Deborah Lewis Rodecker, Esq.
Charleston, West Virginia
Attorney for the Petitioner
Carl N. Frankovitch, Esq.
Volk, Frankovitch, Anetakis, Recht,
Robertson & Hellerstedt
Weirton, West Virginia
Attorney for the Weirton Medical Center, Inc.
JUSTICE NEELY delivered the Opinion of the Court.
1. Jurisdiction to review decisions of the West
Virginia Board of Medicine under W. Va. Code, 30-3-14(b) , is
appropriate in either the Circuit Court of Kanawha County or in the
circuit court of the county in which the petitioners or any one of
the petitioners resides or does business.
2. Review of decisions by the West Virginia Board of
Medicine under W. Va. Code, 30-3-14(b) , shall be upon the
record made before the Board of Medicine unless the petitioner can
demonstrate substantial procedural irregularities in the
proceedings before the Board of Medicine.
3. Under W. Va. Code, 53-1-2 , jurisdiction of writs of mandamus and prohibition for actions against the West Virginia Board of Medicine is appropriate only in the Circuit Court of Kanawha County.
The West Virginia Board of Medicine seeks a writ of
prohibition against the Circuit Court of Brooke County and the
Weirton Medical Center, asking that we prohibit the respondent
circuit court from hearing Civil Action No. 91-P-70 brought by the
respondent medical center, or, in the alternative, that we prohibit
the respondent circuit court from making an in camera inspection of
certain materials requested by the Medical Center. We grant the
writ as moulded.
This petition arises out of an action between the Medical
Center and Jorge A. Martinez, M.D. On 4 August 1986, the Medical
Center summarily suspended Dr. Martinez's staff privileges, and on
4 September 1986, the executive committee of the Medical Center
determined that Dr. Martinez was an "impaired physician," but that
he might retain his privileges after analysis and treatment of his
impairment. On 12 January 1987, the governing board of the Medical
Center terminated Dr. Martinez's privileges.
On 10 September 1991, the Board of Medicine issued an order pursuant to W. Va. Code, 30-3-14(b)  finding that the Medical Center had failed to report the disciplinary actions against Dr. Martinez and the board assessed a civil penalty against
the Medical Center for $7,500.See footnote 1 The Medical Center appealed this
decision to the Circuit Court of Brooke County.
First, the Board of Medicine contends that the Circuit
Court of Brooke County is without jurisdiction to hear this appeal
by virtue of W. Va. Code, 30-3-14(b) . Specifically,
petitioner points to the language that states:
If the violator fails to pay the amount of the assessment to the Board within 30 days, the attorney general may institute a civil action in the circuit court of Kanawha County to recover the amount of the assessment.
The petitioner argues that this language vests all jurisdiction for
appeals in the Circuit Court of Kanawha County.
However, procedures for appeals of decisions by
administrative agencies are governed by the State Administrative
Procedures Act, W. Va. Code, 29A-1-1 et seq. . W. Va. Code,
29A-5-4(a) and (b)  provide:
(a) Any party adversely affected by a final order or decision in a contested case is entitled to judicial review thereof under this chapter, but nothing in this chapter shall be deemed to prevent other means of review, redress or relief provided by law.
(b) Proceedings for review shall be instituted by filing a petition, at the election of the petitioner, in either the circuit court of Kanawha county, West Virginia, or with the judge thereof in vaction [sic], or in the circuit court of the county in which the petitioner or any one of the petitioners resides or does business, or with the judge thereof in vacation, within thirty days after the date upon which such party received notice of the final order or decision of the agency. A copy of the petition shall be served upon the agency and all other parties of record by registered or certified mail. The petition shall state whether the appeal is taken on questions of law or
questions of fact, or both. No appeal bond
shall be required to effect any such appeal.
In W. Va. Code, 29A-5-5 , the legislature exempted
certain state administrative agencies from the requirements of W.
Va. Code, 29A-5-4 , but it did not exempt the Board of
Medicine from these requirements. Therefore, although these
overlapping jurisdictional statutes were inartfully drafted, we
find that the intention of the legislature is clear. After an
adverse decision by the West Virginia Board of Medicine, the party
adversely affected may bring a petition for review in either the
Circuit Court of Kanawha County or in the circuit court of the
county in which the petitioner or any one of the petitioners
resides or does business.See footnote 2 However, jurisdiction of writs of
mandamus and prohibition for actions against the West Virginia
Board of Medicine is appropriate only in the Circuit Court of
Kanawha County in accordance with W. Va. Code, 53-1-2  and W.
