Modi v. W. Va. Board of Medicine
Annotate this Case
September 1995 Term
___________
No. 22792
___________
SHAKUNTALA MODI, M.D.,
Respondent Below, Appellee,
v.
WEST VIRGINIA BOARD OF MEDICINE,
Petitioner Below, Appellant
_______________________________________________________
Appeal from the Circuit Court of Ohio County
Honorable George L. Spillers, Judge
Civil Action No. 93-Cap-5
REVERSED AND REMANDED WITH DIRECTIONS
_______________________________________________________
Submitted: September 12, 1995
Filed: November 17, 1995
Jolyon W. McCamic
McCamic & McCamic
Wheeling, West Virginia
Attorney for the Appellee
Deborah Lewis Rodecker
Charleston, West Virginia
Attorney for the Appellant
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUSTICE RECHT, deeming himself disqualified, did not participate in the consideration and
decision of this case.
JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.
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).
2. "The requirement of West Virginia Code § 29A-5-3 that an administrative
agency rule on the parties' proposed findings is mandatory and will be enforced by the
courts. Although the agency does not need to extensively discuss each proposed finding,
such rulings must be sufficiently clear to assure a reviewing court that all those findings have been considered and dealt with, not overlooked or concealed." Syllabus point 4, St. Mary's
Hospital v. State Health Planning and Development Agency, 178 W.Va. 792, 364 S.E.2d 805
(1987).
3. "When W.Va. Code, 29A-5-3 [1964] says: 'Every final order or decision
rendered by any agency in a contested case shall be in writing or stated in the record and
shall be accompanied by findings of fact and conclusions of law. . . .' the law contemplates
a reasoned, articulate decision which sets forth the underlying evidentiary facts which lead
the agency to its conclusion, along with an explanation of the methodology by which any
complex, scientific, statistical, or economic evidence was evaluated. In this regard if the
conclusion is predicated upon a change of agency policy from former practice, there should
be an explanation of the reasons for such change." Syllabus point 2, Citizens Bank of
Weirton v. West Virginia Board of Banking and Financial Institutions, 160 W.Va. 220, 233 S.E.2d 719 (1977).
4. "In administrative appeals where there is a record involving complex
economic or scientific data which a court cannot evaluate properly without expert knowledge
in areas beyond the peculiar competence of courts, neither this Court nor the trial courts will
attempt to determine whether the agency decision was contrary to the law and the evidence
until such time as the agency presents a proper order making appropriate findings of fact and conclusions of law." Syllabus point 3, Citizens Bank of Weirton v. West Virginia Board of
Banking and Financial Institutions, 160 W.Va. 220, 233 S.E.2d 719 (1977).
5. Where an administrative agency has conducted a contested hearing through
a hearing examiner and determines that it should amend the findings of fact or conclusions
of law recommended by the hearing examiner, a reasoned, articulate statement of the reasons
for the amended findings of fact or conclusions of law adopted by the agency is essential to
the validity of those findings or conclusions and to their ready acceptance by reviewing
courts. Such is particularly the case where the agency is making its decision based on
economic or scientific data within the presumed expertise of the agency or where the agency
has not heard or received the underlying evidence from which it is drawing conclusions
different from those of the hearing examiner.
Albright, Justice:
This case is a contested administrative proceeding under W.Va. Code § 29A-5-
1, et seq., initiated by the West Virginia Board of Medicine (the Board) pursuant to the
disciplinary authority of W.Va. Code § 30-3-14,See footnote 1 against Shakuntala Modi, M.D., a psychiatrist. Dr. Modi is a physician licensed in West Virginia and is engaged in a solo
practice in Wheeling. The disciplinary proceeding grows out of Dr. Modi's care and
treatment of William Abbott by use of a technique known as depossession therapy. The
Notice of Hearing prepared by the Board and served on Dr. Modi charged:
6. Depossession therapy is not care and treatment
recognized by a reasonable, prudent physician engaged in the
same specialty as being acceptable under similar conditions and
circumstances, and accordingly, Dr. Modi has violated West
Virginia Code § 30-3-14(c)(17), and Board regulation 11 CSR
1A 12.1(x), in her care and treatment of the complainant [Mr.
Abbott] on June 1, 1990.
7. Dr. Modi's use of depossession therapy in her care
and treatment of the complainant on June 1, 1990, and in her
medical practice generally, constitutes performing procedures or
prescribing a therapy that by the accepted standards of medical
practice in the community constitutes experimentation on human
subjects without first obtaining full, informed and written
consent, and accordingly, Dr. Modi has violated West Virginia
Code § 30-3-14(c)(14), (17), and Board regulations 11 CSR 1A
12.1(y).
8. Dr. Modi's billing to the complainant's insurer, Blue
Cross Blue Shield of West Central West Virginia in
Parkersburg, for the care and treatment rendered to the
complainant on June 1, 1990, by her, was a falsely filed report
which Dr. Modi knew was false, because depossession therapy
is not a form of psychotherapy recognized as acceptable under similar conditions and circumstances by a reasonable, prudent
physician, engaged in the same specialty, and accordingly, Dr.
Modi has violated West Virginia Code § 30-3-14(c)(5), (17),
and Board regulations 11 CSR 1A 12.1(p).
