Clark v. West Virginia Bd. of Medicine

• Decision Date: 17 July 1998
• Docket Number: No. 23789, No. 23790.
• Citation: 508 S.E.2d 111,203 W.Va. 394
• Court: West Virginia Supreme Court
• Parties: Thomas S. CLARK, M.D., Appellant, v. WEST VIRGINIA BOARD OF MEDICINE, Appellee. Thomas S. CLARK, M.D., Appellee, v. WEST VIRGINIA BOARD OF MEDICINE, Appellant.

508 S.E.2d 111

203 W.Va. 394

Thomas S. CLARK, M.D., Appellant, v. WEST VIRGINIA BOARD OF MEDICINE, Appellee.

Thomas S. CLARK, M.D., Appellee, v. WEST VIRGINIA BOARD OF MEDICINE, Appellant.

Nos. 23789, 23790.

Supreme Court of Appeals of West Virginia.

Submitted October 14, 1998.

Decided July 17, 1998.

Andrew G. Fusco, Esq., Jeffrey A. Ray, Esq., Fusco & Newbraugh, L.C., Morgantown, West Virginia, and Franklin D. Cleckley, Esq., Morgantown, West Virginia, Attorneys for Thomas S. Clark, M.D.

Deborah Lewis Rodecker, Esq., Charleston, West Virginia, Attorney for West Virginia Board of Medicine.

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.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.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 (1...