holding that “[t]he West Virginia Rules of Evidence remain the paramount authority in determining the admissibility of evidence in circuit courts. These rules constitute more than mere refinement of common law evidentiary rules, they are a comprehensive reformulation of them.”
How later courts described this case
- holding that “[t]he West Virginia Rules of Evidence remain the paramount authority in determining the admissibility of evidence in circuit courts. These rules constitute more than mere refinement of common law evidentiary rules, they are a comprehensive reformulation of them.”
- explaining that “[w]e must uphold any of the [administrative agency’s] factual findings that are supported by substantial evidence, and we owe substantial deference to inferences drawn from these facts”
- noting that “appellate courts frequently refuse to address issues that appellants . . . fail to develop in their brief.”
- observing that “[a] reviewing court cannot assess witness credibility through a record.”
Written by the judges who cited it.
The opinion
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Philip Fisher, D.O.,
Respondent Below, Petitioner FILED
June 3, 2016
vs) No. 15-0690 (Kanawha County 15-AA-7) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
West Virginia Board of
Osteopathic Medicine,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner and respondent below Philip O. Fisher, D.O., by counsel Donald Jarrell,
appeals the June 12, 2015, order of the Circuit Court of Kanawha County that affirmed the
decision of respondent and petitioner below the West Virginia Board of Osteopathic Medicine
(“Board”) to revoke petitioner’s license to practice osteopathic medicine and surgery in West
Virginia. Respondent, by counsel Jennifer K. Akers, filed a response in support of the circuit
court’s order. Petitioner filed a reply.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
Procedural History
Petitioner has been licensed to practice osteopathic medicine and surgery in West
Virginia since 1995. He operated the Huntington Spine Rehab & Pain Center. The Board filed
statements of charges on February 9, 2011, and August 26, 2011, in which it alleged a variety of
unprofessional and unethical conduct on the part of petitioner. Also on August 26, 2011, the
Board summarily and immediately suspended petitioner’s license to practice until further order
of the Board or a court of competent jurisdiction. A hearing was thereafter conducted regarding
petitioner’s suspension. On October 24, 2011, Hearing Examiner Carole Bloom issued a
recommended decision recommending that the Board affirm the summary suspension. On
November 11, 2011, the Board adopted the recommended decision. Petitioner did not appeal the
suspension order.
A hearing to determine whether petitioner’s osteopathic license should be revoked was
conducted on July 28, and August 1, 4, 6, and 8, 2014, before Hearing Examiner Janis Reynolds.
By order entered December 11, 2014, the hearing examiner issued findings of fact, conclusions
1
of law, and a recommendation that petitioner’s license to practice be revoked, which
recommendation was thereafter adopted by the Board. See W.Va. Code § 30-1-8.1 Petitioner
appealed the Board’s decision to the circuit court. By order entered June 12, 2015, the circuit
court affirmed the Board’s decision. This appeal followed.
Patient 1
Patient 1 died at her home on November 29, 2009. The Board found that petitioner
treated Patient 1 from December 2007 until the time of her death for Epstein-Barr syndrome and
other disorders. The evidence revealed that Patient 1 worked for petitioner as a registered nurse
anesthetist; had a sexual relationship with him; lived in his house; and had access to prescription
drugs that other patients had returned to petitioner and that were left in petitioner’s office.
According to the autopsy, the death was accidental and the cause of death was “the result of
combined fentanyl, alprazolam, doxylamine intoxication, due to application of non-prescribed
fentanyl patch.”2
The Board concluded that petitioner’s failure to properly secure and/or destroy controlled
substances that were returned to him by patients allowed Patient 1 to divert these controlled
substances and that they contributed to her death, in violation of 24 C.S.R. § 1-18.1.10 (2001).3
The Board further concluded that petitioner violated 24 C.S.R. § 1-18.1.5 (2001)4 “by keeping
1
West Virginia Code § 30-1-8, inter alia, authorizes the Board to suspend or revoke an
individual’s license to practice osteopathic medicine.
2
In connection with the investigation into the death of Patient 1, a small metal safe was
found in petitioner’s home that contained prescription bottles of controlled substances that had
been prescribed for other patients.
3
24 C.S.R. § 1-18.1.10 (2001) states that
The Board may deny an application for a license, place a licensee on
probation, suspend a license, limit or restrict a license or revoke any license
issued by the Board, upon satisfactory proof that the licensee has:
Engaged in unprofessional conduct, including, but not limited to, any
departure from, or failure to conform to, the standards of acceptable and
prevailing medical practice, or the ethics of the osteopathic medical profession,
irrespective of whether or not a patient is injured by the conduct, or has
committed any act contrary to honesty, justice or good morals, whether the act is
committed in the course of his or her practice and whether committed within or
without this State[.]
4
24 C.S.R. § 1-18.1.5 (2001) states:
(continued . . .)
2
controlled substance medications that had been returned by some of his patients for the purpose
of redistributing these substances to other persons, and by actually distributing them to other
persons [i.e., a fentanyl patch], such as Patient 1.” Finally, the Board concluded that, by
“engag[ing] in sexual activity within a patient-physician relationship,” petitioner violated 24
C.S.R. § 1-18.1.10.
Patient 2
Patient 2 died at her home on November 13, 2004, due to the acute combined toxicity of
prescribed fentanyl, oxycodone, sertraline, olanzapine, and ethanol.5 Upon her death, fentanyl
and oxycodone were found to be present in the blood at concentrations that can cause fatal
respiratory depression. Petitioner treated Patient 2 from May 2001 until her death. Patient 2
reportedly suffered from numerous ailments including, but not limited to, bursitis, headaches,
gout, and lumbar spine pain. The Board found that petitioner was aware that she had been
misusing her immediate release fentanyl and that, although he ceased prescribing this medication
for a period of time, he eventually resumed prescribing it, and subsequently wrote refills.