9. Dr. Modi's use of depossession therapy, as set forth in
paragraph 4, and her billing to the insurer, as set forth in
paragraph 5, constitutes unprofessional conduct, and
accordingly, Dr. Modi has violated West Virginia Code § 30-3-
14(c)(17) and Board regulation 11 CSR 1A 12.1(j).
Dr. Modi filed an answer admitting the use of depossession therapy and
denying any conduct justifying disciplinary action. After lengthy procedural manuevers and
extensive hearings, the hearing examiner, Edward C. Goldberg, prepared a thirty-six page
report of "Recommended Findings of Fact and Conclusions of Law" which rather fully
discussed the issues of procedure, law and facts in the case.
UNDERLYING FACTS
From the hearing examiner's report it may be ascertained that on June 1, 1990,
the appellee here, Dr. Shakuntala Modi, undertook to treat Mr. William Abbott in her office
by use of depossession therapy. According to Dr. Modi, depossession therapy involves the
use of hypnosis or hypnotherapy to relieve individuals of fears arising from such individuals'
beliefs or feelings that they are or may be possessed by spirits. Dr. Modi also testified that
the use of depossession therapy does not imply that the practitioner believes his or her patient is possessed by such spirits, but requires only that the practitioner conclude that the patient
being treated believes himself or herself to be so possessed.
It appears that preparatory to this session, Dr. Modi discussed the proposed use
of the therapy with a hypnotist who had previously treated Mr. Abbott and who had
accompanied Mr. Abbott to Dr. Modi's office and took a rather complete history from Mr.
Abbott. It further appears that Dr. Modi did not thoroughly discuss the intended therapy with
Mr. Abbott or obtain a written consent for the therapy from him. After commencing the
depossession therapy session with Mr. Abbott, it appears that Dr. Modi worked with the
patient for about four hours, utilizing what Dr. Modi described as hypnotherapy. According
to Mr. Abbott, Dr. Modi engaged in various incantations and called upon angels to lift dead
souls out of his body in the course of the extended therapy session.
Mr. Abbott filed a complaint against Dr. Modi with the West Virginia Board
of Medicine regarding his depossession treatment. Based on the complaint the Board then
instituted the present proceeding, setting forth the charges quoted above, including the charge
that Dr. Modi had improperly billed an insurance company $480.00 for psychotherapy when,
in fact, she had engaged in depossession therapy.
During the proceedings before the hearing examiner extensive evidence was
developed regarding the circumstances surrounding Dr. Modi's treatment of Mr. Abbott and, of particular importance here, on the question of whether depossession therapy was an
accepted form of medical treatment which would not require a written informed consent or
whether it was an experimental treatment which would require such a consent.
THE DECISIONS BELOW
The hearing examiner's report described five ultimate issues, which may be
summarized as follows:
1. Did the Board establish that by using depossession
therapy on Mr. Abbott, Dr. Modi violated Code § 30-3-
14(c)(17) and Board Reg. 12.1(x) See footnote 2 because a reasonable,
prudent physician in the same specialty would not recognize
depossession therapy as being acceptable under similar
conditions and circumstances?
2. Did Dr. Modi violate Code § 30-3-14(c)(14) and (17)
and Board Reg. 12.1(y) by using an experimental therapy
without first obtaining a full, informed and written consent from
Mr. Abbott?
3. Did Dr. Modi violate Code § 30-3-14(c)(5)(17) and
Board Reg. 12.1(p) by filing a false report with the patient's
insurance carrier when she described her use of depossession
therapy as psychotherapy when depossession therapy is not
recognized by reasonable, prudent physicians in the same
specialty as being acceptable under similar conditions and
circumstances?
4. Did Dr. Modi engage in unprofessional conduct in
violation of Code § 30-3-14(c)(17) and Board Reg. 12.1(j) by
using depossession therapy and billing the patient's insurer for
the service?
5. If it is found that Dr. Modi violated the cited sections
in one or more particulars, what is the appropriate sanction to be
imposed?
In his report, the hearing examiner concluded that the Board of Medicine had
the burden of proof to establish its charges by "full, preponderating and clear evidence". He
further concluded that Dr. Modi was entitled to adduce evidence from experts who were not
licensed to practice medicine in any of the United States on the issues of whether
depossession therapy is a legitimate form of care and treatment and whether such therapy is
experimental.
Based on the evidence before him, the hearing examiner stated that the Board
had proved that depossession therapy is indeed experimental and that Dr. Modi had obtained
neither written nor informed consent from the patient. He further concluded that Dr. Modi's
use of depossession therapy was legitimate care and treatment for which Dr. Modi is entitled
to bill patients and their insurers and that, consequently, the billing to the insurance carrier
was not false billing and was not unprofessional conduct. Lastly, the hearing examiner
rejected the parties' proposed findings of fact that were inconsistent with these conclusions
after a lengthy discussion of the evidentiary bases for his various conclusions.