Va. Code, 14-2-2 .See footnote 3
The petitioner also argues that the circuit court exceeded his authority by ordering an in camera inspection of certain materials requested by the Medical Center, specifically:
1. The entire personnel file and records relating to Jorge A. Martinez, M.D.
2. Copies of all communications and
administrative proceedings relating to
the failure of any hospital to report
disciplinary action pursuant to W. Va.
Code § 30-3-14, and as well all
communications and disciplinary
proceedings with insurers for failure to
report settlements in malpractice cases
pursuant to W. Va. Code § 30-3-14.
Motion to produce of Weirton Medical Center, not dated.
Petitioner argues that under W. Va. Code, 29A-5-4(f)  "review . . . shall be upon the record made before the agency."See footnote 4 Although the Medical Center alleges "several procedural irregularities" and denial of equal protection, such vague allegations are not sufficient to require a major, full blown trial on an issue entirely unrelated to a disciplinary action under W. Va. Code, 29A-5-4(f) .
At oral argument the Medical Center's counsel admitted
that the Medical Center did not claim that the Board of Medicine
discriminated against it on the basis of sex, race, geographical
location, or some other suspect classification. The
"irregularities in procedure" spoken of by W. Va. Code, 29-5-4(f)
 do not include vague allegations of abuses that really
amount to nothing more than prosecutorial discretion. Although we
may argue on an intellectual level whether it is appropriate,
legislatures and courts long ago decided that "government by
administrative agency" is a necessary evil.
From a review of the record, we find no legitimate reason
to require the Board of Medicine to produce the records of all its
past disciplinary proceedings under W. Va. Code, 30-3-14 .
As for the records relating to Dr. Martinez' case, the Medical
Center should have requested them at the hearing before the Board
of Medicine, but the Medical Center did not. See Respondent's
Memorandum of Law at 3. Apparently, the Medical Center believes
that continued delay and harassment will cause the Board of
Medicine to drop the $7,500 fine. We decline to add unnecessarily
to this harassment.See footnote 5 Allegations of substantial procedural
irregularities would provide grounds for reopening, but at oral
argument, the Medical Center's counsel was unable to articulate any
irregularities of a substantial nature or any specific needs for
the material respondent sought for any purpose that we find
legitimate. Indeed, we would also allow reopening of the record
upon allegation of substantial violations of due process, (see Yick
Wo v. Hopkins, 118 U.S. 356 (1886), and its progeny) but counsel
admitted that no violations of this magnitude occurred in the case
Accordingly, we find that the jurisdiction for review of the decision of the Board of Medicine is proper in Brooke County, but we grant a writ prohibiting the Circuit Court of Brooke County from enforcing its order entered 6 February 1992 requiring the
Board of Medicine to produce for in camera inspection the documents
requested by the Medical Center.
Writ Granted as Moulded.
Footnote: 1W. Va. Code, 30-3-14(b)  provides:
Upon request of the board, any medical peer
review committee in this state shall report
any information that may relate to the
practice or performance of any physician or
podiatrist known to the medical peer review
committee. Copies of such requests for
information from a medical peer review
committee may be provided to the subject
physician or podiatrist if, in the discretion
of the board, the provision of such copies
will not jeopardize the board's investigation.
In the event that copies are so provided, the
subject physician or podiatrist is allowed
fifteen days to comment on the requested
information and such comments must be
considered by the board.
After the completion of a hospital's formal
disciplinary procedure and after any resulting
legal action, the chief executive officer of
such hospital shall report in writing to the
board within sixty days the name of any member
of the medical staff or any other physician or
podiatrist practicing in the hospital whose
hospital privileges have been revoked,
restricted, reduced or terminated for any
cause, including resignation, together with
all pertinent information relating to such
action. The chief executive officer shall
also report any other formal disciplinary
action taken against any physician or
podiatrist by the hospital upon the
recommendation of its medical staff relating
to professional ethics, medical incompetence,
medical malpractice, moral turpitude or drug
or alcohol abuse. Temporary suspension for
failure to maintain records on a timely basis
or failure to attend staff or section meetings
need not be reported.
Any professional society in this state comprised primarily of physicians or podiatrists which takes formal disciplinary action against a member relating to professional ethics, professional incompetence, professional malpractice, moral
turpitude or drug or alcohol abuse, shall
report in writing to the board within sixty
days of a final decision the name of such
member, together with all pertinent
information relating to such action.
