Submitted: January 13, 1993
Filed: February 16, 1993
Mario J. Palumbo
Kelli D. Talbott
Senior Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellant
Richard J. Bolen
Scott K. Sheets
Huddleston, Bolen, Beatty, Porter
Huntington, West Virginia
Attorneys for the Appellee
JUSTICE MILLER delivered the Opinion of the Court.
1. "'When a statute is clear and unambiguous and the
legislative intent is plain the statute should not be interpreted
by the courts, and in such case it is the duty of the courts not to
construe but to apply the statute.' Point 1, syllabus, State ex
rel. Fox v. Board of Trustees of the Policemen's Pension or Relief
Fund of the City of Bluefield, et al., 148 W. Va. 369 [135 S.E.2d
262 (1964)]." Syllabus Point 1, State ex rel. Board of Trustees v.
City of Bluefield, 153 W. Va. 210, 168 S.E.2d 525 (1969).
2. W. Va. Code, 30-23-3(a), is designed to require a
license to practice radiologic technology by a person who is
engaged in such practice unless the person is exempt under W. Va.
3. W. Va. Code, 30-23-3(b), prohibits any firm,
association, or corporation from providing radiologic technology
services unless the service is provided through a licensed
practitioner or a licensee.
The West Virginia Radiologic Technology Board of
Examiners (Board) appeals a final order of the Circuit Court of
Cabell County, dated November 27, 1991, dismissing its petition for
injunction against H. Darrel Darby, a licensed doctor of podiatric
medicine. The Board sought to enjoin Dr. Darby from using
unlicensed members of his staff as radiologic technologists.See footnote 1 The
circuit court ruled that it was not a violation of the Radiologic
Technologists Act, W. Va. Code, 30-23-1, et seq., to employ
unlicensed individuals to take x-rays, and, therefore, the Board
did not have the authority to enjoin Dr. Darby from doing so under
W. Va. Code, 30-23-12. We disagree; accordingly, we reverse and
remand the case for further proceedings consistent with this
The Board is a duly constituted body empowered to
regulate the practice of radiologic technology. See W. Va. Code,
30-23-5. The Board's responsibilities include issuing, suspending,
and revoking licenses to practice radiologic technology, as well as
disciplining those individuals and organizations who violate the
provisions of the Act. One of the provisions, W. Va. Code, 30-23-3(a),See footnote 2 requires any individual who practices radiologic technology
in this State to first obtain a license from the Board. If a
person is found taking x-rays without a license, the Board can
enjoin that individual from engaging in further practice pursuant
to W. Va. Code, 30-23-12.See footnote 3
Since 1978, the West Virginia Department of Health and
Human Resources (Department) has assisted the Board by providing
qualified personnel to inspect medical facilities that use
radiographic equipment to ensure that those facilities are
complying with the law. From November, 1987, to March, 1990,
inspectors for the Department cited Dr. Darby on three different
occasions for using unlicensed members of his staff as radiologic
technologists. On each occasion, Dr. Darby was notified that this
practice violated the Act and that continuing violations would
result in disciplinary action.
On April 3, 1991, when Dr. Darby was still not in
compliance with the Act, the Board filed a petition for injunction
against him in the Circuit Court of Cabell County. In response,
Dr. Darby filed a motion to dismiss the petition on the grounds
that he had not violated the Act. Dr. Darby argued that the Act
was promulgated to regulate radiologic technologists and exempts
from regulation licensed practitioners, such as himself.See footnote 4 The
particular exemption language is found in W. Va. Code, 30-23-6(c)(4). However, W. Va. Code, 30-23-6(b), contains a number of
other exemptions.See footnote 5 Dr. Darby also contended that there was no
express provision prohibiting licensed practitioners from employing
unlicensed radiologic technologists and, therefore, the Board did
not have the authority to enjoin him. The circuit court agreed and
dismissed the Board's petition for injunction.
One of our traditional rules of statutory construction is
contained in Syllabus Point 1 of State ex rel. Board of Trustees v.
City of Bluefield, 153 W. Va. 210, 168 S.E.2d 525 (1969):
"'When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.' Point 1, syllabus, State ex rel. Fox v. Board of Trustees of the Policemen's Pension or Relief Fund of the City of Bluefield, et al., 148 W. Va. 369 [135 S.E.2d 262 (1964)]."
See also Courtney v. State Dep't of Health, 182 W. Va. 465, 388
S.E.2d 491 (1989); Craig v. City of Huntington, 179 W. Va. 668, 371
S.E.2d 596 (1988); State ex rel. Bowlick v. Board of Educ., 176
W. Va. 524, 345 S.E.2d 824 (1986); State ex rel. Underwood v.
Silverstein, 167 W. Va. 121, 278 S.E.2d 886 (1981); State v. Elder,
152 W. Va. 571, 165 S.E.2d 108 (1968). With this settled principle
as guidance, we now address the merits of this case.
There appears to be no dispute that W. Va. Code, 30-23-3(a), is designed to require a license to practice radiologic
technology by a person who is engaged in such practice unless the
person is exempt under W. Va. Code, 30-23-6(c). We do not agree
with Dr. Darby that W. Va. Code, 30-23-3, applies only to the
individual who actually takes x-rays and does not address the
responsibility of employers of radiologic technologists. Under
W. Va. Code, 30-23-3(b), employers are regulated:
"No firm, association or corporation may, except through a licensee or licensees, render any service or engage in any activity which if rendered or engaged in by any individual would constitute the practice of radiologic technology."