Having found that Dr. Modi violated W.Va. Code § 30-3-14(c)(14) and (17)
by the use of an experimental therapy without first obtaining a full, informed and written
consent, the hearing examiner recommended to the Board that Dr. Modi be sanctioned by:
(1) a public reprimand (2) being required to undergo additional education on the subject of
informed consent and (3) a civil fine of $1,000.See footnote 3
Upon submission of the hearing examiner's report to the Board, a twelve page
order was issued by the Board which incorporated the hearing examiner's report with
extensive changes. The Board order offers no explanation for those changes. The changes
were accomplished by references in the Board order to pages in the examiner's report,
excising certain material by such references and adding other material. The Board excised
over twenty-one pages of the hearing examiner's report and added perhaps a page or two of
material.See footnote 4
In the conclusionary portion of the order, the Board found that Dr. Modi is
unqualified to practice medicine without certain limitations. With respect to sanctions, the
Board order adopted the hearing examiner's recommendation for a public reprimand and a
fine of $1,000. It also adopted and expanded upon the education recommendation.See footnote 5 Finally, the Board order required that Dr. Modi develop and obtain Board approval of a particular
form of "informed" written consent for the use of depossession therapy and that a copy of
the approved form, signed by any patient undergoing depossession therapy, be submitted by
Dr. Modi with any bill sent an insurance company for such therapy.
Dr. Modi appealed the Board order to the Circuit Court of Ohio County. The
circuit court reversed and vacated the Board order upon a finding that it was arbitrary and an abuse of discretion. The court found that the Board had failed to give a concise and
explicit statement of the facts upon which the Board based its decision. The court also found
that the Board failed to supply reasons for rejecting Dr. Modi's proposed findings of fact and
for rejecting the hearing examiner's determination that expert testimony offered on behalf of
Dr. Modi from persons other than physicians licensed to practice in the United States should
be considered by the Board. Further, the court concluded that the Board acted arbitrarily in
imposing on Dr. Modi the requirements regarding consent forms and billing practices with
respect to depossession therapy.See footnote 6
The Board of Medicine appealed the circuit court's order to this Court. Five
errors are assigned, as follows:
1. The Circuit Court erred, was clearly wrong, and
violated applicable law, in deciding that the Board's requirement
was in error that Dr. Modi utilize a written consent form when
engaging in depossession or spirit releasement therapy with
patients.
2. The Circuit Court erred, was clearly wrong, and
violated applicable law, in directing that the Board's January 14,
1993, Order be reversed and vacated, in the absence of any
evidence and determination by the Circuit Court that the
evidentiary findings made by the Board were wrong.
3. The Circuit Court made no determination that the
substantial rights of Dr. Modi had been prejudiced by the
Board's findings, inferences, conclusions decision or order, and in the absence of such a determination, erred, was clearly
wrong, and in violation of applicable law, in directing that the
Board's January 14, 1993, Order be reversed and vacated.
4. The Circuit Court erred, was clearly wrong, and
violated applicable law, in directing that the Board's January 14,
1993, Order be reversed and vacated, as such a direction is not
in the public interest which the Board by law is required to
protect.
5. The Circuit Court erred, was clearly wrong, and
violated applicable law, by issuing an ex parte stay without an
opportunity for the Board to be heard before granting the stay.
In support of those assignments of errors, the Board of Medicine essentially
claims that the basis of its finding was adequately articulated, that there was adequate
evidence to support its findings, and that the sanctions which it imposed were appropriate.
After reviewing the record, this Court concludes that the circuit court was
correct in finding that the Board made inadequate findings of fact and incorrect conclusions
of law. The court below properly concluded that the billing requirement imposed upon Dr.
Modi was arbitrary and capricious and was done without legal authority. We note here that
a "cut and paste" version of the hearing examiner's report, as amended by the Board order,
has been carefully and repeatedly studied in an effort to discern "a reasoned, articulate
decision which sets forth the underlying evidentiary facts which" led the Board to its
conclusions. The exercise has not been successful. We agree with the court below "that,
based on the complete record of these proceedings, the order of the Board . . . is arbitrary and an abuse of discretion." However, given the finding by the hearing examiner and the Board
that Dr. Modi used an experimental therapy without obtaining a signed, written and informed
consent, we conclude that the court below, in addition to reversing the Board order should
have also remanded the cause to the Board for reconsideration of the issues and an
appropriate, reviewable order. Therefore, the judgment of the circuit court must be reversed
and this cause remanded for further proceedings consistent with this opinion.
THE STANDARDS FOR REVIEW
In approaching the issues raised in the present appeal, the Court notes that in
Berlow v. West Virginia Board of Medicine, 193 W.Va. 666, 458 S.E.2d 469 (1995), we
recently held that the West Virginia Administrative Procedure Act, W.Va. Code § 29A-5-1,
et seq., establishes the guidelines to be followed by circuit courts in reviewing decisions of
the West Virginia Board of Medicine. We said:
"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).
We have previously concluded that findings of fact made by an administrative
agency will not be disturbed on appeal unless such findings are contrary to the evidence or
based on a mistake of law. In other words, the findings must be clearly wrong to warrant
judicial interference. Billings v. Civil Service Commission, 154 W.Va. 688, 178 S.E.2d 801
(1971). Accordingly, absent a mistake of law, findings of fact by an administrative agency
supported by substantial evidence should not be disturbed on appeal. West Virginia Human
Rights Commission v. United Transportation Union, 167 W.Va. 282, 280 S.E.2d 653 (1981);
Bloss & Dillard, Inc. v. West Virginia Human Rights Commission, 183 W.Va. 702, 398 S.E.2d 528 (1990).
