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State ex rel. West Virginia Board of Examiners for Speech-Language Pathology and Audiology v. Lindsay

Supreme Court of West Virginia

June 15, 2018

State of West Virginia ex rel. West Virginia Board of Examiners for Speech-Language Pathology and Audiology, Respondent Below, Petitioner
Elissa G. Lindsay, Petitioner Below, Respondent

          Raleigh County 15-C-530-B


         Petitioner State of West Virginia ex rel. West Virginia Board of Examiners for Speech-Language Pathology and Audiology ("WVBESLPA"), [1] by counsel Kelli D. Talbott, appeals the May 26, 2017, order of the Circuit Court of Raleigh County reversing petitioner's final order that reprimanded Respondent Elissa G. Lindsay and ordered that her speech language pathology license be subject to one year of supervised practice. Respondent, by counsel Kyle G. Lusk, 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.

         Respondent is a licensed speech-language pathologist registered with the WVBESLPA and has actively practiced as a speech-language pathologist for more than forty years.[2] At all times relevant, respondent was the owner of, and a practitioner at, Beckley Speech Therapy. Additionally, she provided speech-language pathology services at the Beckley Veterans' Affairs Medical Center and served as a consultant, under a contract with Bowers Hospice House of Southern West Virginia, Inc., ("Bowers"), to provide speech therapy services to Bowers' patients.

         In or around 2003, Mrs. Underwood, a patient of Dr. Rhonda Guy, was diagnosed with a medical condition that affected her speech, swallowing, and ability to communicate. Nurse Johnson, a friend of Mrs. Underwood, served as Mrs. Underwood's medical power of attorney. During the progression of Mrs. Underwood's illness, Dr. Guy determined that Mrs. Underwood needed an evaluation from a speech-language pathologist who could possibly recommend treatment to improve and/or maintain Mrs. Underwood's ability to speak, swallow, and communicate. Before such an evaluation could be scheduled, Mrs. Underwood was required to submit to a barium swallow test. Based on the results of this test, completed in July of 2013, Dr. Guy determined that Mrs. Underwood could benefit from speech therapy services.

         In August of 2013, Dr. Guy referred Mrs. Underwood for an evaluation with a speech therapy group at Raleigh General Hospital. Prior to her scheduled evaluation, Mrs. Underwood became a patient at Bowers. In conjunction with her admission to Bowers, Mrs. Underwood understood that in-home services from a contracted speech therapist could be provided to her through Bowers, and that Bowers would arrange for their contracted speech therapist to contact Nurse Johnson. Accordingly, Mrs. Underwood's scheduled evaluation for speech pathology services at Raleigh General was cancelled.

         Thereafter, respondent contacted Nurse Johnson by telephone. Nurse Johnson requested that respondent evaluate Mrs. Underwood's condition and recommend treatment to improve her communication and swallowing. Nurse Johnson alleges that respondent refused to schedule Mrs. Underwood for an evaluation, as respondent claimed she did not have time, due to her busy schedule, to perform an in-home evaluation. Nurse Johnson offered to bring Mrs. Underwood to respondent's office for evaluation, but respondent maintained that she did not have an opening in her schedule. Respondent reportedly advised Nurse Johnson that there was nothing that respondent could do to help Mrs. Underwood and suggested that an evaluation for speech therapy services was futile. Nurse Johnson recalled that respondent advised her that if Mrs. Underwood was having difficulty swallowing, thickening agents could be used. Nurse Johnson further recalled that respondent advised her that if Mrs. Underwood developed a difficulty in communicating, there were computer programs and applications that could assist. Notwithstanding these recommendations, Nurse Johnson claims that respondent made no offer to refer Mrs. Underwood to another speech therapist.[3]

         Sometime thereafter, a representative associated with Raleigh General's speech therapy group contacted Nurse Johnson to inquire why Mrs. Underwood's appointment with that group had been cancelled. Nurse Johnson advised the representative of her communication with respondent and reportedly characterized the communication as a refusal to evaluate Mrs. Underwood. On February 10, 2014, this representative, believing respondent's conduct to be potentially unethical and determining that she was ethically bound to report respondent's conduct to the WVBESLPA, filed a complaint against respondent with petitioner. The complaint referenced respondent's communications with Nurse Johnson and alleged respondent's failure to treat Mrs. Underwood.[4]