Petitioner also prescribed oxycodone without seeing Patient 2 in his office. The Board’s expert,
Dr. Jason Pope, testified that petitioner’s diagnosis of Patient 2 did not warrant the prescriptions
of the drugs petitioner prescribed.
The Board concluded that petitioner’s treatment of Patient 2 violated 24 C.S.R. § 1
18.1.10 “by routinely prescribing controlled substances in such amounts, frequency and duration
to Patient [2], without adequately monitoring the patient’s drug use.”
Patient 3
Patient 3, a fifty-six year-old male, died on June 26, 2007, from “combined heroin,
alprazolam, and temazepam intoxication, with evidence of needle-type drug use and recent
cocaine use.” Petitioner had treated Patient 3 since April 28, 2003, and routinely prescribed
controlled substances for this patient. Given that petitioner failed to submit office visit notes into
the record below for Patient 3, the Board found that there was no evidence that petitioner
monitored this patient’s use of controlled substances through pill counts, urine drug screens, or
pharmacy reports.
The Board may deny an application for a license, place a licensee on
probation, suspend a license, limit or restrict a license or revoke any license
issued by the Board, upon satisfactory proof that the licensee has:
Engaged in dishonorable, unethical or unprofessional conduct of a
character likely to deceive, defraud or harm the public or any member of the
public[.]
5
Patient 2 was also being treated by a psychiatrist, who prescribed anti-depressants and
anti-psychotic medications.
3
The Board concluded that petitioner violated 24 C.S.R. §§ 1-18.1.5 and 18.1.10 by
routinely prescribing controlled substances to Patient 3 in such amounts, frequency, and
duration, without adequately monitoring his drug use, “which conduct was a contributing cause
of Patient 3’s death.”
Patient 4
Patient 4, a forty-one year-old male, died on May 17, 2008, due to combined fentanyl,
propoxyphene, hydroxyzine, and diazepam intoxication. Petitioner treated Patient 4 from July
2005 until at least April 24, 2008.6 The Board found that, although Patient 4 missed several
appointments with petitioner, petitioner continued to write prescriptions for controlled
substances for him. The Board further found that petitioner failed to monitor Patient 4 through
urine drug screens, pill counts, or pharmacy reports, which would have shown that Patient 4 was
diverting his prescribed medicine and obtaining drugs from other providers.
The Board concluded that petitioner violated 24 C.S.R. §§ 1-18.1.5 and 18.1.10 by
routinely prescribing controlled substances to Patient 4 in such amounts, frequency, and
duration, without adequately monitoring his drug use, “which conduct was a contributing cause
of Patient 4’s death.”
Patient 5
Patient 5, a thirty-nine year-old male, died on April 24, 2008, from bronchopneumonia
due to the acute combined effects of methadone, fluoxetine, and dextromethorphan, with a
contributory cause of hypertensive cardiovascular disease with mild coronary artery stenosis.
The Board found that petitioner first treated Patient 5 on April 22, 2008, when he presented with
a significant medical history of motor vehicle accidents and surgeries. In a questionnaire he
completed for petitioner, Patient 5 listed the drugs he was taking. Following examination,
petitioner increased Patient 5’s methadone, maintained his dose of Klonopin, prescribed Lunesta,
and took him off of Roxicodone, Neurontin, and Prozac. In doing so, petitioner did not first
contact Patient 5’s previous physician or perform a urine drug screen.
The Board concluded that petitioner violated and 24 C.S.R. § 1-18.1.24 (2001)7 and
6
Though petitioner also routinely prescribed hydrocodone and temazepam for Patient 4,
these drugs were not present in his system at the time of death.
7
24 C.S.R. § 1-18.1.24 (2001) states:
The Board may deny an application for a license, place a licensee on
probation, suspend a license, limit or restrict a license or revoke any license
issued by the Board, upon satisfactory proof that the licensee has:
Engaged in malpractice or failed to practice medicine with that level of
care, skill and treatment which is recognized by a reasonable, prudent physician
(continued . . .)
4
18.1.10 in his treatment of Patient 5, by prescribing a controlled substance in such amounts and
frequency, under the circumstances, which treatment contributed to the death of Patient 5.
Finally, the Board concluded that petitioner’s “acts and failures were a direct cause of Patient 5’s
death.”
Patient 6
Patient 6, a fifty-two year-old male, died on February 16, 2009, due to combined
intoxication by prescribed oxycodone and alprazolam. Petitioner treated Patient 6 from January
28, 2008, until his death. The Board found that, beginning with his first visit, petitioner knew
that Patient 6 was obtaining multiple prescriptions for controlled substances from other providers
and using different pharmacies to fill prescriptions. Nonetheless, petitioner prescribed 120 15 mg
oxycodone pills in February, in March, and in April 2008, without consulting with the patient.
Petitioner refilled the patient’s oxycodone prescriptions in May and June 2008 and again in
August 2008 (at which time petitioner also prescribed alprazolam) and continued to do so until
Patient 6’s death.8
The Board concluded that petitioner’s conduct “involving Patient 6 constitute[s]
unprofessional conduct,” in violation of 24 C.S.R. § 1-18.1.10. The Board further concluded that
petitioner’s “acts and failures were a contributing cause of the death of Patient 6.”
Patient 7
Patient 7, a thirty-seven year-old male, died on October 10, 2009, from oxycodone and
alprazolam insufflation. Petitioner treated Patient 7 from December 2003 to October 2004, and
then again beginning in May 2008. The Board found that petitioner was advised that Patient 7
was routinely receiving multiple controlled substances from other providers, which is an
indication of misuse or diversion. For over a year preceding Patient 7’s death, petitioner
prescribed a variety of drugs, including hydrocodone, alprazolam, zolpidem tartrate, OxyContin,
carisoprodol, Lortab, and Xanax. The Board found that petitioner failed to monitor Patient 7, yet
continued to prescribe controlled substances for him. Dr. Matthew Ranson, one of the Board’s
experts, testified that it was not within the standard of care for a physician to provide so many
different prescriptions within the span of one week and that he knew of no prudent pain
management physician who would provide a patient with two immediate release opioid
medications at the same time as petitioner did.
