Hasan v. W. Va. Bd. of Med.

Decision Date08 November 2019
Docket NumberNo. 18-0715,18-0715
Citation835 S.E.2d 147
CourtWest Virginia Supreme Court
Parties Omar Khalid HASAN, M.D., Petitioner Below, Petitioner v. WEST VIRGINIA BOARD OF MEDICINE, Respondent Below, Respondent

835 S.E.2d 147

Omar Khalid HASAN, M.D., Petitioner Below, Petitioner
v.
WEST VIRGINIA BOARD OF MEDICINE, Respondent Below, Respondent

No. 18-0715

Supreme Court of Appeals of West Virginia.

Submitted: October 16, 2019
Filed: November 8, 2019


Stuart A. McMillan, Patrick C. Timony, Bowles Rice LLP, Charleston, West Virginia, Attorneys for the Petitioner

Greg S. Foster, Jamie S. Alley, Charleston, West Virginia, Attorneys for the Respondent

Jenkins, Justice:

Doctor Omar Hasan ("Dr. Hasan"), petitioner herein, appeals a final order entered in the Circuit Court of Kanawha County on July 13, 2018, that affirmed a decision by the respondent herein, the West Virginia Board of Medicine ("the Board"), that imposed professional discipline, including a one-year suspension of his medical license with the requirement that he petition for reinstatement. Before this Court, Dr. Hasan contends that the Board erred by failing to adopt recommended findings of fact by its hearing examiner, by improperly considering the content of text messages, and by misstating various facts in its final order. Based upon our thorough consideration of this appeal, we conclude that the Board has the authority to amend findings of fact recommended by its hearing examiner so long as it provides a reasoned, articulate decision that explains the rationale for its changes. Because we find the Board provided such rationale, did not err in considering the text messages, and did not commit reversible error by misstating certain evidence, we affirm.

I.

FACTUAL AND PROCEDURAL HISTORY

Dr. Hasan, a psychiatrist, has practiced psychiatry at Raleigh Psychiatric Services, Inc., in Beckley, West Virginia, since 2007. In November 2011, Dr. Hasan began providing psychopharmacological1 care to a patient we will identify as M.B.2 In September 2014, M.B. filed a complaint with the Board3 alleging that Dr. Hasan engaged in an improper sexual relationship with her; that the relationship included, among other things, texting, phone calls, gifts, and sexual encounters

835 S.E.2d 150

on numerous occasions at various locations; and that the relationship led her to attempt suicide when it was ended by Dr. Hasan. The Board investigated M.B.’s allegations.4 At the conclusion of its investigation, the Board found probable cause to institute disciplinary proceedings against Dr. Hasan for professional misconduct.5

The Board ultimately issued and served upon Dr. Hasan its Amended Complaint and Notice of Hearing. The Board’s Amended Complaint set out six separate counts against Dr. Hasan: Count I charged him with exercising influence within a patient-physician relationship for the purpose of engaging a patient in sexual activity in violation of W. Va. Code § 30-3-14(c)(8) (LexisNexis 2018)6 and W. Va. C.S.R. § 11-1A-12.1.e. (2007) ;7 Count II charged him with failing to immediately terminate the physician-patient relationship when the interactions and/or communications became sexual in nature in violation of W. Va. Code § 30-3-14(c)(17),8 and W. Va. C.S.R. §§ 11-1A-12.1.e.,9 11-1A-12.1.j.,10 and 11-1A-12.2.d.;11 Count III charged him with entering

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into a sexual relationship with M.B. in violation of W. Va. Code § 30-3-14(c)(17),12 and W. Va. C.S.R. §§ 11-1A-12.1.e.,13 11-1A-12.1.j.,14 and 11-1A-12.2.d.;15 Count IV charged him with failing to appropriately respond to M.B.’s reports of suicidal ideation in violation of W. Va. Code § 30-3-14(c)(17)16 and W. Va. C.S.R. § 11-1A-12.1.x.;17 Count V charged him with failing to consider the clinical significance of his out-of-office communications with M.B. in violation of W. Va. Code § 30-3-14(c)(17)18 and W. Va. C.S.R. § 11-1A-12.1.x.;19 and Count VI charged him with failing to properly document his out-of-office communications with M.B. in violation of W. Va. Code § 30-3-14(c)(11),20 and W. Va. C.S.R. §§ 11-1A-12.1.u.,21 and/or 11-1A-12.1.jj.22

