Healy v. West Virginia Bd. of Medicine

• Decision Date: 10 July 1998
• Docket Number: No. 24750.,24750.
• Citation: 506 S.E.2d 89,203 W.Va. 52
• Parties: Paul T. HEALY, M.D., Appellant, v. WEST VIRGINIA BOARD OF MEDICINE, Appellee.
• Court: West Virginia Supreme Court

506 S.E.2d 89

203 W.Va. 52

Paul T. HEALY, M.D., Appellant, v. WEST VIRGINIA BOARD OF MEDICINE, Appellee.

No. 24750.

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1998.

Decided July 10, 1998.

James E. Smith, II, Keyser, for Appellant.

Deborah Lewis Rodecker, Charleston, Attorney Appellee.

PER CURIAM:¹

In a proceeding instituted by the West Virginia Board of Medicine (hereinafter "Board") against Paul T. Healy, M.D., the Board concluded that the medical license of Dr. Healy should be suspended for five years, such suspension being stayed upon certain conditions. The Circuit Court of Mineral County affirmed that decision, and Dr. Healy appeals, contending that the Board and lower court erred in finding that he falsified medical records. We affirm the decision of the Board and the Circuit Court of Mineral County.

I.

Dr. Healy began his practice of medicine and surgery in 1954. Mrs. Margaret Stanislawczyk became a patient of Dr. Healy in 1984 and was treated by Dr. Healy for a variety of ailments, including hypertension and frequent respiratory infections. On January 4, 1990, Mrs Stanislawczyk informed Dr. Healy that she had experienced tenderness of the right breast. Dr. Healy ordered a mammogram of both breasts, and the January 8, 1990, mammogram was interpreted by Dr. Buenventura Orbeta, a radiologist. On January 8, 1990, Dr. Orbeta contacted Dr. Healy and advised Dr. Healy that he was unable to complete the examination due to breast tenderness. Dr. Orbeta further informed Dr. Healy that he had advised Mrs. Stanislawczyk to return in three to six months for another mammogram based upon a density in her breast. Dr. Healy contends that he telephoned the patient on January 8, 1990, and confirmed Dr. Orbeta's recommendation to return in three to six months for a repeat mammogram.

Mrs. Stanislawczyk failed to return for an additional mammogram and was diagnosed with breast cancer on March 1, 1993. She subsequently underwent a mastectomy of the right breast. In April 1993, Mrs. Stanislawczyk apprised Dr. Healy of her diagnosis and questioned him regarding his failure to inform her of the results of the January 8, 1990, mammogram. Dr. Healy responded to Mrs. Stanislawczyk's question by contending that he and Dr. Orbeta had both conveyed the recommendation to her that she should repeat the 1990 mammogram within three to six months.

In October 1993, Dr. Healy received correspondence from Mrs. Stanislawczyk's attorney demanding $125,000 for the act of failing to timely diagnose the cancer.² On February 25, 1995, Mrs. Stanislawczyk filed a complaint with the Board, alleging that Dr. Healy had ignored a 1990 mammogram report of a possible tumor in her right breast and that he had failed to follow up to ensure that she obtained another mammogram.³ Mrs. Stanislawczyk also contended that as a result of Dr. Healy's action, the tumor metastasized, causing her to undergo a mastectomy of the right breast.

In a March 23, 1995, response to the complaint, Dr. Healy provided "office notes" and patient medical records of his dealings with the patient, reflecting that he had contacted Mrs. Stanislawczyk by telephone on January 8, 1990. While these entries were dated 1990, they were written on stationery dated 1991 and 1993, and all the notations appeared to be written with the same pen.

On August 1, 1995, the Board issued a subpoena duces tecum to Dr. Healy for all original medical records relating to the care Mrs. Stanislawczyk. Dr. Healy once again provided the same records he had attached to the March 23, 1995, response to the complaint. On November 13, 1995, Dr. Healy appeared before the Board's Complaint Committee. When questioned with regard to the suspicious nature of the notes, Dr. Healy first reported that he used the same pen over an eleven-year period in recording the patient's information. He later admitted that he had "reassembled" the notes from the original records based upon his concern that the Board would be unable to read the original notes which were written in an unusual form of shorthand.⁴

Although the "reassembled" records indicated that he had contacted the patient after the January 1990 mammogram to advise her that a repeat mammogram was necessary, Mrs. Stanislawczyk testified that when she and her son visited Dr. Healy's office in April 1993 and asked him why he had not called her or made an appointment for a repeat mammogram, Dr. Healy had informed her that he thought the girls at the hospital would take care of that.

On September 20, 1996, the Board filed a complaint⁵ against Dr. Healy, alleging that he falsified the patient's medical records to make it appear as though he had contacted her following the 1990 mammogram and that he had failed to follow up in any way on the radiographic report of the mammogram. The Board alleged that such conduct constituted a deceptive, untrue or fraudulent representation in the practice of medicine.

On January 6, 1997, the administrative law judge recommended revocation of Dr. Healy's license based upon clear and convincing evidence that Dr. Healy made a deceptive, untruthful and fraudulent representation in the practice of medicine when he provided records which purported to be his original records but were in fact records which he knew were not original records, thus violating West Virginia Code § 30-3-14(c)(9) and 11 CSR 1A 12.1(s).

On January 17, 1997, the Board adopted the findings of fact and conclusions of law of the administrative law judge, but found that the appropriate discipline would constitute a five-year suspension of Dr. Healy's license rather than the revocation recommended by the administrative law judge. The Board stayed the five-year suspension, conditioned upon the payment of a $10,000 civil fine; the payment of costs of $7667 witness fees; and upon Dr. Healy's commitment to maintain complete and current records, including telephone conversations.⁶ The Board determined that random audits of Dr. Healy's patient records would be conducted, at least once in each calendar quarter.

If any audit report reflects the Respondent's failure to keep complete and current records pursuant to this Order, and if the Board thereupon determines that the Respondent failed to keep complete and current records pursuant to this Order, the STAY shall be dissolved and terminated, and the SUSPENSION shall be in effect immediately upon service upon the Respondent of the Board's determination and written notice thereof.

On March 24, 1997, the Circuit Court of Mineral County affirmed the Board's order of January 17, 1997. Dr. Healy thereafter appealed to this Court contending that the Board failed to prove by clear and convincing evidence that he falsified the records. Dr. Healy admits that he provided transcribed notes rather than the originals, but he explains that he reassembled the originals only to prevent confusion by the Board in attempting to interpret the originals written in his unusual form of shorthand. Dr. Healy emphasizes the testimony of his office nurse, Joyce Norvell, L.P.N., indicating that she was familiar with Mrs. Stanislawczyk and personally overheard Dr. Healy notify Mrs. Stanislawczyk regarding the mammogram and the necessity for a repeat mammogram.⁷

Dr. Healy also contends that the Board erred in concluding that he made a deceptive, untruthful, and fraudulent representation in the practice of...