The Board concluded that petitioner violated 24 C.S.R. § 1-18.1.24. by prescribing
controlled substances “in such amounts, frequency and duration, without adequately monitoring
the patient’s drug use, while knowing Patient 7 was at risk of misuse or diversion of controlled
engaged in the same or a similar specialty as being acceptable under similar
conditions and circumstances[.]
8
Petitioner’s former medical partner refilled Patient 6’s oxycodone prescription in July
and October 2008.
5
substances[.]” The Board further concluded that petitioner’s actions were “a contributing cause
of the death of Patient 7.”
Patient 8
Petitioner had treated Patient 8 since 1997. Patient 8, an osteopathic physician, had
previously injured his back. Petitioner knew that, in 2006, Patient 8 was receiving controlled
substances from multiple doctors. Even though petitioner advised Patient 8 that this conduct
violated his “drug agreement” and that he (Patient 8) could be dismissed from his practice for
such conduct, petitioner did not take any further action and continued to prescribe controlled
substances to Patient 8. Patient 8 entered into rehabilitation treatment and, upon his discharge, a
detailed discharge plan and Treatment Plan Agreement required, among other things, frequent
monitoring and monthly reports by petitioner as one of his physicians. The Board found that
petitioner failed to regularly provide the required monthly reports. Petitioner proceeded to
prescribe suboxone for Patient 8 from August 2008 through December 15, 2010, without ever
seeing him, even though the record clearly showed that this patient had addiction problems and
was self-prescribing. The Board found that petitioner failed to monitor Patient 8 with urine drug
screens, pharmacy reports, pill counts, or face-to-face visits. According to the Board’s expert,
Dr. Pope, patients taking suboxone need to be vigilantly monitored to check for efficacy and
potential side effects. Dr. Pope testified that face-to-face visits with the patient are essential and
that petitioner failed to meet the standard of care expected in a situation such as Patient 8’s.
The Board concluded that petitioner violated 24 C.S.R. §§ 1-18.1.5 and 18.1.10 “by
routinely prescribing controlled substances to Patient 8, without seeing or monitoring him for a
period of almost one year.”
Patient 109
The Board found that petitioner became romantically and sexually involved with Patient
10 while she was his patient. The Board further found that petitioner treated her with controlled
substances and injections from August 14, 2009, to September 7, 2010. Patient 10 lived in
petitioner’s house for approximately two months, during which time he gave her three cortisone
injections. After Patient 10 was placed on medical leave, petitioner set up a cot in his office for
her to use.
The Board concluded that petitioner 24 C.S.R. § 1-18.1.5 “by engaging in a romantic and
sexual relationship with patient 10, while Patient 10 was [petitioner’s] patient.”
Patient 11
Petitioner treated Patient 11, a forty-five year-old female, in 2006 and again from August
2009 until August 2011 for osteoarthritis and spondylolisthesis. During this latter period, he
9
The parties’ briefs do not indicate whether or how charges relating to Patient 9 were
resolved.
6
prescribed hydrocodone, oxycodone, and phentermine, without monitoring her or ever giving her
a urine drug screen or doing a pill count. The Board found that petitioner developed and
maintained a romantic relationship with Patient 11 while she was his patient.
The Board concluded that petitioner violated 24 C.S.R. § 1-18.1.5. “by engaging in a
romantic and sexual relationship with Patient 11, while Patient 11 was [petitioner’s] patient.”
April 17, 2010, Incident at the Tri-State Airport
Petitioner and Patient 10 checked baggage on a flight from Huntington, West Virginia, to
Florida. Airport police were alerted that suspicious items were found in petitioner’s bag,
including disposable needles, bottles of injectable medicine, and several bottles of medications.
Only one of the bottles was prescribed to petitioner, while other bottles of oxycodone and
hydrocodone were prescribed for Patients identified as R.P. and C.M., respectively. The Board
found that, when questioned by airport police, petitioner gave vague and conflicting answers.
The Board further found that petitioner’s explanation at the hearing about this medication did
“not make sense.” Patient 10 testified that her memory was vague about this incident but claimed
that it was she who was using the bag at issue and had borrowed it from petitioner.
Pre-signed Prescription Pads
Former employees of petitioner’s practice testified that petitioner began pre-signing
prescriptions on a daily basis beginning in 2009, after his medical partner left the practice.10 The
Board found that employees alternated working “late night” shifts which required, inter alia, that
they respond to prescription refill requests. When a refill request would come in by computer,
petitioner’s employees would check the patient’s file and, if it was determined that the patient
had been seen in the preceding six months, the employee would take a blank, pre-signed
prescription and write the name of the drug, the dosage and amount, and the patient’s name and
date. Employees testified about specific dates when petitioner also pre-signed blank prescription
pads when he was going to be out of town. The Board found that, at various times when
petitioner was out of town, multiple prescriptions were sent out to be filled on forms petitioner
had pre-signed for patients who were not seen by petitioner or any other physician.11
The Board concluded that, by pre-signing blank prescription forms and allowing his
office staff to fill out these forms, knowing that “‘they were not qualified by training, experience
or licensure to perform the[se] responsibilities[,]’” petitioner violated 24 C.S.R. §§ 1-18.1.27
12
and 2913 (2001).
10
Petitioner’s former medical partner, Dr. Lois Weixler, is also petitioner’s former wife.
11
Photographs of multiple pre-signed prescriptions were taken by one of petitioner’s
employees on August 6, 2010, and were sent to the Board.
12
24 C.S.R. § 1-18.1.27 (2001) states:
(continued . . .)
