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Hasan v. West Virginia Board of Medicine

Supreme Court of Appeals of West Virginia

November 8, 2019

OMAR KHALID HASAN, M.D., Petitioner Below, Petitioner
WEST VIRGINIA BOARD OF MEDICINE, Respondent Below, Respondent

          Submitted: October 16, 2019

          Appeal from the Circuit Court of Kanawha County The Honorable Tod J. Kaufman, Judge Civil Action No. 17-AA-53

          Stuart A. McMillan Patrick C. Timony Bowles Rice LLP Charleston, West Virginia Attorneys for the Petitioner

          Greg S. Foster Jamie S. Alley Charleston, West Virginia Attorneys for the Respondent

          JUSTICE JENKINS delivered the Opinion of the Court. JUSTICE HUTCHISON concurs and reserves the right to file a concurring opinion.


         1. When the West Virginia Board of Medicine has utilized a hearing examiner to conduct disciplinary proceedings, the Board may, pursuant to W.Va. C.S.R. § 11-3-14.1. (2010), adopt, modify, or reject the recommended findings of fact and conclusions of law submitted by the hearing examiner. However, if the Board modifies or rejects the hearing examiner's recommended findings of fact, the Board must explain the rationale and evidentiary basis for such modification or rejection in a reasoned, articulate decision.

         2. Under Rule 901(a) of the West Virginia Rules of Evidence, text messages may be authenticated in numerous ways including, for example, by a witness who was a party to sending or receiving the text messages, or through circumstantial evidence showing distinctive characteristics that link the sender to the text messages.


         Doctor Omar Hasan ("Dr. Hasan"), petitioner herein, appeals a final order entered in the Circuit Court of Kanawha County on July 13, 2018, that affirmed a decision by the respondent herein, the West Virginia Board of Medicine ("the Board"), that imposed professional discipline, including a one-year suspension of his medical license with the requirement that he petition for reinstatement. Before this Court, Dr. Hasan contends that the Board erred by failing to adopt recommended findings of fact by its hearing examiner, by improperly considering the content of text messages, and by misstating various facts in its final order. Based upon our thorough consideration of this appeal, we conclude that the Board has the authority to amend findings of fact recommended by its hearing examiner so long as it provides a reasoned, articulate decision that explains the rationale for its changes. Because we find the Board provided such rationale, did not err in considering the text messages, and did not commit reversible error by misstating certain evidence, we affirm.



         Dr. Hasan, a psychiatrist, has practiced psychiatry at Raleigh Psychiatric Services, Inc., in Beckley, West Virginia, since 2007. In November 2011, Dr. Hasan began providing psychopharmacological[1] care to a patient we will identify as M.B.[2] In September 2014, M.B. filed a complaint with the Board[3] alleging that Dr. Hasan engaged in an improper sexual relationship with her; that the relationship included, among other things, texting, phone calls, gifts, and sexual encounters on numerous occasions at various locations; and that the relationship led her to attempt suicide when it was ended by Dr. Hasan. The Board investigated M.B.'s allegations.[4] At the conclusion of its investigation, the Board found probable cause to institute disciplinary proceedings against Dr. Hasan for professional misconduct.[5]

         The Board ultimately issued and served upon Dr. Hasan its Amended Complaint and Notice of Hearing. The Board's Amended Complaint set out six separate counts against Dr. Hasan: Count I charged him with exercising influence within a patient-physician relationship for the purpose of engaging a patient in sexual activity in violation of W.Va. Code § 30-3-14(c)(8) (LexisNexis 2018)[6] and W.Va. C.S.R. § 11-1A-12.1.e. (2007);[7] Count II charged him with failing to immediately terminate the physician-patient relationship when the interactions and/or communications became sexual in nature in violation of W.Va. Code § 30-3-14(c)(17), [8] and W.Va. C.S.R. §§ 11-1A-12.1.e., [9] 11-1A- 12.1.j., [10] and 11-1A-12.2.d.;[11] Count III charged him with entering into a sexual relationship with M.B. in violation of W.Va. Code § 30-3-14(c)(17), [12] and W.Va. C.S.R. §§ 11-1A-12.1.e., [13] 11-1A-12.1.j., [14] and 11-1A-12.2.d.;[15] Count IV charged him with failing to appropriately respond to M.B.'s reports of suicidal ideation in violation of W.Va. Code § 30-3-14(c)(17)[16] and W.Va. C.S.R. § 11-1A-12.1.x.;[17] Count V charged him with failing to consider the clinical significance of his out-of-office communications with M.B. in violation of W.Va. Code § 30-3-14(c)(17)[18] and W.Va. C.S.R. § 11-1A-12.1.x.;[19] and Count VI charged him with failing to properly document his out-of-office communications with M.B. in violation of W.Va. Code § 30-3-14(c)(11), [20] and W.Va. C.S.R. §§ 11-1A-12.1.u., [21] and/or 11-1A-12.1.jj.[22]

