Current through Register Vol. XLI, No. 21, May 23, 2024
Section 11-3-10 - Reports And Complaints10.1. Any person, medical peer review committee, firm, corporation, member of the Board or public officer may make a complaint to the Board which charges a physician, podiatrist, or physician assistant with a violation of the West Virginia Medical Practice Act or of the Rules of the Board. The Board shall provide a form for such purpose. In addition to describing the alleged violation which prompted the complaint, the complaint shall contain the following: 10.1.a. The name and address of the individual(s) against whom the complaint is lodged;10.1.b. The date of care;10.1.c. The name(s) of individual(s) who may have treated the patient after the alleged incident; and10.1.d. The name of any health care institution in which the patient was an inpatient or outpatient after or during the alleged incident.10.2. Reports submitted by a medical or podiatric peer review committee, a physician, a podiatrist, the chief executive officer of a hospital, a professional society, an insurer or any other person, in compliance with the provisions of W. Va. Code § 30-3-14(b) may result in the initiation of its own complaint by the Board or its complaint committee. 10.2.a. The Board may prepare forms for filing required reports and make them available upon request.10.2.b. Any individual or any medical or podiatric entity having reason to believe that the conduct of a physician, podiatrist, or physician assistant amounts to professional malpractice or professional incompetence may report such information to the Board.10.2.c. Information received by the Board under the provisions of W. Va. Code §§ 30-3-10, 30-3-14(c) and under 11CSR1A may be used by the Board or its complaint committee in its determination as to whether to deny an application for a license or to initiate disciplinary action against a physician, podiatrist or physician assistant licensed in this State, and such information may be submitted into evidence notwithstanding its prior use in any administrative, civil or criminal hearing involving such applicant physician, podiatrist, or physician assistant.10.3. All communications with the Board charging a physician, podiatrist, or physician assistant with violations of the Medical Practice Act and/or 11CSR1A or 11CSR1B are conditionally privileged and a person making a communication is privileged from liability based upon the communication unless the person makes the communication in bad faith or for a malicious reason.10.4. A complaint log shall be maintained which records the receipt of each complaint, its nature and its disposition.10.5. An individual making a complaint will receive one of the following acknowledgments: 10.5.a. That the matter will be reviewed by Board members;10.5.b. That the complaint is outside of the jurisdiction of the Board, with suggestions as to how the complainant might best obtain a resolution of his or her problem; or10.5.c. That more information will be required in order to adequately review the individual complaint.10.6. A separate investigative or complaint folder shall be maintained on each case reviewed, and each folder shall have a case number assigned to it.10.7. After receipt and review of a complaint, unless the complaint is determined to fall within the provisions of Subdivision 10.5.b of this rule, the complaint committee of the Board established by the Board under this rule shall cause to be conducted any reasonable inquiry or investigation it considers necessary to determine the truth and validity of the allegations set forth in the complaint. The complaint committee shall provide reports to the Board on the number, nature, procedure and handling of the complaints received.10.8. A complaint against an individual must allege that in his or her professional capacity he or she is acting in violation of the law, rules or good and accepted medical or podiatric practice and may be founded on any violation enumerated in W. Va. Code § 30-3-14(c) or Subsections 12.1 or 12.2 of Board rule 11CSR1A, or Subsection 10 of Board rule 11CSR1B, or any rule hereinafter promulgated by the Board.10.9. The complaint committee may request the Board to issue subpoenas and subpoenas duces tecum as required to complete its investigation and may utilize the Board investigator to conduct whatever investigations are necessary to determine the truth and validity, or lack thereof, of complaints. In the event the Board or its complaint committee initiates its own complaint, it may utilize subpoenas, subpoenas duces tecum and its investigators as it determines necessary to gather facts and evidence.10.10. To facilitate disposition of a complaint, the complaint committee may request any person to attend an informal conference, at any time prior to the commencement of an adjudicatory proceeding. The Board or complaint committee shall give fifteen (15) days' notice of the conference, which notice shall include a statement of the issues to be informally discussed. Statements made at a conference may not be introduced at any hearing on the merits without the consent of all parties to the hearing. No prejudice shall attach for failure to attend a conference