7
Failure to lock up controlled substances
Petitioner admitted, and other witnesses confirmed, that unused controlled substances that
had been returned to petitioner’s office would sometimes sit on petitioner’s desk while he was
seeing patients. Photographs evidencing petitioner’s failure to lock up controlled substances were
admitted into evidence during the hearing before the Board.
The Board concluded that petitioner violated 24 C.S.R. § 1-18.1.10 “by keeping
controlled substances in his office, in his home and in his personal possession, without taking
reasonable steps to secure and dispose of those medications[.]”
Failure to Maintain Patient Records
In January 2011, the Board issued a subpoena to petitioner’s office for a number of
patient medical records. The Board learned that several of the requested records had been seized
by the DEA during a raid on the office in December 2010. The Board found that petitioner
prescribed controlled substances for one of his employees, identified as J.S., who was not
petitioner’s patient and for whom no records existed. The Board further found that petitioner
prescribed a controlled substance for A.H. on October 28, 2009, and for D.W. on October 31,
2009, but that neither A.H. nor D.W. were petitioner’s patient.
The Board concluded that petitioner “failed to keep adequate records on many of his
patients including, but not limited to, patient histories, examination and test results, and office
visits. Specifically, by failing to maintain medical records for individuals identified as A.H.,
D.W. and J.S. while issuing prescriptions for controlled substances to these individuals,”
petitioner violated 24 C.S.R. § 1-18.1.21 (2001).14
The Board may deny an application for a license, place a licensee on
probation, suspend a license, limit or restrict a license or revoke any license
issued by the Board, upon satisfactory proof that the licensee has:
Delegated professional responsibilities to a person whom the licensee
knew or had reason to know is not qualified by training, experience or licensure to
perform the responsibilities[.]
13
24 C.S.R. § 1-18.1.29 (2001) states:
The Board may deny an application for a license, place a licensee on
probation, suspend a license, limit or restrict a license or revoke any license
issued by the Board, upon satisfactory proof that the licensee has:
Presigned blank prescription forms[.]
14
24 C.S.R. § 1-18.1.21 (2001) states:
(continued . . .)
8
False Statements on Licensure Application
The Board found that when petitioner applied for osteopathic licensure in West Virginia,
in connection with information regarding an applicant’s education, the application asked: “Have
you ever been dropped, suspended, placed on probation, expelled or requested to resign from any
school, college or university?” Upon answering the question in the negative, petitioner failed to
report that he had, in fact, attended the Des Moines Medical School for one year and was asked
to leave.15
The Board concluded that by failing to disclose that he attended and then left an
osteopathic medical program and answering in the negative on his licensure application in
connection therewith, petitioner “engaged in misrepresentation, falsehood, and deceit in
procuring admission to practice in this state,” in violation of West Virginia Code § 30-14
11(a)(4)16 and 24 C.S.R. § 1-18.1.1 (2001) 17
The Board may deny an application for a license, place a licensee on
probation, suspend a license, limit or restrict a license or revoke any license
issued by the Board, upon satisfactory proof that the licensee has:
Failed to keep written records justifying the course of treatment of the
patient, including, but not limited to, patient histories, examination results and test
results and treatment rendered, if any[.]
15
Petitioner transferred to another osteopathic medical school and graduated.
16
West Virginia Code § 30-14-11(a)(4) provides:
(a) The board may either refuse to issue or may suspend or revoke any license for
any one or more of the following causes:
(4) Fraud, misrepresentation or deceit in procuring or attempting to procure
admission to practice[.]
17
24 C.S.R §1-18.1.1 (2001) states:
The Board may deny an application for a license, place a licensee on
probation, suspend a license, limit or restrict a license or revoke any license
issued by the Board, upon satisfactory proof that the licensee has:
Knowingly made, or presented or caused to be made or presented, any
false, fraudulent or forged statement, writing certificate, diploma or other material
in connection with an application for a license.
9
Re-dispensing of Medications
Dr. Wendi Lundquist, who was previously employed by petitioner, filed a formal
complaint with the Board against petitioner, alleging, in part, that petitioner stored and re-
dispensed fentanyl patches and OxyContin. She claimed that, in 2005, while employed by
petitioner, he advised her that it was a physician’s duty to re-dispense returned medications to
patients who could not afford them. In his response to the 2005 complaint, petitioner admitted
accepting medications from patients who no longer took them, but claimed that he later
destroyed them. He asserted that Dr. Lundquist may have seen these pills in a cabinet where he
stored them away from patients until they could be destroyed. He denied re-dispensing these
medications to other patients. The Board found that from 2005-2010, petitioner routinely
accepted unused medications, including controlled substances, from patients and stored them,
unsecured, for undetermined periods of time. The Board further found that petitioner “did re-
dispense these medications to other patients and himself. After Dr. Weixler [his former partner]
left [the practice], [petitioner] routinely took medications to his home.”
The Board concluded that petitioner violated 24 C.S.R. § 1-18.1.5 “by making a false
statement to the Board . . . regarding [petitioner’s] habit and method of securing and/or disposing
of controlled substances and re-dispensing controlled substances to patients.” The Board further
concluded that petitioner violated 24 C.S.R. § 1-18.1.10 “by knowingly retaining prescription
controlled substances returned to him by patients and by knowingly diverting such controlled
substances for [his] own use[.]”
Standard of Review
This Court has established the following guidelines to be followed by circuit courts in
reviewing decisions of administrative agencies such as the West Virginia Board of Osteopathic
Medicine:
“‘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).”
Syl., Berlow v. W.Va. Bd. of Med., 193 W.Va. 666, 458 S.E.2d 469 (1995).
10
We further explained in Modi v. West Virginia Bd. of Med., 195 W.Va. 230, 239, 465
S.E.2d 230, 239 (1995) that
findings of fact made by an administrative agency will not be disturbed on appeal
unless such findings are contrary to the evidence or based on a mistake of law. In
other words, the findings must be clearly wrong to warrant judicial interference. .