W. Va. Code, 30-23-3(b), clearly and unambiguously prohibits any
firm, association, or corporation from providing radiologic
technology services unless the service is provided through a
licensed practitioner or a licensee.See footnote 6
A review of the record demonstrates that Dr. Darby is a
member of Huntington Podiatry Associates. As a member of such an
association, he was involved in an organization that was using
unlicensed personnel to practice radiologic technology. Thus,
under the clear and unambiguous language of W. Va. Code, 30-23-12,
the Board had the authority to enjoin Dr. Darby, as a member of the
association, from using unlicensed members of his staff as
Even if we were to assume that Dr. Darby is a sole
practitioner and is not connected with a firm, association, or
corporation, we would still believe that he could not lawfully
employ an unlicensed technician to perform radiological
examinations on his patients. Dr. Darby is licensed by the West
Virginia board of medicine pursuant to W. Va. Code, 30-3-10(a)
(1991).See footnote 7 Under W. Va. Code, 30-3-14(c)(16) (1989), it is unlawful
for a physician or podiatrist to "[d]elegat[e] professional
responsibilities to a person when the physician or podiatrist
delegating such responsibilities knows or has reason to know that
such person is not qualified by training, experience or licensure
to perform them." (Emphasis added).
Other jurisdictions, under provisions similar to W. Va.
Code, 30-3-14(c)(16), have found professional violations where
there has been the hiring of unlicensed persons to perform work
that is required by law to be done by a licensed individual. See,
e.g., Hughes v. Louisiana State Bd. of Dentistry, 490 So. 2d 1097
(La. App.), writ denied, 496 So. 2d 326 (La. 1986), cert. denied,
480 U.S. 933, 107 S. Ct. 1573, 94 L. Ed. 2d 764 (1987); In the
Matter of Chall v. New York State Bd. of Regents, 168 A.D.2d 706,
563 N.Y.S.2d 862 (1990); Commonwealth v. Hood, 392 Pa. Super. 388,
572 A.2d 1287 (1990); Boggs v. Virginia Bd. of Dental Examiners,
213 Va. 751, 196 S.E.2d 81 (1973).
Thus, even if Dr. Darby as a solo practitioner employed
unlicensed individuals to take x-rays of his patients, he would be
guilty of delegating professional responsibilities to persons he
knew were not qualified to perform such activity and would be in
violation of W. Va. Code, 30-3-14(c)(16). Moreover, employing
unlicensed technicians would directly encourage a violation of
W. Va. Code, 30-23-3(a). Dr. Darby would, in effect, be violating
this section of the act. Such a violation is grounds for an
injunction by the Board under W. Va. Code, 30-23-12. This section
allows the Board to enjoin any person or other persons "who have
been, are or are about to be, involved in any practice" that would
violate the Act.See footnote 8
For the reasons stated herein, we reverse the November
27, 1991, final order of the Circuit Court of Cabell County and
remand the case for further proceedings consistent with this
Reversed and remanded
Footnote: 1W. Va. Code, 30-23-2(e), defines a "radiologic technologist" as "a person, other than a licensed practitioner who applies X rays or assists in the application of X rays to human beings for diagnostic or therapeutic purposes under the supervision of a licensed practitioner."
Footnote: 2W. Va. Code, 30-23-3(a), states, in part:
"No person may engage in, offer to
engage in, or hold himself out to the public
as being engaged in, the practice of
radiologic technology in this state . . .
unless and until he first obtains a license
or temporary permit to engage in the practice
of radiologic technology in accordance with
the provisions of this article[.]"
Footnote: 3W. Va. Code, 30-23-12, reads, in pertinent part:
"Whenever it appears to the board
that any person has been or is violating or
is about to violate any provision of this
article, any reasonable rule and regulation
promulgated hereunder or any order or final
decision of the board, the board may apply in
the name of the state to the circuit court of
the county in which the violation or
violations or any part thereof has occurred,
is occurring or is about to occur, for an
injunction against any such person and any
such other persons who have been, are or are
about to be, involved in any practice, acts
or omissions, so in violation, enjoining such
person or persons from any such violation or
Footnote: 4A "licensed practitioner" is a "person licensed to practice medicine, chiropractic, podiatry, osteopathy or dentistry." W. Va. Code, 30-23-2(c).
Footnote: 5W. Va. Code, 30-23-6(c), also provides a number of other
"The following persons are not
required to obtain a license in accordance
with the provisions of this article:
"(1) A technology student enrolled in or attending an approved school of technology who as part of his course of study applies ionizing radiation to a human being under the supervision of a licensed practitioner;
"(2) A person acting as a dental
assistant who under the supervision of a
licensed dentist operates only radiographic
dental equipment for the sole purpose of
"(3) A person engaged in performing the duties of a technologist in his employment by an agency, bureau or division of the government of the United States; and
"(4) Any licensed practitioner, radiologist or radiology resident." (Emphasis added).
Footnote: 6W. Va. Code, 30-23-2(d), defines a "licensee" as "any person holding a license or a temporary permit issued under the provisions of this article."
Footnote: 7W. Va. Code, 30-3-10(a), states: "The board shall issue a license to practice medicine and surgery or to practice podiatry to any individual who is qualified to do so in accordance with the provisions of this article." The provisions of W. Va. Code, 30-3-1, et seq., known as the West Virginia Medical Practice Act, regulates the practice of surgery, medicine, and podiatry.
Footnote: 8For the complete text of W. Va. Code, 30-23-12, see note 3, supra.