We have also given consideration to W.Va. Code § 29A-5-3 and prior
interpretations of that section by this Court. West Virginia Code § 29A-5-3 requires that:
Every final order or decision rendered by any agency in
a contested case shall be in writing or stated in the record and
shall be accompanied by findings of fact and conclusions of
law. Prior to the rendering of any final order or decision, any
party may propose findings of fact and conclusions of law. If
proposed, all other parties shall be given an opportunity to
except to such proposed findings and conclusions, and the final
order or decision shall include a ruling on each proposed
finding. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the
underlying facts supporting the findings. . . .
After examining this statutory enactment, this Court concluded, in syllabus
point 4 of St. Mary's Hospital v. State Health Planning and Development Agency, 178 W.Va.
792, 364 S.E.2d 805 (1987):
The requirement of West Virginia Code § 29A-5-3 that
an administrative agency rule on the parties' proposed findings
is mandatory and will be enforced by the courts. Although the
agency does not need to extensively discuss each proposed
finding, such rulings must be sufficiently clear to assure a
reviewing court that all those findings have been considered and
dealt with, not overlooked or concealed.
Finally, we note that this Court has construed W.Va. Code § 29A-5-3 to
require fully articulated bases for agency determinations, particularly where economic or
scientific matters are at issue:
2. When W.Va. Code, 29A-5-3 [1964] says: "Every
final order or decision rendered by any agency in a contested
case shall be in writing or stated in the record and shall be
accompanied by findings of fact and conclusions of law. . . ."
the law contemplates a reasoned, articulate decision which sets
forth the underlying evidentiary facts which lead the agency to
its conclusion, along with an explanation of the methodology by
which any complex, scientific, statistical, or economic evidence
was evaluated. In this regard if the conclusion is predicated
upon a change of agency policy from former practice, there
should be an explanation of the reasons for such change.
3. In administrative appeals where there is a record
involving complex economic or scientific data which a court cannot evaluate properly without expert knowledge in areas
beyond the peculiar competence of courts, neither this Court nor
the trial courts will attempt to determine whether the agency
decision was contrary to the law and the evidence until such
time as the agency presents a proper order making appropriate
findings of fact and conclusions of law.
Syllabus points 2 and 3, Citizens Bank of Weirton v. West Virginia Board of Banking and
Financial Institutions, 160 W.Va. 220, 233 S.E.2d 719 (1977).
ERRORS OF LAW BELOW
Appellants complain that the circuit court was clearly wrong in reversing the
Board of Medicine in the absence of any evidence and determination that the evidentiary
findings made by the Board were wrong. We disagree. As previously indicated, the Board
order, cobbled together by the expedient of additions to and excisions from the hearing
examiners report, is barely intelligible, if at all. The Board order utterly fails to address the
findings of fact and conclusions of law proposed by the parties or the reasons for rejecting
such findings. As is noted in St. Mary's Hospital v. State Health Planning and Development
Agency, supra, the requirement that the agency rule on such proposed findings and
conclusions is mandatory and will be enforced by the courts.
Likewise, we are unable to discern from the Board order "a reasoned, articulate
decision which sets forth the underlying evidentiary facts which lead the agency to its conclusion", as is required by syllabus point 2 of Citizens Bank of Weirton v. West Virginia
Board of Banking and Financial Institutions, supra. It appears that the lack of such a
reasoned, articulate decision flows, at least in part, from the rejection by the Board of
Medicine of the hearing examiner's recommended conclusion of law allowing the admission
and consideration of the testimony of Dr. Modi's experts who were not physicians currently
licensed to practice medicine in one of the United States. The Board argued below and
argues here that W.Va. Code § 55-7B-7See footnote 7 is applicable to disciplinary proceedings for
physicians and, therefore, testimony offered in Dr. Modi's behalf by experts not licensed to
practice medicine in one of the United States could not be considered by the hearing
examiner or the Board. The hearing examiner disagreed, and so do we.
West Virginia Code § 55-7B-1, et seq., relates to tort actions against health
care providers, including physicians, not to disciplinary proceedings before the Board of
Medicine.See footnote 8 West Virginia Code § 55-7B-7 requires, among other limiting factors, that expert
testimony in "medical professional liability cases by the plaintiff" be elicited only from
experts with a "current license to practice medicine in one of the states of the United States".
A medical professional liability action is defined as an action for damages in tort or contract.
W.Va. Code § 55-7B-2(d). It is clear that a disciplinary proceeding by the Board of
Medicine is not such an action. Moreover, the continued vitality of W.Va. Code § 55-7B-7
even in tort or contract actions is doubtful in light of this Court's holding in Mayhorn v.
Logan Medical Foundation, 193 W.Va. 42, 454 S.E.2d 87 (1994), that Rule 702 of the West
Virginia Rules of Evidence, rather than W.Va. Code § 55-7B-7, is the paramount authority
for determining whether or not an expert is qualified to give an opinion. Accordingly, the
Board of Medicine erroneously refused to consider, for whatever its probative value,See footnote 9 the otherwise admissible testimony of experts supportive of Dr. Modi's assertion that
depossession therapy is a recognized form of treatment and is not experimental. That error
of law subjects the Board's findings on those two issues to scrutiny by this Court and the
circuit court and requires that the conclusions of the Board based on those findings be set
aside and that the sanctions imposed by reason of those conclusions be vacated.