. . Accordingly, absent a mistake of law, findings of fact by an administrative
agency supported by substantial evidence should not be disturbed on appeal.
Id. at 239, 465 S.E.2d at 239 (citations omitted). See also Martin v. Randolph Cnty. Bd. of Educ.,
195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995) (explaining that “[w]e must uphold any of the
[administrative agency’s] factual findings that are supported by substantial evidence, and we owe
substantial deference to inferences drawn from these facts”). Thus, “this Court reviews the
decision[] of the circuit court under the same standard of judicial review that the lower court was
required to apply to the decision of the administrative agency.” Webb v. W.Va. Bd. of Med., 212
W.Va. 149, 155, 569 S.E.2d 225, 231 (2002).
We first address petitioner’s argument that the Board’s decision to revoke his license to
practice osteopathic medicine and surgery was against the manifest weight of the evidence.
Petitioner argues that, with regard to his treatment of Patients 1 through 8, and Patients 10 and
11, he presented expert testimony that indicated that his actions were appropriate and within the
applicable standard of care. Petitioner contends that his expert, Dr. John Hart, also opined that
there was nothing petitioner could have done to have prevented the deaths of Patients 1 through
7.
With regard to Patient 1, petitioner specifically argues that Patient 1 was known to steal
medications and medical equipment from previous employers and hospitals and that, as a nurse
anesthetist in his employ, she had legitimate access to the locked drug safe in his office.
As for Patient 2, petitioner argues that the post-mortem drug screen of this patient
revealed that psychiatric medications not prescribed by petitioner were present at levels of more
than 100 times the legal level and that the pain medicine petitioner prescribed for her was present
at a level that could only cause respiratory depression.
With regard to Patient 3, petitioner argues that his expert, Dr. Hart, testified that the
patient’s death was caused by a heroin overdose “without any medications prescribed by”
petitioner and that the Board could have reviewed the patient’s medical records after they were
returned to the Drug Enforcement Administration (“DEA”).18
As for Patient 4, petitioner argues that, according to Dr. Hart’s expert testimony, closer
monitoring of Patient 4 would not have shown that he was diverting his prescribed medication,
18
We note that petitioner does not aver that a review of Patient 3’s medical records
would have rebutted the Board’s finding that petitioner failed to adequately monitor Patient 3’s
use of controlled substances prescribed by petitioner.
11
as found by the Board. Dr. Hart further opined that petitioner prescribed controlled substances
for this patient in conservative amounts.
With regard to Patient 5, petitioner argues that although petitioner increased the patient’s
methadone prescription, other prescription medications were discontinued altogether, thus
resulting in “a lower equivalent dose than the patient had been taking upon arrival into the
practice.” Petitioner argues that the documentary evidence showed that, contrary to the Board’s
findings, Patient 5’s initial paperwork showed that he was current with certain medications, as
evidenced by the post-mortem drug screen, which indicated that there was a measurable amount
of his previous medication in his system at the time of his death even though petitioner “had
clearly discontinued the previous medicines.” Petitioner also disputes the finding that he caused
Patient 5’s death. To the contrary, petitioner argues that Patient 5’s death was caused by his
mother’s “withholding [of] critical doses of other medication that would have prevented seizure
and/or cardiac electrical rhythm disturbances.”
With regard to Patients 6 and 7, petitioner argues that Dr. Hart opined that these patients
snorted their medications and that petitioner could not have predicted or prevented these patients
from misusing their medications in this way. Petitioner argues that Patient 6 had not previously
strayed from his history of complying with petitioner’s medical directions.
With regard to Patient 8, petitioner argues that he co-treated this patient, an osteopathic
physician, with the Kentucky Board of Medical Licensure and that, if petitioner violated the
standard of care regarding the monitoring of Patient 8, then so did the Kentucky Board.
Furthermore, petitioner argues that the Board could have reviewed Patient 8’s records that were
seized and then returned by the DEA.19
As for Patient 10, petitioner denies that he had a “romantic” relationship with her but,
instead, avers that he had only a one-time sexual encounter with her. He further denies that
Patient 10 was under his care at the time the sexual encounter occurred. Petitioner admitted that
Patient 10 stayed in his home for several weeks, testifying that she did so in order to act as his
caregiver after he sustained a spinal cord injury following a plane crash. Furthermore, petitioner
denied that he injected Patient 10 with controlled substances because “[n]arcotic injections are
simply not part of [his] practice.”
With regard to Patient 11, petitioner denies that he had a romantic relationship with her
and argues that drug screens and pill counts were not indicated for her.
Petitioner also argues that, with regard to the medications prescribed for other patients
that were found in his luggage during the airport incident, he took these medications—which had
been returned to him by patients—to Florida because he did not feel that they could be safely
stored at his office. He argues that he intended to incinerate the medications at his home upon his
19
We note that, as with his argument regarding Patient 3, petitioner does not aver that a
review of Patient 8’s records by the Board would have revealed that petitioner adequately
monitored this patient’s progress and use of controlled substances.
12
return to West Virginia. Petitioner avers that no charges were ever filed by the DEA in
connection with this incident.
With regard to the pre-signed prescription pads, petitioner denies that he pre-signed
prescriptions on a routine basis but, instead, claims that physicians who covered for him would
issue “routine prescription refills” for patients in his absence. Petitioner admits that he pre-signed
a few emergency prescriptions that he kept locked-up and that, when contacted by his nurse
practitioner, he would approve the prescription by telephone. Petitioner contends that, at the
time, this was common practice and that there were no rules prohibiting the pre-signing of
prescription forms.
With regard to his alleged failure to maintain patient records, petitioner argues that the
DEA had possession of his older, paper records and that these records were later made available
to the Board. Petitioner contends that he should not be held responsible for the unavailability of
records that were not in his possession when the Board’s subpoena was issued. Petitioner further
argues that his office maintained records for A.H., D.W., and J.S. in a separate, secured location
because J.S. was his employee, and A.H. and D.W. were the parents of Patient 1, who had also
been employed by petitioner. Petitioner avers that these records were either “removed” or
“stolen” when two of his employees left employment.
