonably lead
[radiologic technologists] to believe they are authorized to intravenously administer Benadryl
when a patient develops a ‘mild to moderate allergic reaction’ to Contrast[.]”
16
In “the interest of public health,” the Legislature determined that “a person
performing medical imaging or radiation therapy technology in this State shall be licensed[,]”
W.Va. Code §30-23-1(2) (1977), and, to that end, set forth eligibility requirements for a
radiologic technology license, W.Va. Code §30-23-9 (2009), and outlined the scope of
practice for a radiologic technologist. W.Va. Code §30-23-10 (2009). Pursuant to W. Va.
Code §30-23-10, the scope of practice of a Radiologic Technologist includes, in relevant
part, the following:
(10) Administering contrast media after consultation with, and
under the supervision of, a physician who is immediately and
physically available; [and]
(11) Maintaining values congruent with the profession’s Code of
Ethics and scope of practice as well as adhering to national,
institutional and/or departmental standards, policies and
procedures regarding delivery of services and patient care[.]
W.Va. Code §30-23-10(10) speaks specifically to contrast media – the one drug
that radiologic technologists are permitted to administer in connection with their regular
duties as a radiologic technologist – and requires that it be administered only “after
consultation with, and under the supervision of, a physician who is immediately and
physically available.” Nowhere in W.Va. Code §30-23-10 does it authorize radiologic
technologists to administer any other type of medication, including Benadryl, without
physician involvement. This Court has previously recognized that “‘[i]n the interpretation
of statutory provisions the familiar maxim expressio unius est exclusio alterius, the express
17
mention of one thing implies the exclusion of another, applies.’ Syllabus Point 3, Manchin
v. Dunfee, 174 W.Va. 532, 327 S.E.2d 710 (1984).” Syl. Pt. 6, Phillips v. Larry’s Drive-In
Pharmacy, Inc., 220 W.Va. 484, 486, 647 S.E.2d 920, 922 (2007). “‘This doctrine informs
courts to exclude from operation those items not included in the list of elements that are given
effect expressly by statutory language.’” Gibson v. Northfield Ins. Co., 219 W.Va. 40, 47,
631 S.E.2d 598, 605 (2005) (internal citation omitted). Thus, in the absence of any statutory
language that it is within the scope of practice for a radiologic technologist to administer
medications other than contrast media, this Court finds that the circuit court’s conclusion
otherwise was in error.
We next address the circuit court’s conclusion that, pursuant to W.Va. Code
§30-23-(10)(11), the “protocol excerpt,” though “vague,” constituted some sort of
institutional policy at WVUH to which Appellee adhered when he administered the Benadryl
intravenously to his patient. As indicated above, W.Va. Code §30-23-10(11), provides that
a radiologic technologist’s scope of practice includes “‘[m]aintaining values congruent with
the profession’s Code of Ethics and scope of practice as well as adhering to national,
institutional and/or departmental standards, policies and procedures regarding delivery of
services and patient care[.]’” (Emphasis added). It is the Board’s argument that the circuit
court improperly concluded that the “protocol excerpt” “could reasonably lead [radiologic
technologists] to believe they are authorized to intravenously administer Benadryl when a
18
patient develops a ‘mild to moderate allergic reaction’ to Contrast[.]” We agree with the
Board’s argument and find the circuit court’s conclusion was in error.
First, Appellee failed to adequately establish that the “protocol excerpt” had
been adopted by WVUH as an institutional policy authorizing radiologic technologists to
administer Benadryl without physician involvement in the event a patient experienced an
allergic reaction to contrast. Ms. Headley testified that in her capacity as director of the
radiology department, she reviews all protocols before they are adopted and that she never
signed off on any protocol which would permit a radiologic technologist to administer
medications not prescribed or ordered by a physician. Indeed, she was unable to determine
from where the “protocol excerpt” at issue originated, testifying it was “unusual” for it to
have been cut from another, unidentified document and placed in a plastic sleeve in only two
of the hospital’s scanner rooms. She indicated that it is hospital policy that in the event a
patient experiences an allergic reaction to contrast, radiologic technologists are to contact a
radiologist and, contrary to any purported institutional policy stating otherwise, the
“radiologist or an RN under the direction of a radiologist can administer medications.” Ms.
Headley further testified that if the patient has trouble breathing, which Appellee testified
occurred in this case, the radiologic technologist is to call a code. Thus, according to Ms.
Headley, the “protocol excerpt’s” language that, “[i]f the allergic reaction is hives, rash,
redness or itching, the treatment is Benadryl 50 mgm IV or PO,” does not direct or authorize
19
radiologic technologists to administer the drug. Indeed, it was Ms. Headley’s testimony that
radiologic technologists do not have the proper training to either prescribe or administer
medications.18
Additionally, from our review of the record, this Court is not persuaded that
Appellee himself believed the “protocol excerpt” authorized him to administer Benadryl
intravenously in this case. In his written response to the Board’s allegations that he acted
outside the scope of his practice as a radiologic technologist, Appellee stated that there was
“no formal written policy to cover” the events that transpired; he further admitted that the
procedure at WVUH is “to call the radiologist.” During the course of the hearing, Appellee
testified that he knew what dosage of Benadryl to administer based upon the “protocol
excerpt” but also because, “over the years, you know, you work around radiology for so long
and radiologists have you draw up medications for them. . . . And of course, with my training
and my pharmocology courses, I knew appropriate doses for a patient, given heights and
weights.” While Appellee may have learned the appropriate dosage information from the
18
Assuming arguendo that the “protocol excerpt” constituted an institutional
policy at WVUH which authorized radiologic technologists to administer Benadryl without
physician involvement, the facts as recounted by Appellee establish that he failed to properly
follow it. According to Appellee, the patient had an anaphylactic reaction to the allergy
contrast, developing hives and respiratory distress. The “protocol excerpt” directs that “[i]f
the patient develops a severe allergic or anaphylactic reaction . . .Notify radiology
resident/attending. Initial treatment is Benadryl 50 mgm IV, SoluMedrol 125 mgm IV, and
Epinephrine 1:1000, 0.3 ml subcutaneously. The patient is then transferred to the
Emergency Department.” It is undisputed that Appellee failed to follow this protocol.
20
“protocol excerpt,” it was not at all clear from the evidence that he believed the “protocol
excerpt” authorized him to administer that dosage to his patient.
Based upon the above, this Court finds that the circuit court abused its
discretion in reversing the Board’s Final Administrative Order, which properly concluded
that Appellant practiced outside the scope of his medical imaging and radiation therapy
technology license, in violation of W.Va. Code §30-23-1, et seq. and 18 C.S.R. §§5-5.1 and
5.1.17, and which suspended Appellee’s license for a period of two years, as set forth in the
Board’s order. See Syl. Pt. 1, Crouch, supra.
IV. Conclusion
For the reasons stated herein, the Opinion Order Reversing Administrative
Order, entered in the Circuit Court of Monongalia County, on March 26, 2010, is hereby
reversed.
Reversed.
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