Current through Register Vol. XLI, No. 25, June 21, 2024
Section 24-6-5 - Disposition of Reports and Complaints5.1. Any person, medical peer review committee, firm, corporation, member of the Board, or public officer may make a complaint to the Board which charges an osteopathic physician, osteopathic physician assistant, trainee, or applicant with a violation of W. Va. Code '30-14-1 et seq. or of the rules of the Board. The Board will provide a form for that purpose, but a complaint may be filed in any written form. In addition to describing the alleged violation which prompted the complaint, the complaint should contain the following: 5.1.1. The name and address of the individual(s), against whom the complaint is lodged;5.1.3. The name(s) of any person(s) who may have treated the patient after the alleged incident; and,5.1.4. The name of any health care institution in which the patient was an inpatient or outpatient after or during the alleged incident.5.1.5. A signed medical records release authorization form that has been notarized and signed by the patient, power of attorney, or legal guardian of the patient when appropriate.5.2. Reports submitted by a medical peer review committee, a physician, the chief executive officer of a hospital, a professional society, an insurer or any other person, in compliance with the provisions or W. Va. Code '30-3-14(b) may result in the initiation of its own complaint by the board. 5.2.1. The Board shall prepare and mail copies of this section ('24-6-5) to the State Osteopathic Society, State District Academies, West Virginia School of Osteopathic Medicine, and each hospital in the state of West Virginia.5.2.2. The Board may prepare forms for filing required reports and make them available upon request.5.2.3. Any information regarding a complaint may be sent by the Board to the licensee concerned for his or her written comment and he or she shall submit a written reply within twenty (20) days, or waive the right to do so.5.2.4. Any requests for comment sent to licensees shall be considered properly served when sent to their last known address. It is the licensee=s responsibility to keep the Board informed of his or her appropriate current address.5.2.5. Any individual or any medical entity having reason to believe that the conduct of a licensee amounts to professional malpractice or professional incompetence shall be encouraged to report the information to the Board.5.2.6. The chief executive officer of every hospital shall within sixty (60) days after the completion of the hospital's formal disciplinary procedure, and also after the commencement of and again after the conclusion of any resulting legal action, report in writing to the Board the name of any osteopathic licensee member of the medical staff 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 the action. The chief executive officer shall also report within sixty (60) days after the action is taken any other formal disciplinary action taken against any licensee 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. This does not apply to any temporary suspension for failure to maintain records on a timely basis or for failure to attend staff or section meetings.5.2.7. Any professional society in this State comprised primarily of physicians or physician assistants, which takes formal disciplinary action against a member relating to professional ethics, professional incompetence, professional malpractice, moral turpitude or drug or alcohol abuse, shall, within sixty (60) days of a final decision, report in writing to the Board the name of the member, together with all pertinent information relating to such action.5.2.8. Every insurer providing professional liability insurance to a licensee in this State shall submit to the Board the following information within thirty (30) days from any judgment, dismissal or settlement of a civil action 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 within the knowledge of the insurer as the Board requires. The Board shall mail a copy of this section to every known insurer in the state which has sold or may hereafter sell, professional liability insurance to any licensee licensed in this State.5.2.9. Within thirty (30) days after the conviction of a person known to be a licensee licensed or otherwise lawfully practicing in this State, or applying to be licensed, 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 the licensee or applicant, the nature of the offense committed and the final judgment and sentence of the court. The Board shall mail a copy of this section to every circuit clerk in the state.5.2.10. Information received by the Board under the provisions of W. Va. Code '30-3-14(c) and this subsection may be used by the Board in its determination as to whether to deny an application for a license or to initiate disciplinary action against a physician licensed in this State, and the information may be submitted into evidence notwithstanding its prior use in any administrative civil or criminal hearing involving the applicant or licensee.5.3. All communications with the Board charging a licensee with violations 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.5.4. The Board shall maintain a complaint log which records the receipt of each complaint, its nature and its disposition.5.5. An individual making a complaint should receive one of the following acknowledgments:5.5.1. That the matter will be reviewed by the Board;5.5.2. 