Webb v. West Virginia Bd. of Medicine

• Decision Date: 03 July 2002
• Docket Number: No. 30032.,30032.
• Citation: 212 W.Va. 149,569 S.E.2d 225
• Court: West Virginia Supreme Court
• Parties: Deleno H. WEBB, III, M.D., Petitioner Below, Appellee, v. WEST VIRGINIA BOARD OF MEDICINE, Respondent Below, Appellant.

569 S.E.2d 225

212 W.Va. 149

Deleno H. WEBB, III, M.D., Petitioner Below, Appellee, v. WEST VIRGINIA BOARD OF MEDICINE, Respondent Below, Appellant.

No. 30032.

Supreme Court of Appeals of West Virginia.

Submitted February 26, 2002.

Decided July 3, 2002.

Sean P. McGinley, Esq., Rudolph L. DiTrapano, Esq., DiTrapano, Barrett & DiPiero, Charleston, for Appellee.

Deborah Lewis Rodecker, Esq., Charleston, for Appellant.

PER CURIAM.

The West Virginia Board of Medicine (the "Board") appeals a December 27, 2000 order of the Circuit Court of Kanawha County, that vacated a July 21, 1999 order of the Board which revoked the medical license of Deleno H. Webb, M.D. ("Dr.Webb"), stayed such sanction, and placed Dr. Webb on probationary status for a period of five years. This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order is affirmed.

I. BACKGROUND

On November 5, 1993, the Board filed a complaint against Dr. Webb, a Huntington psychiatrist, alleging that the he had violated several medical ethics rules by engaging in a sexual relationship with a patient, Ms. D.¹ Specifically, the complaint alleged that Dr. Webb gave psychiatric care and treatment to Ms. D. during the period of September 1975 through March 1977, and that he was involved in a sexual relationship with Ms. D. during such time.² The complaint also averred that while Ms. D. was transferred to the care and treatment of another psychiatrist in March 1977, Dr. Webb continued to give care and treatment to Ms. D. after such time while still maintaining an ongoing sexual relationship with the patient.³ Dr. Webb answered the complaint by a letter dated October 8, 1992, where he denied ever having had a sexual relationship with Ms. D. during the time when she was his patient.

Dr. Webb later sought a writ of prohibition in the Circuit Court of Kanawha County, asserting that the instant proceeding was precluded under the equitable doctrine of laches. This issue percolated in the circuit court and in proceedings before the Board until it was finally resolved by this Court in State ex rel. Webb v. West Virginia Bd. of Medicine, 203 W.Va. 234, 506 S.E.2d 830 (1998), where we upheld the Board's conclusion that laches did not bar action on the present complaint.

After resolution of the laches issue, hearings were conducted on December 17-18, 1998 and March 24, 1999 on the merits of the Board's complaint against Dr. Webb. There are a number of background facts that have never been disputed in this case: Dr. Webb first began treating Ms. D. in September 1975, when the latter was seventeen years old. Ms. D. had been admitted to St. Mary's Hospital in Huntington and diagnosed as suffering from major depressive disorder. After her release from St. Mary's, Ms. D. made one visit to Dr. Webb's office on October 30, 1975, before moving to Columbus, Ohio, to live with her older brother. Dr. Webb's treatment of Ms. D. did not resume until an office visit on July 29, 1976. Ms. D.'s condition later worsened, which resulted in two hospitalizations in October and November 1976. Ms. D.'s care was later transferred to another psychiatrist, Robert W. Hibbard, M.D., with whom Dr. Webb shared an office, although there is conflicting evidence regarding whether such change took place following Ms. D.'s discharge from St. Mary's on November 12, 1976, or whether it took effect on March 24, 1977, when Dr. Webb sent a letter to the West Virginia Division of Vocational Rehabilitation requesting that authorization for reimbursement regarding Ms. D.'s treatment be transferred to Dr. Hibbard. It is undisputed that Dr. Webb's professional contact with Ms. D. after March 24, 1977 was limited to approving the refill of medications previously prescribed by Dr. Hibbard, and seeing her while acting as the "on-call" physician covering for Dr. Hibbard when Ms. D. was hospitalized on two occasions in June 1977 and February 1978.

Ms. D. declined to participate in the hearing on the merits, and likewise refused to waive confidentiality restrictions so as to preclude two of the Board's witnesses, Michele Young and John Adams, M.D., from testify at the hearings. In lieu of live testimony from either Ms. Young or Dr. Adams, the Board sought to introduce deposition testimony that had been given by these witnesses in a civil action that had previously been brought by Ms. D. against Dr. Webb alleging medical malpractice. This evidence was admitted by the Board's hearing examiner over the objection of Dr. Webb, who continues to maintain that it was inadmissible hearsay.

