No. 22792: Shakuntala Modi, M.D. v. West Virginia Board of Medicine
Workman, J., concurring:
Justice Albright has written what is in many respects an excellent opinion. Perhaps
the most important contribution the opinion makes to the law is its clear enunciation that
when the Board of Medicine departs from its hearing examiner's findings of fact and
conclusions of law, it must craft an order that gives a reasoned, articulate statement of its
reasons.See footnote 1
It is inarguable that the manner in which the Board's order was fashioned made it almost impossible to discern their reasoning. As a result, I am unable to conclude from that
order, as did the majority, that the Board was arbitrary and capricious on the merits; but I
agree with the majority that the matter should be remanded so the Board might have an
opportunity to craft a reasoned, articulate order for us to review.
However, several points of clarification need to be made.
First, it should be emphasized that the majority opinion in no way ratified
depossession therapy as a valid treatment recognized by reasonable, prudent physicians in
the same specialty as being an accepted treatment.
Second, the majority concludes that the Board of Medicine "erroneously refused to
consider, for whatever its probative value, the otherwise admissible testimony of experts
supportive of Dr. Modi's assertion that depossession therapy is a recognized form of
treatment and is not experimental." (Footnote omitted). In arriving at this conclusion, the
majority correctly states that we have recently declared that Rule 702 of the West Virginia
Rules of Evidence is the paramount authority governing the issue of the admissibility of
expert testimony. See Mayhorn v. Logan Medical Found., 193 W. Va. 42, 454 S.E.2d 87
(1994). However, the Board's order is silent on whether they reversed the hearing examiner
on the issue of the admissibility of the questionable experts, or whether they simply chose
not to give any credence to their "expert" opinions. On remand, this should be clarified. The
Board should at least have an opportunity to make a clear conclusion on this issue before this Court rules as a matter of law (as the majority has) that the testimony in question was
admissible under Rule 702.
Third, the majority finds the reasoning of the Board in determining the treatment in
question to be experimental "flawed by the failure of the Board to give any consideration to
the evidence adduced from Dr. Modi's experts and the failure of the Board to make
appropriate findings of fact and conclusions of law[.]" Here, however, the Board did not
reverse the hearing examiner. The hearing examiner did admit and consider the testimony
of Dr. Modi's experts, yet concluded that the treatment at issue constituted experimental
therapy. The Board agreed.
Thus, it is difficult to see why the majority reversed on this segment of the Board's
order, and even more difficult to understand why the majority directs that the entire issue of
whether the treatment is experimental be re-opened and re-determined. Rather the majority
should have been guided by the following well-established principle which we have
consistently used in the context of other administrative appeals:
'[A] reviewing court must evaluate the record of the 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 facts. (Citation omitted.)'
CDS, Inc. v. Camper, 190 W. Va. 390, 392, 438 S.E.2d 570, 572 (quoting Frank's Shoe Store
v. West Virginia Human Rights Comm'n, 179 W. Va. 53, 56, 365 S.E.2d 251, 254 (1986))
(alteration not in original); accord Syl. Pt. 1, Morris Memorial Convalescent Nursing Home,
Inc. v. West Virginia Human Rights Comm'n, 189 W. Va. 314, 431 S.E.2d 353 (1993)
(quoting Syl. Pt. 1, West Virginia Human Rights Comm'n v. United Transp. Union, Local
No. 655, 167 W. Va. 282, 280 S.E.2d 653 (1981)) ("'West Virginia Human Rights
Commission's findings of fact should be sustained by reviewing courts if they are supported
by substantial evidence or are unchallenged by the parties.'").
Applying the above-mentioned concept to the present case, it becomes apparent that
the hearing examiner listened to witnesses' testimony on both sides of the issue concerning
whether depossession therapy is experimental in nature before evaluating that evidence and
finding that the treatment was experimental. Moreover, the Board had the opportunity to
review the substantial evidence presented to the hearing examiner in upholding the hearing
examiner's finding. Consequently, said findings should be sustained by this Court, since the
findings are supported by substantial evidence. By directing the Board to re-examine this
issue, the majority fails to uphold the precise principle it has established for reviewing courts
to utilize in cases where the findings are unquestionably supported by substantial evidence.
See id. This clearly does not constitute the kind of deference we previously said should be
shown under the law to the expertise of both the hearing examiner and the Board below. See Syl. Pt. 3, Citizens Bank of Weirton v. West Virginia Bd. of Banking and Fin. Insts., 160 W.
Va. 220, 233 S.E.2d 719 (1977).
