West Va. Med. Imaging v. Harrison

• Decision Date: 26 May 2011
• Docket Number: No. 101150.,101150.
• Citation: 711 S.E.2d 260,227 W.Va. 438
• Parties: WEST VIRGINIA MEDICAL IMAGING AND RADIATION THERAPY TECHNOLOGY BOARD OF EXAMINERS, Petitioner Below, Petitionerv.Kenneth A. HARRISON, Respondent Below, Respondent.
• Court: West Virginia Supreme Court

227 W.Va. 438

711 S.E.2d 260

WEST VIRGINIA MEDICAL IMAGING AND RADIATION THERAPY TECHNOLOGY BOARD OF EXAMINERS, Petitioner Below, Petitioner

v.Kenneth A. HARRISON, Respondent Below, Respondent.

No. 101150.

Supreme Court of Appeals of West Virginia.

Submitted May 11, 2011.Decided May 26, 2011.

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).” Syl. Pt. 1, Modi v. West Virginia Bd. of Medicine, 195 W.Va. 230, 465 S.E.2d 230 (1995).

2. “A reviewing court must evaluate the record of an administrative agency's proceeding to determine whether there is evidence on the record as a whole to support the agency's decision. The evaluation is conducted pursuant to the administrative body's findings of fact, regardless of whether the court would have reached a different conclusion on the same set of facts.” Syl. Pt. 1, Walker v. West Virginia Ethics Com'n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

3. “ ‘ “In cases where the circuit court has [reversed] the result before the administrative agency, this Court reviews the final order of the circuit court and the ultimate disposition by it of an administrative law case under an abuse of discretion standard and reviews questions of law de novo.” Syl. pt. 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).’ Syllabus point 1, Hoover v. West Virginia Board of Medicine, 216 W.Va. 23, 602 S.E.2d 466 (2004).” Syl. Pt. 1, Crouch v. West Virginia Div. of Motor Vehicles, 219 W.Va. 70, 631 S.E.2d 628 (2006).

4. “ ‘In the interpretation of statutory provisions the familiar maxim expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another, applies.’ Syllabus Point 3, Manchin v. Dunfee, 174 W.Va. 532, 327 S.E.2d 710 (1984).” Syl. Pt. 6, Phillips v. Larry's Drive–In Pharmacy, Inc., 220 W.Va. 484, 647 S.E.2d 920 (2007).

Darrell V. McGraw, Nicole A. Cofer, Attorney General's Office, Charleston, WV, for Appellant.Jacques R. Williams, Hamstead, Williams and Shook, Morgantown, WV, for Appellee.

PER CURIAM:

The West Virginia Medical Imaging and Radiation Therapy Technology Board of Examiners (“Board” or “Appellant”) appeals the March 26, 2010, order of the Circuit Court of Monongalia County, which reversed the Board's Final Administrative Order suspending for two years Appellee Kenneth A. Harrison's license to practice medical imaging and radiation therapy technology in the State of West Virginia. The Board had found that Appellee practiced outside the scope of his medical imaging and radiation therapy technology license when he administered intravenous medication to a patient without physician involvement, in violation of W.Va.Code § 30–23–1 et seq.¹ and 18 C.S.R. §§ 5–5.1 and 5.1.17.

Upon careful consideration of the arguments of the parties and the applicable legal authority, and for the reasons set forth below, we reverse the order of the circuit court.

I. Factual and Procedural Background

At all times relevant, Appellee was a radiologic technologist ² licensed by the Board ³ and was employed in that capacity by West Virginia University Hospitals (“WVUH”). In a letter dated July 2, 2008, from Darlene S. Headley, Director, WVUH Department of Radiology, the Board was advised that Appellee's employment at WVUH had been terminated “due to unfavorable conduct for working outside of the scope of practice for a radiologic technologist at WVUH.” ⁴ The letter further advised the Board that

[u]pon investigation of a patient care situation, [Appellee] admitted to administering Benadryl intravenously to a patient without physician involvement. The lack of a physician order and the lack of involvement of a physician, nurse or pharmacist in the dose calculation and administration of a medication are outside of the scope of practice for a radiologic technologist.

Thereafter, the Board notified Appellee that it was conducting an investigation into the matter and advised him of his right to respond, in writing, to the complaint and allegations that he was terminated by WVUH as set forth above. See generally W.Va.Code §§ 30–23–25 and 26 (2007).