Dr. Hasan submitted his Answer to the Amended Complaint in which he admitted to engaging in out-of-office communications with M.B., but he claimed the communications were for treatment purposes. The Board appointed a hearing examiner, and a public hearing was held from April 25, 2017, through April 28, 2017. The evidence presented at the hearing included significant details provided by M.B. regarding dates and locations where M.B. and Dr. Hasan had met and either engaged in sexual activities or discussed their ongoing affair. In addition, according to Dr. Hasan’s own AT&T phone

835 S.E.2d 152

records, he and M.B. exchanged more than four thousand text messages between January 2013 and January 2014,23 and spent more than sixteen hours engaged in phone calls. This evidence was particularly striking given that Dr. Hasan had treated M.B. with psychopharmacological care and treatment, and had not treated her with psychotherapy; thus there appeared to be no medical reason for Dr. Hasan to engage in such numerous and lengthy communications with M.B. outside of the office setting. Additionally, there were no out-of-office communications with M.B. documented by Dr. Hasan in M.B.’s medical record. Although Dr. Hasan has disputed the content of the texts, the fact that this volume of texts occurred is not disputed.24

Following the hearing, the hearing examiner issued his recommended findings of fact and conclusions of law on June 13, 2017, in which he found that the Board had failed to prove by clear and convincing evidence that Dr. Hasan had committed the violations alleged in Counts I, II, III, IV, and V of its amended complaint. The hearing examiner further found that the Board did prove by clear and convincing evidence that Dr. Hasan had committed the violation alleged in Count VI, by failing to properly document his out-of-office communications with M.B. With respect to sanctions, the hearing examiner recommended that Dr. Hasan (1) be assessed a fine of $3,000.00; (2) be ordered to pay the costs of the proceedings and of the investigation; (3) be publically reprimanded; and (4) have his license placed on probation for a period of three years during which he could practice medicine and surgery in the State of West Virginia subject to the following limitations: (a) that he enroll in and successfully complete, within ninety days and at his own expense, a course designated and approved by the Board providing no fewer than fifteen continuing medical education hours on the subject of medical records and documentation; (b) a chart review of Dr. Hasan’s medical records be conducted; and (c) Dr. Hasan appear before the Board annually to discuss his practice and matters relative to these terms and conditions.

After considering the record and the hearing examiner’s recommended findings of fact, conclusions of law, and proposed discipline, the Board issued its final order on June 21, 2017. The Board modified the hearing examiner’s recommendations and found that Dr. Hasan had violated Counts I, III, V, and VI of the Amended Complaint. The Board concluded that violations of Counts II and IV of the Amended Complaint had not been proven. Accordingly, the Board imposed various sanctions, which included: (1) suspending Dr. Hasan’s West Virginia medical license for a period of one year, to remain in effect until lifted or otherwise modified by the Board; (2) a public reprimand; (3) completion by Dr. Hasan, at his own expense, of the Multidisciplinary Assessment & Evaluation of Professionals program at the Professional Renewal Center in Lawrence, Kansas; (4) a requirement that, before the Board will consider lifting or modifying the sanctions imposed, Dr. Hasan must make a written request that his suspension be modified and/or lifted and must provide proof that he complied with certain conditions related to his completion of the Multidisciplinary Assessment & Evaluation of Professionals program; (5) appearing

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before the Board or a designated committee thereof on an annual basis, or at any other time requested, to discuss his practice and matters relative to the terms and conditions of his discipline; and (6) payment by Dr. Hasan of the costs and expenses of the proceedings.

Dr. Hasan appealed the Board’s decision to the Circuit Court of Kanawha County. The circuit court affirmed the decision, and this appeal followed.

II.

STANDARD OF REVIEW

This case is presently before this Court on appeal from the circuit court’s order affirming the administrative decision of the Board. Appeal to this Court from an adverse decision of the circuit court in an administrative proceeding is authorized by W. Va. Code § 29A-6-1 (LexisNexis 2018), which provides that

[a]ny 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.

In exercising our authority to consider an administrative appeal, "[t]his Court reviews decisions of the circuit...

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