With regard to the false statements made by petitioner on his licensure application,
petitioner argues that, it is undisputed that his former wife, Dr. Weixler, completed the
application on his behalf and that he never saw it. He further contends that he voluntarily
transferred from the first medical school due to an “adversarial relationship” that had developed
between his brother and the “Optometry Association.” He avers that no false statements were
made on the licensure application.
Finally, with regard to the re-dispensing of medications, petitioner argues that Dr.
Lundquist, a disgruntled former employee, had previously filed a complaint with the Board and
that the Board summarily dismissed her claims. He further disputes the finding that he used
medications returned to him by patients. Petitioner points to a year-long drug screening process
to which he submitted himself “prior to the Board allegations and DEA investigation” and the
drug test he was given in the emergency room after his plane crash. He avers that he tested
negative each time.20
Having carefully considered petitioner’s arguments and the record below, we find the
Board’s findings and conclusions as set forth above to be well-supported by the evidence
presented at the suspension and revocation hearings.21 As a reviewing court, we are “obligated to
20
Petitioner admits that he transported medications from his office to the “substantial
safe” located on his farm and claims that he eventually incinerated the medications at the farm.
21
Following a hearing on the admissibility of the suspension record, the hearing
examiner for the revocation hearing ruled that the suspension hearing transcript and exhibits
(continued . . .)
13
give deference to factual findings rendered by an administrative law judge[;]” thus, like the
circuit court, we are “not permitted to substitute [our] judgment for that of the hearing examiner
with regard to factual determinations.” Syl. Pt. 1, in part, Cahill v. Mercer Cnty. Bd. of Educ.,
208 W.Va. 177, 539 S.E.2d 437 (2000). Furthermore “[w]e must uphold any of the
[administrative agency’s] factual findings that are supported by substantial evidence, and we owe
substantial deference to inferences drawn from these facts[.]” Webb, 212 W.Va. at 155, 569
S.E.2d 231.
It is clear that a majority of petitioner’s arguments—that the Board’s findings of fact are
against the manifest weight of the evidence—are based upon the implication that his evidence
was more credible and should carry greater weight than the Board’s. However, this Court has
made clear that “[c]redibility determinations are properly made by the trier of fact, in this case
the administrative law judge, who has had the opportunity to observe, first hand, the demeanor of
the witness. Miller v. Chenoweth, 229 W.Va. 114, 121, 727 S.E.2d 658, 665 (2012). See also
Webb, 212 W.Va. at 156, 569 S.E.2d at 232 (stating that “credibility determinations by the finder
of fact in an administrative proceeding are ‘binding unless patently without basis in the record.’
Martin v. Randolph County Bd. of Educ., 195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995).”);
Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997) (observing that
“[a] reviewing court cannot assess witness credibility through a record.”). Upon careful review
of the record before us, we find that petitioner has failed to demonstrate that the Board’s findings
were clearly wrong or otherwise contrary to the evidence.
Next, petitioner argues that the Board erred in admitting the testimony of one of its
experts, Dr. Jason Pope, a multi-disciplinary pain physician. More specifically, petitioner argues
that Dr. Pope was not qualified to testify with regard to the relevant standard of care because the
events herein transpired prior to Dr. Pope’s practice in the field of pain management and, further,
Dr. Pope admitted that he had failed to do any research on the standard of care in place during
that time.
Specifically, petitioner argues that Dr. Pope’s qualifications do not comport with the
criteria set forth in the Medical Professional Liability Act (“MPLA”), which provides that “there
shall be a rebuttable presumption that the witness is qualified as an expert” only if the foundation
for his or her testimony is laid as set forth by the six statutory criteria, and if the witness
“devoted, at the time of the medical injury, sixty percent of his or her professional time annually
to the active clinical practice in his or her medical field or specialty . . . .” W.Va. Code § 55-7B
7(a), in relevant part.22 (Emphasis added).
would be admitted in the revocation proceedings and that the parties could supplement or
highlight information as needed.
22
West Virginia Code § 55-7B-7(a) states as follows:
The applicable standard of care and a defendant’s failure to meet the
standard of care, if at issue, shall be established in medical professional liability
cases by the plaintiff by testimony of one or more knowledgeable, competent
(continued . . .)
14
It is petitioner’s contention that Dr. Pope should not have been qualified to testify as an
expert in this case because he was not practicing in the field of pain management at the time
some of the events herein occurred (e.g., Patient 2 died in 2004).23
Assuming, arguendo, that West Virginia Code § 55-7B-7(a) applies to the administrative
disciplinary proceeding now at issue, we find petitioner’s argument to be without merit. Rule 702
of the West Virginia Rules of Evidence, Testimony by Expert Witnesses, states, in pertinent part,
as follows:
(a) If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education
may testify thereto in the form of an opinion or otherwise.
With regard to Rule 702, we have stated that, “to qualify a witness as an expert on th[e]
standard of care, the party offering the witness must establish that the witness has more than a
casual familiarity with the standard of care and treatment commonly practiced by physicians
engaged in the defendant’s specialty . . . .” Mayhorn v. Logan Med. Found., 193 W.Va. 42, 49
expert witnesses if required by the court. A proposed expert witness may only be
found competent to testify if the foundation for his or her testimony is first laid
establishing that: (1) The opinion is actually held by the expert witness; (2) the
opinion can be testified to with reasonable medical probability; (3) the expert
witness possesses professional knowledge and expertise coupled with knowledge
of the applicable standard of care to which his or her expert opinion testimony is
addressed; (4) the expert witness’s opinion is grounded on scientifically valid
peer-reviewed studies if available; (5) the expert witness maintains a current
license to practice medicine with the appropriate licensing authority of any state
of the United States: Provided, That the expert witness’s license has not been
revoked or suspended in the past year in any state; and (6) the expert witness is
engaged or qualified in a medical field in which the practitioner has experience
and/or training in diagnosing or treating injuries or conditions similar to those of
the patient. If the witness meets all of these qualifications and devoted, at the time
of the medical injury, sixty percent of his or her professional time annually to the
active clinical practice in his or her medical field or specialty, or to teaching in his
or her medical field or specialty in an accredited university, there shall be a
rebuttable presumption that the witness is qualified as an expert. The parties shall
have the opportunity to impeach any witness’s qualifications as an expert.