         On March 20, 2014, petitioner found probable cause to initiate an investigation of respondent's actions and, on March 31, 2014, petitioner issued a formal complaint against respondent. The formal complaint alleged that respondent exhibited unprofessional conduct, provided a substandard level of care, and abandoned a patient. On April 21, 2014, respondent wrote to petitioner and formally refuted all claims. First, respondent denied that Mrs. Underwood was her patient. Respondent recalled that she specifically advised Nurse Johnson that she had no availability to accept new patients and denied telling Nurse Johnson that she could not see Mrs. Underwood for any reason other than respondent's unavailability. Because of her full caseload and patient waiting list, respondent argues that there was no establishment of a therapist-patient relationship between her and Mrs. Underwood. Second, respondent acknowledged that she was personally acquainted with Nurse Johnson and knew her to be a highly qualified nurse. Given Nurse Johnson's medical background, respondent discussed with her the possible need for Mrs. Underwood to have a pureed diet with nectar thickening liquids.[5]

         An evidentiary hearing was held before petitioner's hearing examiner on December 9, 2014.On April 10, 2015, the hearing examiner issued findings of facts and conclusions of law and recommended that the complaint against petitioner be sustained. The hearing examiner found that respondent provided substandard care to Mrs. Underwood; that respondent abandoned Mrs. Underwood as a patient; and that respondent's actions constituted unprofessional conduct. The hearing examiner noted that it does not meet the professional standard for a speech pathologist to recommend a thickening agent to a patient without an in-person evaluation. Thereafter, petitioner's board members met and adopted the hearing examiner's recommended decision. By final order, entered May 5, 2015, petitioner reprimanded respondent and ordered that she be subject to one year of supervised practice.

         Respondent appealed petitioner's final order to the Circuit Court of Raleigh County. On January 4, 2016, a hearing was held in circuit court and, by order entered May 26, 2017, the circuit court reversed and vacated petitioner's order. The court ruled that petitioner's May 5, 2015, order was improper because it was affected by error of law and was clearly wrong.

         Specifically, the circuit court found that the evidence below did not support the conclusion that Mrs. Underwood was a patient of petitioner, either by specific acceptance of her as a patient or by respondent's contract with Bowers. The court reasoned that professionals may decline to enter into a professional-client relationship and, accordingly, it must be shown that a professional agreed to the relationship. Here, respondent's purported acceptance of Mrs. Underwood as a patient was based solely upon the conflicting recollections of respondent and Nurse Johnson of their telephone conference. The court cited Nurse Johnson's testimony wherein she stated that respondent told her that she did not have time to evaluate Mrs. Underwood and, thus, could not accept her as a patient. Given this testimony, the circuit court reasoned that no therapist-patient relationship existed between respondent and Mrs. Underwood. The court was critical of petitioner's failure to introduce the contract between respondent and Bowers as an exhibit, particularly in light of petitioner's claim that the mere existence of the contract created the therapist-patient relationship between respondent and Mrs. Underwood.

         The circuit court further found that the evidence did not support petitioner's conclusion that respondent abandoned a patient within the meaning of West Virginia Code § 30-32-19(g)(13). West Virginia Code § 30-32-19(g)(13) prohibits "[a]bandoning . . . a patient . . . in need of immediate professional care without making reasonable arrangements for the continuation of care[.]" The court reasoned that the applicable statute did not require that respondent, as a practitioner who did not have a patient relationship with Mrs. Underwood, refer Mrs. Underwood to other practitioners or make arrangements for her care. The court found that in making a finding that respondent had abandoned Mrs. Underwood as a patient, the hearing examiner misapplied the law.

         The circuit court additionally ruled that the evidence did not support the conclusion that petitioner recommended any particular course of treatment for Mrs. Underwood. The court concluded that the evidence did not support petitioner's claim that respondent's alleged statement that she could do nothing to help Mrs. Underwood was a professional decision ...

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