State ex rel. Webb v. W. VA. BD. OF MEDICINE

• Decision Date: 16 July 1998
• Docket Number: No. 24641., No. 24640
• Citation: 203 W.Va. 234,506 S.E.2d 830
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Deleno H. WEBB, M.D., Petitioner below, Appellee, v. WEST VIRGINIA BOARD OF MEDICINE, Respondent below, Appellant (Two Cases).

506 S.E.2d 830

203 W.Va. 234

STATE ex rel. Deleno H. WEBB, M.D., Petitioner below, Appellee, v. WEST VIRGINIA BOARD OF MEDICINE, Respondent below, Appellant (Two Cases).

Nos. 24640, 24641.

Supreme Court of Appeals of West Virginia.

Submitted June 2, 1998.

Decided July 16, 1998.

Concurring and Dissenting Opinion of Justice Workman July 20, 1998.

Rudolph L. DiTrapano, Esq., Sean P. McGinley, Esq., DiTrapano & Jackson Charleston, West Virginia, Attorneys for Appellee.

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

STARCHER, Justice:

In the instant case we uphold in part and reverse in part a decision of the Circuit Court of Kanawha County. We determine that the West Virginia State Board of Medicine can go forward with one disciplinary proceeding against a psychiatrist charging him with having a sexual relationship with a patient; in another proceeding, charging the doctor with the same conduct with another patient, we determine that a complainant's delay in making a complaint bars further proceedings.

I. Facts and Background

The appellant, the West Virginia Board of Medicine ("the Board"), established pursuant to W.Va.Code, 30-3-1, et seq., filed charges against the appellee, Dr. Deleno H. Webb¹ ("Dr. Webb"), a Huntington, West Virginia psychiatrist, in two separate complaints—one filed in November 1993, the other in August 1994.

The first complaint alleged that Dr. Webb engaged in sexual intercourse with his patient, Ms. D.², beginning in 1975, when Ms. D. was 17, and continuing through 1985. The second complaint alleged that on one occasion in 1979, Dr. Webb engaged in sexual intercourse with a second patient, Ms. M.

Dr. Webb applied for a writ of prohibition against the Board in the Circuit Court of Kanawha County in both matters. On September 16, 1994, the circuit court ordered the Board to consider "what, if any, impact the doctrine of laches will have on the allegations" against Dr. Webb. The circuit court also ordered that "the Board shall assume that the doctrine of laches applies and make initial determinations in both cases as to what prejudice, if any, has occurred and whether these proceedings should be barred as a result." The circuit court's order further declared that any misconduct in which Dr. Webb engaged prior to the 1980 enactment of W.Va.Code, 30-3-1 et seq. should be governed by the disciplinary provisions of the law in place at the time of the alleged misconduct.

Accordingly, the Board excised its complaints and notices to meet the circuit court's directive. By order dated January 18, 1995, the Board scheduled a hearing before a Board-designated hearing examiner so the Board could "consider the evidence and make initial determinations as to what prejudice, if any, has occurred, and whether further proceedings should be barred as a result."

At this "laches" hearing, Webb presented one witness, an investigator, who testified as to difficulties in gaining access to witnesses and other information. The Board presented as witnesses its executive director, Ronald D. Walton; Nancy Hill, Ms. D.'s attorney; and John Adams, M.D., Ms. D.'s then-current treating psychiatrist. The Board also had testimony and evidence from a related civil proceeding against Dr. Webb filed by Ms. D.

After the filing of legal memoranda, the Board's hearing examiner, applying the doctrine of laches, recommended that the Board should be permitted to go forward in the D. matter, and that the Board should not be permitted to go forward in the M. matter.

In May 1995, the Board entered an order accepting the hearing examiner's recommendation as to the D. matter, and modifying the recommendation in the M. matter. The Board asserted in the order that it had carried out the circuit court's directive, even though the Board believed that the circuit court's direction to assume that the doctrine of laches applied constituted an error of law.

The Board next scheduled a hearing on the merits of the two complaints. Dr. Webb again applied to the Circuit Court of Kanawha County for a writ of prohibition against the Board's holding a hearing on the merits of the charges. With no ruling forthcoming from the circuit court, in August 1996, the Board applied to this Court for the issuance of a writ of mandamus requiring the circuit court to rule on Dr. Webb's request for a writ of prohibition. We issued the writ. In April 1997, the circuit court ruled that the Board was not permitted to hold a hearing on the merits of the complaints against Dr. Webb.

From this ruling by the Circuit Court of Kanawha County, the Board appeals.