Fourth, the majority itself expresses lack of understanding as to why the hearing examiner and the circuit court concluded that no written consent was necessary, in light of W. Va. Code 30-3-14(c)(14), which expressly requires "full, informed and written consent." Id. (emphasis added). Yet the majority goes on to criticize the Board for offering no explanation for its action "by which we might be enlightened." Here it seems rather obvious that the Board looked at the statute and followed it.
Fifth, I must respond to the gratuitous "guidance" offered by the majority with respect
to the proper contents and form of a full, informed and written consent. The majority
acknowledges that resolution of the issue of the content of such a consent involves complex
issues of patient care and treatment, yet suggests that the Board might better deal with this
matter by the issuance of a regulation rather than in a contested administrative proceeding.
The majority's own reasoning seems, however, to bode against such an approach. Given the
rapid advances in medicine in recent years, the complexity of individual medical questions,
and the obvious tenor of the majority (with which I concur) that medicine must be at least
willing to consider alternative, even experimental, therapeutic approaches in determining
what is and is not acceptable treatment, the creation of a regulation that would effectively
resolve the issue of what constitutes a full informed consent in every context would be an
almost impossible task.
Lastly, I address the majority's conclusion that the Board arbitrarily imposed the
requirement that Dr. Modi submit to any insurance carrier for a patient undergoing
depossession therapy a copy of the previously approved informed consent form signed by
the subject patient. While I agree with the majority's conclusion, I want to clarify that, on
remand, if it once again is determined that Dr. Modi's treatment is experimental, and not one
recognized by reasonable, responsible physicians in the same specialty, then the Board might
be well within its authority to determine that billing an insurance company for psychotherapy
could constitute a violation West Virginia Code § 30-3-14(c)(5), for which Dr. Modi could
be disciplined. Specifically, West Virginia Code § 30-3-14(c)(5) provides, in pertinent part,
that "[t]he board . . . may discipline a physician . . . licensed or otherwise lawfully
practicing in this state who, after a hearing, has been adjudged by the board as unqualified
due to any of the following reasons: . . . (5) Making or filing a report that the person knows
to be false [(i.e. filing a claim for psychotherapy after a legal determination has been made
that depossession therapy is experimental and does not fall within the accepted definition of
psychotherapy)] . . . . Id. Thus, the Board could discipline Dr. Modi for such conduct;
however, the sanction for such discipline must fall within the provisions of West Virginia
Code § 30-3-14(i). See supra note 11 of majority opinion. Simply stated, directing the
method in which a physician must bill an insurance carrier is not an available sanction under
West Virginia Code § 30-3-14(i), where the Board determines that a violation of West
Virginia Code § 30-3-14(c)(5) occurred.
Consequently, while I disagree with some of the majority's reasoning and at least one
of their primary bases for reversal (relating to the issue of experimental treatment and written
consent), I concur in the opinion because I believe the Board failed to give a reasoned,
articulate statement of the reasons for its amended findings and conclusions, and it should
be required to do so.
Footnote: 1 1Syllabus point five of the majority opinion gives the Board a broader scope of review with regard to findings of fact than has been accorded other administrative agencies. Generally, "[e]videntiary findings made [by a hearing examiner] at an administrative hearing should not be reversed unless they are clearly wrong." Randolph County Bd. of Educ. v. Scalia, 182 W. Va. 289, 292, 387 S.E.2d 524, 527 (1989); see generally Syl. Pt. 5, Frymier- Halloran v. Paige, 193 W. Va. 687, 458 S.E.2d 780 (1995); Syl. Pt. 3, Butcher v. Gilmer County Bd. of Educ., 189 W. Va. 253, 429 S.E.2d 903 (1993); Syl., West Virginia Dep't of Health v. West Virginia Civil Serv. Comm'n, 178 W. Va. 237, 358 S.E.2d 798 (1987); Syl. Pt. 2, Vosberg v. Civil Serv. Comm'n, 166 W. Va. 488, 275 S.E.2d 640 (1981). However, 11 West Virginia Code of State Rules § 11-3-13.2 (1994) apparently confers more latitude to the Board in its review of a hearing examiner's findings of fact. That rule provides, in pertinent part, that "[t]he hearing examiner shall submit written findings of fact and conclusions of law to the Board pursuant to West Virginia code section three, article five, chapter twenty-nine-a, and the Board may adopt, modify or reject such findings of fact and conclusions of law." Id.; see Berlow v. West Virginia Bd. of Medicine, 193 W. Va. 666, 458 S.E.2d 469 (1995).