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; or5.5.3. That more information will be required in order to adequately review the individual complaint.5.6. The Board shall maintain a separate investigative or complaint folder on each case reviewed, and each folder shall have a case number assigned to it.5.7. After receipt and review of a complaint, unless the complaint is determined to fall within the provisions of Section 5.5.2 of this rule the Board 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 review of complaints and any view or investigation thereof may, at the discretion of the Board, be assigned to a committee of the Board.5.8. 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 practice and may be founded on any violation enumerated in W. Va. Code '30-3-14(c) or subsections 6.1 or 6.2 of this rule.5.9. The Board may issue subpoenas and subpoena duces tecum as required to complete its investigation and may utilize an investigator(s) to conduct whatever investigations are necessary to determine the truth and validity, or lack thereof, of complaints. In the event the Board initiates its own complaint, it may utilize subpoenas, subpoenas duces tecum and its investigators as it determines necessary to gather facts and evidence. 5.10. To facilitate disposition of a complaint, the Board may request any person to attend an informal conference, or to appear at a regular meeting of the Board, at any time prior to the commencement of an adjudicatory proceeding. The Board or 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.5.11. If the Board or committee determines that a complaint complies substantially with subsection 5.8 of this rule and that it relates to matters set forth in W. Va. Code '30-3-14(c) or subsections 6.1 or 6.2 of this rule, it may request that the individual complained of (hereinafter referred to as the "Respondent") respond to the complaint within thirty (30) days. The Board or committee shall attach a copy of the complaint to the order for response or shall describe the acts alleged in the complaint. A respondent may answer either personally or through his or her attorney, but the answer must address the substantive allegations set forth in the complaint or order.5.12. Upon receipt of the respondent's answer or at any point in the course of investigation or inquiry into a complaint, the Board or 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 committee shall recommend to the Board to dismiss the complaint. The committee shall retain a file of all complaints and shall review this file periodically.5.13. At any point in its investigation of a complaint, the Board or complaint committee may assign the matter to one of its medical consultants for review. The report of the medical 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 consultant shall, upon request, be afforded an opportunity to have an investigation interview with the physician in question or other involved parties, a report of which shall be placed in the investigative file.5.14. If a respondent fails to answer within the thirty (30) day period or if the Board or committee determines that there is reason to believe that the acts alleged occurred and constitute a violation for which a respondent may be sanctioned by the Board, the Board or committee shall recommend that there be a finding of probable cause to believe there is a violation of the law or this rule.5.15. Upon receipt of a licensee=s or applicant=s comments in response to a complaint, the Board shall promptly send a copy of the same, including any supporting documentation, to the complainant.5.16. The Board shall review the documentation related to the complaint and shall require an adjudicatory hearing if it determines that there is probable cause to believe that acts alleged occurred and may constitute a violation of any provision of law or this rule. The Board may take such informal action as it determines a complaint warrants.5.17. The Board may suspend or refuse to renew a license 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 suspension. The Board shall render its decision within five (5) days of the conclusion of a hearing under this section.5.18. The Board shall maintain a permanent file on each physician 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, 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 thereof. 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 licensee 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 licensee and it shall be processed by the Board on the basis of staff availability, and the cost of the request shall be paid by the requesting licensee. Requests for matters relating to an ongoing investigation shall be handled at the discretion of the Board. 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), any matter in an historical file which is not involved in a proceeding for a hearing regarding the licensee concerned within two (2) years from its placement into such file may be expunged from the file at the discretion of the Board. If the investigative or complaint file is closed on the basis that the individual licensee concerned is not guilty of any misconduct or wrongdoing, the Board shall remove all matters relating to that investigation from his or her historical file.5.19. A licensee shall respond within thirty (30) days to a written communication from the Board or its 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 Board sends the communication by registered or certified mail with return receipt requested to his or her last known address. The physician shall maintain a medical record for each patient which is adequate to enable the physician to provide proper diagnosis and treatment. The physician must maintain a patient's medical record for a minimum period of three (3) years from the date of the last patient encounter and in a manner which permits the former patient or a successor licensee access to them within the terms of this rule and as set forth in W. Va. Code '16-29-1 et seq.