We do not conclude that depossession therapy is or is not an acceptable form
of care that would be employed by a reasonable, prudent physician in the same
circumstances as those faced by Dr. Modi. We conclude only that the Board's findings in
that regard are flawed by the mistake of law just described. We conclude also that we are
confronted with the kind of agency ruling involving scientific data which the courts should
not attempt to evaluate until such time as the agency presents a proper order making
appropriate findings of fact and conclusions of law as is required by syllabus point 2 of
Citizens Bank of Weirton v. West Virginia Board of Banking and Financial Institutions,
supra. On the present record, it appears that an adequate prima facie case that Dr. Modi experimented on a human subject without obtaining the written informed consent required
by W.Va. Code § 30-3-14(c)(14) was established by the evidence.See footnote 10 However, the decision
on that issue is also flawed by the failure of the Board to give any consideration to the
evidence adduced from Dr. Modi's experts and the failure of the Board to make appropriate
findings of fact and conclusions of law; in addition, as discussed later in this opinion, the
Board's determination of what may constitute compliance with the informed consent
requirement deserves further careful review. Under the circumstances, the circuit court was
correct in reversing the decision of the Board. However, this Court believes that the circuit
court should have remanded the case to the Board for further consideration and for the
making of appropriate findings of fact and conclusions of law.
The principles enunciated in syllabus points 2 and 3 of Citizens Bank of
Weirton v. West Virginia Board of Banking and Financial Institutions, supra, quoted above,
are especially applicable to cases where the administrative agency has utilized the services
of a hearing examiner and determines that it should amend the findings or conclusions
recommended by the examiner. Where an administrative agency has conducted a contested
hearing through a hearing examiner and determines that it should amend the findings of fact
or conclusions of law recommended by the hearing examiner, a reasoned, articulate
statement of the reasons for the amended findings of fact or conclusions of law adopted by
the agency is essential to the validity of those findings or conclusions and to their ready
acceptance by reviewing courts. Such is particularly the case where the agency is making
its decision based on economic or scientific data within the presumed expertise of the agency
or where the agency has not heard or received the underlying evidence from which it is
drawing conclusions different from those of the hearing examiner.
Appellants complain further that the circuit court made no determination that
the substantial rights of Dr. Modi have been prejudiced by the Board order in this
proceeding, relying on the requirement contained in W.Va. Code § 29A-5-4 that a circuit
court reviewing an administrative order may act to reverse or modify an administrative
agency only if the substantial rights of a party are prejudiced. In this case the contention is
without merit. It is self-evident that the determinations by the Board that Dr. Modi is
unqualified to practice medicine without certain limitations and that Dr. Modi should be publicly reprimanded, fined, required to undergo certain education not required of all
physicians in her field and subjected to other special requirements, substantially affect her
rights. We have previously determined that a license to practice a recognized profession is
a valuable property right. Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953). Limitations
on the enjoyment of that property right, coupled with a public reprimand and fine, imposed
by a disciplinary body as in this case, clearly prejudice substantial rights of the holder of that
property right and justify careful scrutiny by reviewing courts of the proceedings resulting
in such action.
We now address the requirement of the Board order that Dr. Modi prepare and
have approved by the Board of Medicine a form of written consent to be signed by patients
undergoing depossession therapy. As we understand the record, it is contemplated that the
form to be prepared and approved will include both the statement of consent to be signed by
the patient and a full description of the potential "risks" and benefits envisioned by the
practitioner as a result of the use of depossession therapy. We also have reviewed carefully
the discussions contained in the report of the hearing examiner and in the circuit court order
concluding that "no written consent form is necessary". We can not discern from the
proceedings below exactly what the hearing examiner and the circuit court intended by these
comments, especially in light of the express requirement of W.Va. Code § 30-3-14(c)(14)
that any therapy constituting experimentation on human subjects must be preceded by "full,
informed and written consent". Both the hearing examiner and the circuit court cite and rely on Cross v. Trapp, 170 W.Va. 459, 294 S.E.2d 446 (1982), and Adams v. El-Bash, 175
W.Va. 781, 338 S.E.2d 381 (1985), and the presence in those cases of procedures which
invade the human body, suggesting that the case here is different by reason of depossession
therapy being a non-invasive procedure. However, the hearing examiner nevertheless found
that Dr. Modi has violated the requirement of obtaining a written, signed consent for an
experimental procedure while the circuit court appears to have reached an opposite
conclusion. The Board excised from its order the hearing examiner's statement that no
written consent form is necessary while retaining the ultimate conclusion that Dr. Modi
improperly failed to obtain a written consent from Mr. Abbott for an experimental treatment,
depossession therapy. The Board offered no explanation for its action by which we might
be enlightened. Again, the absence of a reasoned, articulate decision by the Board prevents
a full understanding why and how the Board's judgment differed from that of its hearing
examiner on this critical issue. Since the matter is to be remanded to the Board for further
consideration, we offer the following guidance with respect to the proper contents and form
of a "full, informed and written consent".