On or about August 5, 2008, Appellee filed a written response with the Board in which he admitted administering Benadryl intravenously to a patient who had an allergic reaction to the contrast media.⁵ It is undisputed that, prior to injecting the patient with contrast, neither Appellee nor his co-worker, radiologic technologist Ronna Shaneyfelt, were advised by the appropriate hospital staff that the patient had a contrast allergy. According to Appellee's written response to the Board's allegations, the patient had “an anaphylactic reaction” to the contrast. Appellee explained that the patient was “displaying hives and started to hiccup, which progressed rapidly into respiratory distress.” Appellee's response further stated that the radiology resident on call failed to respond to his co-worker's page in a timely manner. According to Appellee, “[t]here was no formal written policy to cover such an event,” and he “had to administer Benadryl and start [the patient] on oxygen due to his deteriorating respiratory status.” Appellee believed he had done nothing wrong

because it is in my job description to handle medications on a daily basis.... We are required to have IV therapy classes and draw up medications all the time. As to the accusation that I did not have the guidance of a physician to determine the dose of Benadryl, she did not make herself available and technologists in this facility draw up medications all the time without the presence of the physician when making trays for special procedures, biopsies, and abscess drainages.

As to me not going to the [emergency department] for help, this is not what the procedure is. We are told to call the radiologist.

Pursuant to a Notice of Hearing and Statement of Charges dated December 11, 2008, an administrative hearing was conducted on January 29, 2009, and April 2, 2009, before Hearing Examiner Jack C. McClung. During the course of the hearing, Ms. Shaneyfelt testified that after the patient had been injected with contrast and scanned, she read in his chart that he was allergic to contrast. According to Ms. Shaneyfelt, she went from the control room to the scanner area to ask Appellee if he was aware of the patient's allergy. Appellee did not answer but instead left the room.⁶ Ms. Shaneyfelt attended to the patient and noticed that, at most, he had two or three hives on his neck. Ms. Shaneyfelt testified that “the patient did not seem to be in any distress,” and that she did not “see any respiratory issues arising from it or anything like that.” When she asked the patient if he was okay, he nodded affirmatively. Ms. Shaneyfelt immediately paged Dr. Mithra Kimyai–Asadi, the radiology resident on call. Meanwhile, at the same time Appellee returned to the patient, Dr. Kimyai–Asadi answered Ms. Shaneyfelt's page and advised her that she would be right there. A few minutes later, Dr. Kimyai–Asadi arrived ⁷ and she and Ms. Shaneyfelt approached the area where the Appellee was attending to the patient and listening to his lungs with a stethoscope. It was at that time Ms. Shaneyfelt heard Appellee say that he had administered 50 mg of Benadryl intravenously to the patient.⁸

Dr. Kimyai–Asadi testified that when she answered Ms. Shaneyfelt's page regarding the patient's allergic reaction, she did not advise Ms. Shaneyfelt that someone should administer Benadryl.⁹ Although Dr. Kimyai–Asadi testified that, ultimately, administering 50 mg of Benadryl was appropriate in this case, whether to administer the medication was her decision to make:

Q. Now you have said and I think you have concluded that everyone agrees that [administering 50 mg of Benadryl] was the right thing to do ultimately.

A. Uh-huh (yes).

Q. In your opinion, whose call should that have been to make?

A. Mine

Q. Would you see a reason for a [radiologic technologist] to make that call for you?

A. Maybe in extreme circumstances, I mean, but then it wouldn't be Benadryl. If it was extreme and the guy was coding, it wouldn't be Benadryl. But probably not then. I mean, something like hives can wait. And if it was something like respiratory distress, then we would probably call a code and not give Benadryl.

For his part, Appellee testified that although Ms. Shaneyfelt paged Dr. Kimyai–Asadi after the patient began to break out into hives, Ms. Shaneyfelt led him to believe that no physician was coming to help them deal with the situation that had just developed. Meanwhile, Appellee observed the patient begin to hiccup and to have “some labored breathing[,]” at which time Appellee told Ms. Shaneyfelt he was going to get some Benadryl.¹⁰ Appellee testified that he administered intravenous Benadryl to the patient “because he kept deteriorating.” Shortly after Appellee administered the...