Financial records of an expert witness are not discoverable or relevant to prove
the amount of time the expert witness spends in active practice or teaching in his
or her medical field unless good cause can be shown to the court.
23
On appeal, petitioner does not argue that Dr. Pope failed to satisfy the six enumerated
criteria set forth in West Virginia Code § 55-7B-7(a).
15
50, 454 S.E.2d 87, 94-95 (1994). Thus, there is a two-step inquiry in determining who qualifies
as an expert: First, the tribunal “must determine whether the proposed expert (a) meets the
minimal educational or experiential qualifications (b) in a field that is relevant to the subject
under investigation (c) which will assist the trier of fact.” Second, the tribunal “must determine
that the expert’s area of expertise covers the particular opinion as to which the expert seeks to
testify.” Syl. Pt. 5, in part, Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995).
Importantly, this Court has stated that Rule 702 “provides the test for determining
whether an expert’s testimony is admissible[,]” Mayhorn, 193 W.Va. at 46, 454 S.E.2d at 91, and
“does not provide that the legislature may outline when a witness should be found to be qualified
as an expert.” Id. at 49, 454 S.E.2d at 94. Thus, in syllabus point six of Mayhorn, we held that
Rule 702 of the West Virginia Rules of Evidence is the paramount authority for
determining whether or not an expert is qualified to give an opinion. Therefore, to
the extent that Gilman v. Choi, 185 W.Va. 177, 406 S.E.2d 200 (1990) indicates
that the legislature may by statute determine when an expert is qualified to state
an opinion, it is overruled.
Mayhorn, 193 W.Va. at 44, 454 S.E.2d at 89. See Id. at 49, 454 S.E.2d at 94 (stating that “[t]his
Court has complete authority to determine an expert’s qualifications pursuant to its constitutional
rule-making authority.”); Syl. Pt. 7, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994)
(holding that “[t]he West Virginia Rules of Evidence remain the paramount authority in
determining the admissibility of evidence in circuit courts. These rules constitute more than mere
refinement of common law evidentiary rules, they are a comprehensive reformulation of them.”).
Thus, “[w]e . . . must look to Rule 702, and not W.Va.Code, 55–7B–7 [1986], to determine
whether [the proposed expert] was qualified to give an opinion.” Dolen v. St. Mary's Hosp. of
Huntington, Inc., 203 W.Va. 181, 186, 506 S.E.2d 624, 629 (1998).
Furthermore, “‘[t]he admissibility of testimony by an expert witness is a matter within the
sound discretion of the trial court, and the trial court’s decision will not be reversed unless it is
clearly wrong.’ Syl. pt. 6, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700
(1991).” Mayhorn, 193 W.Va. at 43, 454 S.E.2d at 88, syl. pt. 1.
In the present matter, the Board found Dr. Pope to be qualified to testify as an expert
regarding the standard of care in the field of pain management. The evidence revealed that,
following Dr. Pope’s graduation from medical school in 2004, he completed a residency in
anesthesiology in 2008 and, during his third year of residency, he began training in interventional
and pain management. He became an American Board of Anesthesiology Diplomat of Pain
Medicine in October of 2010. Between 2008 and 2009, Dr. Pope worked in interventional pain
management in a Veteran’s Administration hospital and completed a fellowship in pain
management at the Cleveland Clinic in 2010; during that time, he was pain management
associate staff at the Cleveland Clinic’s Anesthesia Institute. From January 2011 through August
2012, Dr. Pope worked as a physician and the Director of the Headache Center in California and,
at the time of the Board’s decision herein, was the Medical Director at the Center for Pain Relief
in Charleston and Teays Valley, West Virginia. Based upon all of the above, we find no error in
16
the Board’s ruling that Dr. Pope was qualified to provide expert testimony as to the standard of
care in the field of pain management.24
In his next assignment of error, petitioner argues that the Board was “improperly
convened” and “without authority” to take action on petitioner’s license. West Virginia Code §
30-14-3 provides, in relevant part, that
(a) The West Virginia Board of Osteopathy is continued and effective July 1,
2012 shall be known as the West Virginia Board of Osteopathic Medicine. The
members of the board shall continue to serve until a successor is appointed and
may be reappointed.
(b) The Governor shall appoint, by and with advice and consent of the Senate, two
additional members and stagger their initial terms:
(1) One person who is a licensed osteopathic physician or surgeon; and
(2) One person who is a licensed osteopathic physician assistant.
(c) The board consists of the following seven members, who are appointed to
staggered terms by the Governor with the advice and consent of the Senate:
(1) Four licensed osteopathic physicians and surgeons;
(2) One licensed osteopathic physician assistant; and
(3) Two citizen members, who are not associated with the practice of osteopathic
medicine.
Without any citation to the record, supporting facts, or assertion that this assignment of
error was raised before the circuit court, petitioner argues simply that, at all times relevant “the
board had 3 Osteopathics not 4, had 2 lay members and no Physician’s assistant, [sic] for those
reasons the board is improperly convened and without authority to take action in this matter.”
For its part, the Board states that, before July 1, 2012, the Board was comprised of five
members—three members were osteopathic physicians and two members were citizens who
were not associated with the practice of osteopathic medicine. According to the Board, after July
1, 2012, the five members continued to serve the remainder of their terms and, on January 1,
24
Petitioner also assigns as error the Board’s refusal to admit the testimony of expert Dr.