As previously noted, by reason of our determination that the Board's exclusion
of the testimony of Dr. Modi's experts was error, the issue of whether depossession therapy
is an acceptable form of treatment and the issue of whether depossession therapy is
experimental must now be fully reconsidered, with full and fair attention given to the
previously excluded expert testimony. Upon such reconsideration, if it is found that depossession therapy is experimental, not withstanding its non-invasive nature, then careful
consideration must be given to whether the writing signed by the patient about to undergo
depossession therapy must contain on its face a written description of the potential risks and
benefits of such therapy. We do not now express an opinion on that question, deferring, as
we should, to the expertise presumed to be inherent in an administrative agency created to
deal with such complex issues.
It does appear that the Board of Medicine failed to consider fully the
implications of a requirement that the written consent form contain the panoply of
information that might be considered to be necessary to a full, informed consent and perhaps
failed to consider fully how the wide variety of patients likely to undergo an "experimental"
procedure in the future might be best be brought to a suitable appreciation of the anticipated
risks and benefits of a particular experimental procedure. Mindful that the resolution of such
difficult questions involves complex issues of patient care and treatment which go far beyond
the question of "depossession therapy", we leave the proper determination of the contents
of the written consent form for consideration on remand. Having in mind the rapid advances
that have been made in medical science in recent years, we caution that the determination
could have a significant impact on what might be considered "experimental" procedures in
the future and, absent careful consideration, may markedly expand the legal requirements
for "informed consent". At this time, we defer to the administrative agency created to
consider those issues on behalf of the medical profession. Given the wide ranging implications of such a determination, it may be appropriate for the Board of Medicine to
address this matter by issuance of a regulation rather than by dealing with it in the confined
circumstances of a contested administrative proceeding.
Next, we address the requirement of the Board that Dr. Modi submit to any
insurance carrier for a patient undergoing depossession therapy a copy of the previously
approved informed consent form signed by the subject patient. From the record, we glean
that the Board of Medicine, having disapproved of the therapy as an acceptable form of
treatment, having rejected Dr. Modi's experts contrary to the hearing examiner's advice and
contrary to law, and having declared depossession therapy experimental, wished to prevent
practitioners of the therapy from being paid by insurance carriers for the therapy. However,
we also note from the record that the Board of Medicine did not undertake to prohibit Dr.
Modi from using the therapy; rather the Board specified certain education and the
preparation of the consent forms just discussed, thereby at least implicitly acknowledging the
right of Dr. Modi to utilize the procedure in her practice. The court below found the Board's
requirement that the consent form be submitted to an insurance carrier arbitrary. We agree.
West Virginia Code § 30-3-4(i) sets forth the sanctions which may be imposed by the Board
of Medicine upon a physician. After reviewing the statutory language, this Court cannot
conclude that the Legislature has in any manner authorized the Board of Medicine to regulate or intervene in the manner directed by the Board order in the process by which physicians
bill insurers for treatment.See footnote 11
Finally, the appellants complain that the reversal and vacation of the order of
the Board of Medicine was clearly wrong as not in the public interest.See footnote 12 As we have noted
in this opinion, the court below had ample reason to reverse the Board of Medicine.
However, we have disapproved the vacation of the Board order in this case without further
proceedings. Specifically, we have addressed the necessity that certain issues be
reconsidered and have determined that at least one of the sanctions imposed on Dr. Modi is
inappropriate. It may also appear upon reconsideration of the issues as directed here that one
or more of the remaining sanctions are also inappropriate.
For the reasons stated, the judgment of the Circuit Court of Ohio County is
reversed. This case is remanded for further proceedings consistent with this opinion. Upon
remand, the West Virginia Board of Medicine shall undertake such reconsideration of the
issues as may be appropriate and render in any subsequent order a reasoned, articulate
decision, accompanied by appropriate findings of fact and conclusions of law.
Reversed and remanded with directions.
Footnote: 1
The relevant portions of the statute under which violations by Dr. Modi was
charged are set forth below; the Board regulations cited in the Notice of Hearing are direct
quotations of the statutory provisions recited here.
(c) The board may deny an application for license or
other authorization to practice medicine and surgery or podiatry
in this state and may discipline a physician or podiatrist licensed
or otherwise lawfully practicing in this state who, after a
hearing, has been adjudged by the board as unqualified due to
any of the following reasons:
* * *
(5) Making or filing a report that the person knows to be
false; intentionally or negligently failing to file a report or
record required by state or federal law; willfully impeding or
obstructing the filing of a report or record required by state or
federal law; or inducing another person to do any of the
foregoing. Such reports and records as are herein covered mean
only those that are signed in the capacity as a licensed physician
or podiatrist.
* * *
(14) Performing any procedure or prescribing any
therapy that, by the accepted standards of medical practice in
the community, would constitute experimentation on human
subjects without first obtaining full, informed and written
consent.
* * *
(17) Violating any provision of this article or a rule or
order of the board, or failing to comply with a subpoena or
subpoena duces tecum issued by the board. Footnote: 2
See note 1 for the relevant statutory provisions referred to by the hearing
examiner; the board regulations cited are direct quotes of the statutory provisions.Footnote: 3
Specifically, the hearing examiner recommended:
Dr. Modi's license should not be revoked, nor suspended.
