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Iyer v. West Virginia Board of Medicine

Supreme Court of West Virginia

May 11, 2018

Shivkumar Lakshminarayan Iyer, Petitioner Below, Petitioner
v.
West Virginia Board of Medicine, Respondent Below, Respondent

          Kanawha County 16-AA-15

          MEMORANDUM DECISION

         Petitioner Shivkumar Lakshminarayan Iyer, by counsel Mark Hobbs, appeals the Circuit Court of Kanawha County's February 22, 2017, order that denied his appeal from a final order of Respondent West Virginia Board of Medicine ("the BOM") that revoked petitioner's license to practice medicine and surgery in West Virginia. The BOM, by counsel Greg S. Foster, filed a response in support of the circuit court's order.

         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.

         Petitioner became licensed to practice medicine in the State of West Virginia on September 9, 1996, specializing in general psychiatric care and substance abuse treatment.[1] At all times relevant, he was employed by the Logan Treatment Center in Logan, West Virginia, and then by the New Life Clinic in Oak Hill, West Virginia.

         On October 4, 2013, the BOM received an investigative report from the Office of Inspector General Division of Audits and Investigations for the Commonwealth of Kentucky Cabinet for Health and Family Services ("Kentucky report") that outlined numerous concerns regarding petitioner's practice of medicine, including reports concerning possible inappropriate prescribing by petitioner.

         On November 17, 2013, the BOM's Complaint Committee initiated a complaint to investigate the allegations contained in the Kentucky report. Several subpoenas duces tecum were issued for certain patient records and served on petitioner. As part of the investigation, on June 18, 2014, the BOM's investigator, accompanied by two members of the U.S. 119 Drug Task Force, traveled to the Logan Treatment Center to serve petitioner with a newly authorized subpoena duces tecum for certain patient records. While there, the investigator and two officers observed petitioner exit the passenger's side of a vehicle in the facility's parking lot. They further observed that petitioner swayed, stumbled, and talked in a rambling, high-pitched voice; that he wore a heavily soiled jacket and pants with multiple, white crusty stains; that he appeared unkempt; and that, while speaking with the investigator, his speech was slurred. After speaking with the investigator and accepting service of the BOM's subpoena, petitioner entered his place of employment where the evidence showed that he prescribed controlled substances for patients that day.

         On July 11, 2014, petitioner produced patient records for sixteen patients in compliance with the BOM's subpoena duces tecum. At the next meeting of the BOM's Complaint Committee on July 13, 2014, the committee determined that it would request that the full BOM authorize the issuance of an order requiring petitioner to submit to a mental and physical evaluation, including drug testing, by a physician or physicians approved by the BOM. See W.Va. Code § 30-3-14(f).

         On July 14, 2014, the BOM ordered petitioner, known to it at that time only as "Physician A, " to participate in a mental and physical examination, which was set for Thursday, July 17, 2014. Petitioner reported for drug testing on the designated date; however, at petitioner's request, the mental and physical examinations were rescheduled. Meanwhile, petitioner filed a petition for writ of prohibition in the Circuit Court of Kanawha County seeking to prohibit the BOM-ordered examinations. The petition was denied and petitioner appeared for the rescheduled mental and physical examinations.

         Petitioner was examined by Dr. Ralph Smith on the designated dates. Dr. Smith was qualified as an expert in this case in the areas of psychiatry and substance abuse medicine. According to Dr. Smith, petitioner's physical examination was normal. Dr. Smith diagnosed petitioner with social anxiety disorder, attention deficient hyperactivity disorder, and an unspecified personality disorder with avoidance features. He opined that the controlled substances that petitioner was then being prescribed by his personal physician were inappropriate[2] and that petitioner's psychiatric problems should be treated by a psychiatrist rather than with medication prescribed by a primary care provider. Notwithstanding the above, Dr. Smith did not determine, based upon his mental and physical examinations of petitioner, that petitioner is unfit to practice medicine and surgery safely.

         Thereafter, the BOM retained Dr. James Abel, an expert in the fields of psychiatry and substance abuse and addiction medicine, to review petitioner's treatment practices. After reviewing the medical records for seventeen of petitioner's patients, Dr. Abel opined that petitioner violated numerous provisions of the West Virginia Medical Practice Act and the West Virginia Board of Medicine Legislative Rules. Dr. Abel opined that petitioner deviated from the standard of care in his treatment of his psychiatric patients, citing numerous specific acts and/or omissions by petitioner.

         Dr. Abel submitted his report to the Complaint Committee on February 5, 2015. The BOM thereafter convened an emergency meeting where it was determined that for petitioner "to continue to hold an active license to practice medicine in the State of West Virginia constitutes an immediate danger to the health, welfare and safety of the public." The BOM summarily suspended petitioner's license in accordance with the provisions of West Virginia Code § 30-3-14(k) by issuing an "Order of Summary Suspension of License to Practice Medicine and Surgery with Notice of Hearing."

         The BOM set the matter for hearing within the expedited time frame set forth in West Virginia Code § 30-3-14(k). However, Petitioner requested a continuance and waived the timeline requirements of West Virginia Code § 30-3-14(k). Upon mutual agreement of the parties, the hearing was scheduled for May 7, 2015. An independent hearing examiner conducted a hearing on the full merits of the underlying complaint over five days during a two-month period.[3]

         In a recommended decision issued on December 15, 2015, the hearing examiner found that petitioner violated numerous provisions of the West Virginia Medical Practice Act, West Virginia Code §§ 30-3-1 through -17, and the West Virginia Board of Medicine Legislative Rules, 11 C.S.R. §§ 1A-1 through -13.[4] Based upon these violations, the hearing examiner determined that petitioner was unqualified to practice medicine and surgery in this state and that petitioner's continued licensing presented an immediate and continuing danger to the public. The hearing examiner thus recommended that petitioner's license to practice medicine and surgery in West Virginia be revoked.

         In a final order issued on January 11, 2016, a quorum of the BOM adopted the hearing examiner's findings, conclusions, and recommendations in their entirety. Petitioner appealed the BOM's decision to the Circuit Court of Kanawha County. By order entered February ...


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