Thomas Gilligan on the applicable standard of care “when not only had he practiced in the field
but had at the time of the events alleged he was on the Board of Osteopathic Medicine in charge
of reviewing complaints made against osteopathic physicians.” Petitioner’s assertion fails to
include any substantive argument, supporting facts, or citation to the record. As we stated in
State, Dept. of Health v. Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995),
“‘[a] skeletal “argument,” really nothing more than an assertion, does not preserve a claim. . . .
Judges are not like pigs, hunting for truffles buried in briefs.’” (quoting United States v. Dunkel,
927 F.2d 955, 956 (7th Cir.1991)). See State v. Lilly, 194 W.Va. 595, 605 n.16, 461 S.E.2d 101,
111 n.16 (1995) (noting that “appellate courts frequently refuse to address issues that appellants .
. . fail to develop in their brief.”). See also Ohio Cellular RSA Ltd. P’ship v. Bd. of Pub. Works of
West Virginia, 198 W.Va. 416, 424 n.11, 481 S.E.2d 722, 730 n.11 (1996) (refusing to address
issue on appeal that had not been adequately briefed). Thus, we decline to address this
assignment of error.
17
2013, Dr. Michael Muscari, D.O. was appointed to the Board while in March 2013, Heather
Jones, PA-C, was appointed. The Board avers that the Board was properly convened with all
seven members when it voted to revoke petitioner’s license to practice osteopathic medicine and
surgery.
This Court has previously declared that
“[a]n appellant must carry the burden of showing error in the judgment of
which he complains. This Court will not reverse the judgment of a trial court
unless error affirmatively appears from the record. Error will not be presumed, all
presumptions being in favor of the correctness of the judgment.” Syllabus Point 5,
Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).
Syl. Pt. 2, West Virginia Dep’t of Health & Human Res. Emp. Fed. Credit Union v. Tennant, 215
W.Va. 387, 599 S.E.2d 810 (2004). Given petitioner’s failure to present any facts in support of
his assignment of error on appeal, we conclude that he has failed to carry his burden of showing
that the Board was not properly convened during the proceedings in this case.
Next, petitioner argues that the Board should have granted his request for a neutral,
unbiased hearing officer to conduct the revocation proceedings in this case. Petitioner argues that
he offered to pay the costs associated with hiring a “retired Circuit judge or equivalent” and that
such a request was reasonable. He contends that it is inherently unfair and a violation of his right
to due process to allow the Board to prosecute this matter and to also select the hearing
examiner. We find no error.
In selecting a hearing examiner to preside over petitioner’s revocation proceeding, the
Board complied with 25 C.S.R. § 3-3.10.10, which states that “[t]he hearing may be conducted
by one or more Board members or by a hearing examiner appointed by the Board.” Petitioner
points to no supporting legal authority that would authorize his request for an alternative hearing
officer. Furthermore, petitioner fails to make a specific complaint against the hearing examiner
or otherwise point to any instance during the proceedings in which, in his view, she acted
unfairly or with bias. As previously stated, error will not be presumed but, to the contrary, “all
presumptions [will be] in favor of the correctness of the judgment.” Tennant, 215 W.Va. at 389,
599 S.E.2d at 812, syl. pt. 2, in part. Therefore, we find petitioner’s argument that he should have
been permitted to hire an “unbiased” hearing officer to be without merit.
Finally, petitioner argues that the Board exceeded its statutory authority in revoking his
license to practice osteopathic medicine and surgery in West Virginia. Petitioner contends that
West Virginia Code § 30-14-11 sets forth the reasons for which the Board may suspend or
revoke a license and that none of the stated reasons apply in this case. West Virginia Code § 30
14-11 states, in relevant part, as follows:
(a) The board may either refuse to issue or may suspend or revoke any license for any
one or more of the following causes:
(1) Conviction of a felony, as shown by a certified copy of the record of the trial
court;
(2) Conviction of a misdemeanor involving moral turpitude;
18
(3) Violation of any provision of this article regulating the practice of osteopathic
physicians and surgeons;
(4) Fraud, misrepresentation or deceit in procuring or attempting to procure
admission to practice;
(5) Gross malpractice;
(6) Advertising by means of knowingly false or deceptive statements;
(7) Advertising, practicing or attempting to practice under a name other than
one’s own;
(8) Habitual drunkenness, or habitual addiction to the use of morphine, cocaine or
other habit-forming drugs.
Petitioner argues that only the provisions regarding fraud, misrepresentation, or deceit
in procuring admission to practice; gross malpractice; or habitual addiction to habit-forming
drugs, could potentially apply in this case. Petitioner further argues that the evidence fails to
satisfy any of those grounds and, thus, the Board exceeded its authority in revoking his
osteopathic license.
First, the Court does not agree that the evidence fails to satisfy West Virginia Code §
30-14-11(a)(4), (5), or (8). At the very least, the evidence demonstrates that petitioner’s
violations of the applicable standard of care contributed to or directly resulted in the deaths of
seven patients. Moreover, petitioner does not deny that he failed to advise the Board on his
application for licensure that he attended, and then left, an osteopathic medical school after one
year. Furthermore, the reasons for the suspension or revocation of a license of an osteopathic
physician are not limited to those set forth in West Virginia Code § 30-14-11. Additional causes
for the the denial, probation, limitation, discipline, suspension, or revocation of licenses of
osteopathic physicians are set forth in 24 C.S.R. § 1-18, and, as previously and extensively
discussed herein, the Board correctly concluded that the evidence presented established that
petitioner violated various provisions of the rule, thereby warranting revocation of his
osteopathic medical license. Thus, we conclude that the Board acted well within its statutory
authority in suspending and ultimately revoking petitioner’s license to practice osteopathic
medicine and surgery in West Virginia.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: June 3, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
19