Her therapy with Mr. Abbott did not effectively preclude him
from obtaining alternative assistance from other health
providers, including psychiatrists and/or hypnotherapists, after
they terminated their professional relationship, which began and
ended on June 1, 1990. The record clearly indicates that she is
effective with many of her patients. . . .
A public reprimand is, however, warranted for her failure
to secure the informed consent of Mr. Abbott prior to the
commencement of therapy. There is little question that she
should have directly explained to Mr. Abbott the benefits, as
well as the risks, incident to her therapy. She should also have
clearly indicated to him that her form of psychotherapy is
considered controversial, by many. Even though this failure to
obtain the informed consent of Mr. Abbott on June 1, 1990,
occurred in the course of a practitioner's unblemished practice,
it should not be overlooked and condoned.
I would further recommend that Dr. Modi be required to
participate in some form of education prescribed by the Board
which emphasizes the need for informed consent, especially
when one is practicing as a pioneer in a controversial area. It is
my opinion that Dr. Modi did not understand, and may still not
fully understand, the need to inform her patients of the risks
incident to psychotherapy, hypnotherapy and especially that
which is termed "depossession therapy". It is not enough to
inform patients of the anticipated benefits of treatment. It is
also important to explain the risks incident thereto. Even though
Dr. Modi appears to sincerely believe in the benefits of
depossession therapy, she must provide her patients with an
opportunity to make a meaningful decision whether or not to
undergo such therapy.
Further, it is the recommendation of the undersigned that
a civil fine of $1,000.00 be assessed. . . .Footnote: 4
As examples of the structure of the Board's order we quote the following
excerpts:
[T]he Board adopts the Findings of Fact and Conclusions
of Law recommended by the Hearing Examiner beginning at
page 9 at section V. and continuing through page 33 at the end
of D. Informed Consent, with the following modifications:
The Board strikes and does not adopt the language
beginning at B. Standard of Care and Treatment on page 13
through the paragraph ending . . . "time was a factor.", on page
25.
The Board strikes and does not adopt at D. Informed
Consent, on page 30, the following sentences, "On the other
hand, Dr. Tinnin is incorrect in his insistence upon written
documented informed consent, under the West Virginia law.
There is simply no such legal requirement for written informed
consent in West Virginia which this Hearing Examiner is aware
of at this time". Further, the Board strikes and does not adopt
the language on page 30, "except the testimony regarding the
written documentation portion of informed consent". In the first
full paragraph on page 32, the Board strikes and does not adopt
the words "form consent", and inserts in lieu thereof the words
"informed consent".
The Board adds at D. Informed Consent, on page 32,
after the paragraph ending "the thrust of informed consent.", the
following:
"Further, the Code of Medical Ethics, Current Opinions
of the Council on Ethical and Judicial Affairs of the American
Medical Association specifically states:
8.08 INFORMED CONSENT. The patient's right
of self-decision can be effectively exercised only
if the patient possesses enough information to
enable an intelligent choice. The patient should
make his or her own determination on treatment.
The physician's obligation is to present the
medical facts accurately to the patient or to the
individual responsible for the patient's care and to
make recommendations for management in
accordance with good medical practice. The
physician has an ethical obligation to help the
patient make choices from among the therapeutic
alternatives consistent with good medical
practice. Informed consent is a basic social
policy for which exceptions are permitted
(1) where the patient is unconscious or otherwise
incapable of consenting and harm from failure to
treat is imminent; or (2) when risk-disclosure
poses such a serious psychological threat of
detriment to the patient as to be medically
contraindicated. Social policy does not accept the
paternalistic view that the physician may remain
silent because divulgence might prompt the
patient to forego needed therapy. Rational,
informed patients should not be expected to act
uniformly, even under similar circumstances in
agreeing to or refusing treatment. (I, II, III, IV,
V)
* * *
The Hearing Examiner's Recommendation is attached
hereto and only to the extent specified, and consistent with the
findings and conclusions set forth in this Order, is incorporated
by reference herein...
Further, to the extent that the Findings and Conclusions
found in this Order are generally consistent with any proposed
Findings of Fact and Conclusions of Law submitted by the
parties, the same are adopted by the West Virginia Board of
Medicine, and conversely, to the extent that the same are
inconsistent with these findings and conclusions, the same are
rejected.Footnote: 5
The Board's order regarding education reads as follows:
As a program of education, the Respondent shall review
and study The Belmont Report, Ethical Principles and
Guidelines for the Protection of Human Subjects of Research of
the National Commission for the Protection of Human Subjects
of Biomedical and Behavioral Research, and then the
Respondent shall develop and utilize an informed consent form
in her practice of depossession or spirit releasement therapy,
which all patients undergoing hypnotherapy will review and
sign prior to undergoing hypnotherapy. Such consent form shall
include provisions clearly enunciating the fact that the
hypnotherapy may include depossession or spirit releasement
therapy, which is experimental, and that all the risks associated
with it are not known because of the lack of scientific basis for
such therapy. Such consent form shall clearly enunciate that
any patient undergoing such therapy will be responsible for the
payment of any bill from the Respondent for the Respondent's
care and treatment in this regard, that if an insurer is billed, a
copy of the signed consent form shall be submitted to the insurer
with any request for payment by the physician, and that any
hypnotherapy which includes the use of depossession or spirit
releasement therapy, if billed to an insurer, will be billed
accurately to the insurer as depossession therapy or spirit
releasement therapy, not as psychotherapy. Within thirty (30)
days of the date of this Order, such consent form shall be
submitted to the Board for its review and approval.Footnote: 6
The court said:
The Board may adopt, modify or reject the findings and
conclusions of the Hearing Examiner, 11 CSR 3 13.2.