II. Standard of Review

"The standard of appellate review of a circuit court's order granting relief through the extraordinary writ of prohibition is de novo." Syllabus Point 1, Martin v. West Virginia Div. of Labor Contractor Licensing Bd., 199 W.Va. 613, 486 S.E.2d 782 (W.Va. 1997).

III. Discussion

A. Is the Doctrine of Laches Applicable in Board of Medicine Proceedings?

This Court's customary brief formulation of the doctrine of laches was stated in Province v. Province, 196 W.Va. 473, 483, 473 S.E.2d 894, 904 (1996): "The elements of laches consist of (1) unreasonable delay and (2) prejudice."

We have also stated:

Laches is an equitable defense, and its application depends upon the particular facts of each case. There are some general principles, however, which a court should be mindful of when determining whether the doctrine of laches is applicable. For instance, "[m]ere delay will not bar relief in equity on the ground of laches. `Laches is a delay in the assertion of a known right which works to the disadvantage of another, or such delay as will warrant the presumption that the party has waived his right.'"

State ex rel. West Virginia Dept. of Health and Human Resources, Child Advocate Office, on Behalf of Jason Gavin S. by Diann E.S. v. Carl Lee H., 196 W.Va. 369, 374, 472 S.E.2d 815, 820 (1996) (citations omitted).

A substantial number of jurisdictions have held or assumed for decisional purposes that some form of the doctrine of laches may be applicable in disciplinary proceedings against physicians. Annotation, Applicability of statute of limitations or doctrine of laches to revoke or suspend license to practice medicine, 51 A.L.R.4th 1147.

The argument that there should be a place for the doctrine of laches in physician discipline cases rests on fundamental fairness. The privilege (W.Va.Code, 30-3-1 [1980]) to practice medicine is a valuable one. To have that privilege threatened in a proceeding where one is severely prejudiced by an unreasonable delay not of one's own making could be very unfair.

However, it is also important to recognize that physician discipline proceedings are not the sort of traditional, common-law adversarial civil proceedings in which doctrines like laches evolved, to balance the rights and interests of purely private parties. In a physician discipline proceeding, the interests of the state, the general public and the medical profession are the primary concern.

Thus, there may be circumstances in a physician discipline proceeding when even a substantial degree of prejudice to a physician that is caused by an unreasonable delay not of the physician's making might nevertheless be outweighed by the strong interests of the state, the public and the profession in fully addressing allegations of serious professional misconduct—so as to tip the equitable balance in favor of continuing with a proceeding.

For the foregoing reasons, we hold that the doctrine of laches may be applicable in proceedings by and before the West Virginia Board of Medicine pursuant to W.Va. Code, 30-3-1, et seq. However, in applying the doctrine of laches in such proceedings, the interests of the state, the public and the medical profession must be given substantial consideration, and the doctrine should be applied narrowly and conservatively and in such a fashion as to not unfairly impair the Board's duty and responsibility to supervise and regulate the medical profession for the protection of the profession and the public.³

To the extent that the holding in Syllabus Point 7 of State v. Sponaugle, 45 W.Va. 415, 32 S.E. 283 (W.Va.1898) (laches is not imputable to the state) suggests that as a state-sponsored entity, the Board is not subject to laches, the holding of that case is hereby modified.

B. The Application of the Doctrine of Laches in the Instant Case

As previously stated, the circuit court's first order instructed the Board to consider the application of the doctrine of laches to the proceedings involving Dr. Webb. While the circuit court's second order prohibiting further proceedings questioned whether the Board had applied the doctrine in good faith, the record shows that the Board and its hearing examiner both applied the doctrine—although the Board did so under protest.

Both the examiner and the Board concluded that laches should not bar proceeding on the D. matter. However, the examiner and the Board differed on the M. matter. The examiner recommended that laches should bar proceedings on the M. matter; the Board disagreed and ruled that laches should not be a bar.

The circuit court concluded that the Board had erred as a matter of law in its application of laches to both matters, and granted a writ of prohibition barring further proceedings on both. It is this determination by the circuit court that we review, de novo.

The hearing examiner's recommendation in the D. matter was based, inter alia, upon the examiner's findings, adopted by the Board, that (1) any delay had been proven to be at least in part Dr. Webb's responsibility and therefore was not unreasonable; and (2) that Dr. Webb had not proven that he had been prejudiced by any delay.

If upheld, these findings are dispositive on the laches issue in the D. matter. Our review of the record as a whole shows that there was substantial—indeed...