Ms. Young, a clinical social worker employed in Dr. Webb's office who began counseling Ms. D. in November 1976, testified in her May 5, 1995 deposition that Ms. D. had told her during a counseling session that she was going to accompany Dr. Webb on a trip to Williamson, where the two would be "staying in a motel." Ms. Young stated that this information caused her to become concerned about a possible sexual relationship between Ms. D. and Dr. Webb. Ms. Young subsequently discussed the matter with Dr. Hibbard, but was told to take the matter directly to Dr. Webb. When Ms. Young later confronted Dr. Webb regarding her concerns, Dr. Webb responded by stating something to the effect that, "I was tempted, but I thought better of it." Ms. Young testified that when Ms. D. later made further reference to a trip to Williamson, she undertook in late March 1977 to have Ms. D.'s care transferred to Dr. Hibbard. She also stated that she had become "convinced" at some point prior to March 1977 that there was a sexual relationship between Dr. Webb and his patient. Ms. Young indicated that at some later, unspecified point in time, she was told by Ms. D. that she was, in fact, involved in an ongoing sexual relationship with Dr. Webb.

Dr. Adams testified in his deposition conducted on April 28 and June 2, 1995, that he began treating Ms. D. in 1992, and that in his opinion Ms. D.'s existing mental illness was aggravated by her relationship with Dr. Webb.

The Board's expert witness on psychiatric medicine, Seymour Halleck, M.D., testified at the merits hearing that although no standards were in place making it unethical for a psychiatrist to have a sexual relationship with a former patient until the late 1980s, there were nevertheless circumstances where such conduct on the part of the physician could be deemed malpractice. Doctor Halleck concluded that Dr. Webb "knew or should have known that he was dealing with a highly vulnerable sick person. And to ... have sex with her whether he viewed himself as her physician or not is below the standard of care in the profession of psychiatry." He also gave his opinion that Dr. Webb had used his influence within the physician-patient relationship to obtain sex, stating that such influence involved "the power he had as a physician, the feelings she developed toward him, the trust she had in him."

Doctor Halleck further opined, based upon a review of pertinent medical records as well as deposition testimony given in the civil suit brought by Ms. D. against Dr. Webb, that Ms. D. was a patient of Dr. Webb's from September 1976, the time when Dr. Webb first saw Ms. D. at St. Mary's Hospital, until November 1982, which marked the last time that Dr. Webb authorized a refill of Ms. D.'s medications. Doctor Halleck indicated that this determination was dictated by the fact that during this period Dr. Webb had seen Ms. D. while on call and made notes in her chart on such occasions, and because Dr. Webb had authorized the refill of Ms. D.'s prescriptions on various occasions. Doctor Halleck explained that, it is very clear that if you write prescriptions for a patient, you are the patient's doctor. It is very clear if you put notes in a patient's chart, that you are the patients doctor. It is very clear that when you are on call and responsible for other patients who have other doctors, that at the time you are on call, you are the doctor of every patient ... you take care of.

Doctor Halleck concluded that Dr. Webb's conduct in this matter was unethical, dishonorable, unprofessional, and likely to harm a member of the public.

In his defense, Dr. Webb testified at the merits hearing that he transferred the care of Ms. D. to Dr. Hibbard in November 1976, because Michele Young, who was actually an employee of Dr. Hibbard's, had a good rapport with the patient whereas he did not. Doctor Webb explained that his letter of March 24, 1977, where he requested that Vocational Rehabilitation Services transfer authorization for Ms. D.'s care to Dr. Hibbard, was merely a formality and did not indicate the actual date when Dr. Hibbard took charge of Ms. D.'s treatment. Doctor Webb further testified that he and Ms. D. began their sexual relationship on or about July 17, 1977, a date which he was certain about because he broke his hip the following day. According to Dr. Webb, his sexual contact with Ms. D. was "intermittent," and ceased in 1979 or 1980.⁴

With respect to his conduct in renewing various prescriptions for Ms. D. after their sexual relationship commenced, Dr. Webb indicated that he never saw Ms. D. on these occasions, and that the normal procedure in his office was that if one of Dr. Hibbard's patients required a prescription refill while he was unavailable, the office staff would request authorization from Dr. Webb. On these occasions, according to Dr. Webb, he was often not apprised of the names of the patients for whom he was renewing the prescriptions. Concerning his having seen Ms. D. while on call during two hospitalizations, Dr. Webb explained that on these occasions he was faced with the dilemma of "either hav[ing] no contact with her whatsoever in the hospital or go ahead and honor my agreement with the covering physician and make sure she was medically covered those days I went there." He further stated that "I...