Modi v. West Virginia Bd. of Medicine

• Decision Date: 17 November 1995
• Docket Number: No. 22792,22792
• Court: West Virginia Supreme Court
• Parties: Shakuntala MODI, M.D., Petitioner Below, Appellee, v. WEST VIRGINIA BOARD OF MEDICINE, Respondent Below, Appellant.

Page 230

465 S.E.2d 230

195 W.Va. 230

Shakuntala MODI, M.D., Petitioner Below, Appellee, v. WEST VIRGINIA BOARD OF MEDICINE, Respondent Below, Appellant.

No. 22792.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 12, 1995.

Decided Nov. 17, 1995.

[195 W.Va. 232] 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 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).

                [195 W.Va. 233] 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)
                

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.

Jolyon W. McCamic, McCamic & McCamic, Wheeling, for Appellee.

Deborah Lewis Rodecker, Charleston, for Appellant.

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, 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.

[195 W.Va. 234] 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 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.

[195 W.Va. 235] an insurance company $480.00 for psychotherapy when, in fact, she had engaged in depossession therapy.

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) 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...