pursuant to a request.10.11. If it is determined that a complaint complies substantially with subsection 10.8 of this rule and that it relates to matters set forth in W. Va. Code § 30-3-14(c) or subsections 12.1 or 12.2 of 11CSR1A, or subsection 10 of 11CSR1B, the individual complained of (hereinafter referred to as the "Respondent") may respond in writing to the complaint within thirty (30) days. A copy of the complaint shall be attached to the request for response. A respondent may respond either personally or through his or her attorney, but the response must address the substantive allegations set forth in the complaint or request.10.12. Upon receipt of the respondent's response or at any point in the course of investigation or inquiry into a complaint, the complaint committee may determine that there is not and will not be sufficient evidence to warrant further proceedings or that the complaint fails to allege misconduct for which a licensee may be sanctioned by the Board. In that event, the complaint committee shall dismiss the complaint. It is the complaint committee's responsibility to retain a file of all complaints and to review this file periodically.10.13. At any point in its investigation of a complaint, the complaint committee may assign the matter to one of its medical or podiatric consultants for review. The report of the medical or podiatric consultant shall contain a statement of the allegations, the facts, analysis of the complaint and care provided, a brief description of the records reviewed and a recommendation and finding. The medical or podiatric consultant shall, upon request, be afforded an opportunity to have an investigation interview with the physician or podiatrist in question or other involved parties, a report of which shall be placed in the investigative file.10.14. If the complaint committee determines that there is reason to believe that the acts alleged occurred and constitute a violation for which a licensee may be sanctioned by the Board, the complaint committee shall find probable cause to believe there is a violation of the law.10.15. A hearing is required if it is determined that there is probable cause to believe that acts alleged occurred and may constitute a violation of any provision of law. The complaint committee may take such action as it determines a complaint warrants.10.16. The Board may take summary action pending a hearing, if the health, safety or welfare of the public necessitates such summary action. The Board shall provide a hearing on the necessity for the summary action within fifteen (15) days after the summary action. The Board shall render its decision within five (5) days of the conclusion of a hearing under this section.10.17. W. Va. Code § 30-3-9(a) requires the Board to maintain a permanent file on each physician, podiatrist, and physician assistant, licensed or otherwise lawfully practicing in this State and of all persons applying to be licensed. This file shall include an individual historical record of each physician, podiatrist, and physician assistant, which shall include all reports and information furnished to the Board pursuant to applicable law. In the event an investigative or complaint file is opened, a record shall be made of the file. The Board shall provide a licensee written notice of the substance of any record placed in his or her historical file, and the licensee will be permitted thirty (30) days in which to file a written statement regarding the record; the statement shall always accompany that part of the record in contention. A physician, podiatrist, or physician assistant may examine his or her historical file during regular office hours of the Board or may designate his or her attorney to do so. A request for photocopies of his or her historical file may be made by a physician, podiatrist, or physician assistant and it shall be processed by the Board on the basis of staff availability. The cost of the request shall be paid by the requesting physician, podiatrist, or physician assistant. All matters in an historical file are strictly confidential, except as exempted by W. Va. Code § 30-3-9. Except for information enumerated in W. Va. Code § 30-3-9(f), the Board shall expunge any matter in an historical file which is not involved in a proceeding for a hearing regarding the physician, podiatrist, or physician assistant concerned within two (2) years from its placement into the file. If the investigative or complaint file is closed on the basis that the individual physician, podiatrist, or physician assistant concerned is not guilty of any misconduct or wrongdoing, the Board shall remove all information relating to that investigation from his or her historical file.10.18. A physician, podiatrist, or physician assistant shall respond within thirty (30) days to a written communication from the Board, the complaint committee or other designee and shall make available to the Board any relevant and authorized records with respect to an inquiry or complaint about his or her professional conduct. The thirty (30) day period commences on the date the communication is sent by registered or certified mail with return receipt requested to his or her last known address.