Limitations on those actions are made in an important West
Virginia case, St. Mary's Hospital v. State Health Planning and
Development Agency, 178 W.Va. 792, 364 SE2nd [sic] 805
(1987). This case states that a concise and explicit statement of
the facts upon which the Board reached its decision should be
given. Also any proposed findings of the Petitioner should be
ruled upon and a reason for their rejection should be given. The
Code requires a reasoned, articulate decision that contains the
evidentiary facts that allowed the Board to reach its decision,
W.Va. Code 29A-5-3.
In this case the Board failed to enumerate its reasons for
rejecting the Petitioner's findings and the Board does not supply
reasoning for rejecting the Hearing Examiner's acceptance of the
testimony of Dr. Modi's expert witnesses. Nor is reasoning
supplied by the Board for rejecting the Hearing Examiners
finding that Dr. Modi did not file a false report.
In holding that depossession therapy was not
experimental, the circuit court stated:
The Petitioner [Dr. Modi] furnished expert testimony
from practitioners who stated that depossession therapy is a
recognized form of treatment and that it is a method of
hypnotherapy . . . Nevertheless, the Board accepted the Hearing
Examiner's finding that Petitioner's therapy was experimental
and therefore it required the patient's informed consent.
On the arbitrariness of requiring Dr. Modi to submit a
written form to insurers, the court stated:
It is arbitrary for the Board to dictate that the Petitioner
[Dr. Modi] develop and use a written consent form to be
supplied to insurers for payment which sets forth the use of
depossession therapy, not as psychotherapy. First, no written
consent form is necessary and second the Board is attempting to
define how claims should be filed. This is matter between the
Board and the insurance provider.Footnote: 7
West Virginia Code § 55-7B-7 reads as follows:
The applicable standard of care and a defendant's failure
to meet said standard, if at issue, shall be established in medical
professional liability cases by the plaintiff by testimony of one
or more knowledgeable, competent expert witnesses if required
by the court. Such expert testimony may only be admitted in
evidence if the foundation, therefor, is first laid establishing
that: (a) The opinion is actually held by the expert witness;
(b) the opinion can be testified to with reasonable medical
probability; (c) such expert witness possesses professional
knowledge and expertise coupled with knowledge of the
applicable standard of care to which his or her expert opinion
testimony is addressed; (d) such expert maintains a current
license to practice medicine in one of the states of the United
States; and (e) such expert is engaged or qualified in the same
or substantially similar medical field as the defendant health
care provider.
Footnote: 8
A single reference to the regulation and discipline of health care providers,
including physicians, is found in the introductory section of Article 7B, (W.Va. Code § 55-
7B-1), a statement of legislative findings and purpose. It is noted that a partial revision of
the "West Virginia Medical Practice Act" (W.Va. Code § 30-3-1, et seq.) was accomplished
in the same act of the Legislature by which W.Va. Code § 55-7B-1, et seq., was enacted.
(1986 Acts, ch. 106). However, no legislative intent can be discerned from the entirety of
Chapter 106 to effect any limitation on the nature of expert testimony in physician discipline
cases other than that provided by general law and the rules of evidence to the extent
applicable to such proceedings. Footnote: 9
Rule 702 of the West Virginia Rules of Evidence provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise.
The report of the hearing examiner adequately demonstrates the admissibility
of the subject testimony under this standard, subject, as noted above, to the reasonable
discretion of the hearing examiner and the Board to accord to it such weight as may be
deemed appropriate.Footnote: 10
There was conflicting evidence on whether depossession therapy is
experimental by the accepted medical standards in the community. Dr. Modi adduced
evidence suggesting that it was not. On the other hand, the Board adduced the testimony of
Dr. Louis W. Tinnin, a psychiatrist and associate professor of psychiatry at West Virginia
University School of Medicine, which proceeded as follows:
Q: Let me ask you this, Dr. Tinnin, if you have formed an
opinion regarding whether the use of depossession
therapy by the accepted standards of medical practice in
the community constitutes experimentation on human
subjects?
A: I believe that it does constitute experimentation.
Additionally, the evidence indisputably shows that Dr. Modi failed to obtain
the written consent of Mr. Abbott before engaging in dispossession therapy, even though she
did orally discuss the therapy with him and even though he did apparently orally consent to
it.Footnote: 11
West Virginia Code § 30-3-14(i) provides:
(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.Footnote: 12
Appellants assign as error the grant by the Court below of a preliminary
injunction or stay, ex parte. We do not address that assignment of error. We consider it
moot.
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