Every person, partnership, corporation,
association, insurance company, professional
society or other organization providing
professional liability insurance to a
physician or podiatrist in this state shall
submit to the board the following information
within thirty days from any judgment,
dismissal or settlement of a civil action or
of any claim involving the insured: The date
of any judgment, dismissal or settlement;
whether any appeal has been taken on the
judgment, and, if so, by which party; the
amount of any settlement or judgment against
the insured; and such other information as the
board may require.
Within thirty days after a person known to
be a physician or podiatrist licensed or
otherwise lawfully practicing medicine and
surgery or podiatry in this state or applying
to be so licensed is convicted of a felony
under the laws of this state, or of any crime
under the laws of this state involving alcohol
or drugs in any way, including any controlled
substance under state or federal law, the
clerk of the court of record in which the
conviction was entered shall forward to the
board a certified true and correct abstract of
record of the convicting court. The abstract
shall include the name and address of such
physician or podiatrist or applicant, the
nature of the offense committed and the final
judgment and sentence of the court.
Upon a determination of the board that there is probable cause to believe that any person, partnership, corporation, association, insurance company, professional society or other organization has failed or refused to make a report required by this subsection, the board shall provide written notice to the alleged violator stating the nature of the
alleged violation of the time and place at
which the alleged violator shall appear to
show good cause why a civil penalty should not
be imposed. The hearing shall be conducted in
accordance with the provisions of article five
[§ 29A-5-1 et seq.], chapter twenty-nine-a of
this code. After reviewing the record of such
hearing, if the board determines that a
violation of this subsection has occurred, the
board shall assess a civil penalty of not less
than one thousand dollars nor more than ten
thousand dollars against such violator.
Anyone so assessed shall be notified of the
assessment in writing and the notice shall
specify the reasons for the assessment. If
the violator fails to pay the amount of the
assessment to the board within thirty days,
the attorney general may institute a civil
action in the circuit court of Kanawha County
to recover the amount of the assessment. In
any such civil action, the court's review of
the board's action shall be conducted in
accordance with the provisions of section four
[§ 29A-5-4], article five, chapter twenty-nine-a of this code.
Any person may report to the board relevant
facts about the conduct of any physician or
podiatrist in this state which in the opinion
of such person amounts to professional
malpractice or professional incompetence.
The board shall provide forms for filing
reports pursuant to this section. Reports
submitted in other forms shall be accepted by
The filing of a report with the board pursuant to any provision of this article, any investigation by the board or any disposition of a case by the board does not preclude any action by a hospital, other health care facility or professional society comprised primarily of physicians or podiatrists to suspend, restrict or revoke the privileges or membership of such physician or podiatrist.
Footnote: 2Thereafter, any final decision of the circuit court adversely affecting the petitioner is binding under the doctrine of res judicata in a suit brought for collection by the attorney general.
Footnote: 3W. Va. Code, 53-1-2  provides:
Jurisdiction of writs of mandamus and prohibition (except cases whereof cognizance has been taken by the supreme court of appeals or a judge thereof in vacation), shall be in the circuit court of the county in which the record or proceeding is to which the writ relates. A rule to show cause as hereinafter provided for may be issued by a judge of a circuit court or of the supreme court of
appeal in vacation. A writ peremptory may be
awarded by a circuit court or a judge thereof
in vacation, or by the supreme court of
appeals in term.
W.Va. Code, 14-2-2  provides:
(a) The following proceedings shall be brought and
prosecuted only in the circuit court of Kanawha county:
(1) Any suit in which the governor, any other state
officer, or a state agency is made a party defendant,
except as garnishee or suggestee.
(2) Any suit attempting to enjoin or otherwise suspend
or affect a judgment or decree on behalf of the State
obtained in any circuit court.
(b) Any proceeding for injunctive or mandamus relief
involving the taking, title, or collection for or
prevention of damage to real property may be brought and
presented in the circuit court of the county in which the
real property affected is situate.
This section shall apply only to such proceedings as are not prohibited by the constitutional immunity of the State from suit under section 35, article VI of the Constitution of the State.
Footnote: 4W. Va. Code, 29-5-4(f)  provides:
The review shall be conducted by the court without a jury and shall be upon the record made before the agency, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken before the court. The court may hear oral arguments and require written briefs.
Footnote: 5We do not intend to require the Board of Medicine to rent a U-Haul trailer to transport voluminous records to Brooke County only to satisfy the Medical Center's vague allegations.