         Dr. Hasan submitted his Answer to the Amended Complaint in which he admitted to engaging in out-of-office communications with M.B., but he claimed the communications were for treatment purposes. The Board appointed a hearing examiner, and a public hearing was held from April 25, 2017, through April 28, 2017. The evidence presented at the hearing included significant details provided by M.B. regarding dates and locations where M.B. and Dr. Hasan had met and either engaged in sexual activities or discussed their ongoing affair. In addition, according to Dr. Hasan's own AT&T phone records, he and M.B. exchanged more than four thousand text messages between January 2013 and January 2014, [23] and spent more than sixteen hours engaged in phone calls. This evidence was particularly striking given that Dr. Hasan had treated M.B. with psychopharmacological care and treatment, and had not treated her with psychotherapy; thus there appeared to be no medical reason for Dr. Hasan to engage in such numerous and lengthy communications with M.B. outside of the office setting. Additionally, there were no out-of-office communications with M.B. documented by Dr. Hasan in M.B.'s medical record. Although Dr. Hasan has disputed the content of the texts, the fact that this volume of texts occurred is not disputed.[24]

         Following the hearing, the hearing examiner issued his recommended findings of fact and conclusions of law on June 13, 2017, in which he found that the Board had failed to prove by clear and convincing evidence that Dr. Hasan had committed the violations alleged in Counts I, II, III, IV, and V of its amended complaint. The hearing examiner further found that the Board did prove by clear and convincing evidence that Dr. Hasan had committed the violation alleged in Count VI, by failing to properly document his out-of-office communications with M.B. With respect to sanctions, the hearing examiner recommended that Dr. Hasan (1) be assessed a fine of $3, 000.00; (2) be ordered to pay the costs of the proceedings and of the investigation; (3) be publically reprimanded; and (4) have his license placed on probation for a period of three years during which he could practice medicine and surgery in the State of West Virginia subject to the following limitations: (a) that he enroll in and successfully complete, within ninety days and at his own expense, a course designated and approved by the Board providing no fewer than fifteen continuing medical education hours on the subject of medical records and documentation; (b) a chart review of Dr. Hasan's medical records be conducted; and (c) Dr. Hasan appear before the Board annually to discuss his practice and matters relative to these terms and conditions.

         After considering the record and the hearing examiner's recommended findings of fact, conclusions of law, and proposed discipline, the Board issued its final order on June 21, 2017. The Board modified the hearing examiner's recommendations and found that Dr. Hasan had violated Counts I, III, V, and VI of the Amended Complaint. The Board concluded that violations of Counts II and IV of the Amended Complaint had not been proven. Accordingly, the Board imposed various sanctions, which included: (1) suspending Dr. Hasan's West Virginia medical license for a period of one year, to remain in effect until lifted or otherwise modified by the Board; (2) a public reprimand; (3) completion by Dr. Hasan, at his own expense, of the Multidisciplinary Assessment & Evaluation of Professionals program at the Professional Renewal Center in Lawrence, Kansas; (4) a requirement that, before the Board will consider lifting or modifying the sanctions imposed, Dr. Hasan must make a written request that his suspension be modified and/or lifted and must provide proof that he complied with certain conditions related to his completion of the Multidisciplinary Assessment & Evaluation of Professionals program; (5) appearing before the Board or a designated committee thereof on an annual basis, or at any other time requested, to discuss his practice and matters relative to the terms and conditions of his discipline; and (6) payment by Dr. Hasan of the costs and expenses of the proceedings.

         Dr. Hasan appealed the Board's decision to the Circuit Court of Kanawha County. The circuit court affirmed the decision and this appeal followed.



         This case is presently before this Court on appeal from the circuit court's order affirming the administrative decision of the Board. Appeal to this Court from an adverse decision of the circuit court in an administrative proceeding is authorized by W.Va. Code § 29A-6-1 (LexisNexis 2018), which provides that

[a]ny party adversely affected by the final judgment of the circuit court under this chapter may seek review thereof by appeal to the Supreme Court of Appeals of this State, and jurisdiction is hereby conferred upon such court to hear and entertain such appeals upon application made therefor in the manner and within the time provided by law for civil appeals generally.

         In exercising our authority to consider an administrative appeal, "[t]his Court reviews decisions of the circuit [court] under the same standard as that by which the circuit [court] reviews the decision of the ALJ. . . . We review de novo the conclusions of law and application of law to the facts." Martin v. Randolph Cty. Bd. of Educ., 195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995). With respect to the circuit court's review, we have explained that,

"'[u]pon judicial review of a contested case under the West Virginia Administrative Procedure[s] 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."' Syl. Pt. 2, Shepherdstown Volunteer Fire Department v. Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983)." Syllabus Point 1, St. Mary's Hospital v. State Health Planning and Development Agency, 178 W.Va. 792, 364 S.E.2d 805 (1987).

Syl. pt. 1, W.Va. Health Care Cost Review Auth. v. Boone Mem'l Hosp., 196 W.Va. 326, 472 S.E.2d 411 (1996). Furthermore,

[w]e have previously concluded 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. Billings v. Civil Service Commission, 154 W.Va. 688, 178 S.E.2d 801 (1971). Accordingly, absent a mistake of law, findings of fact by an administrative agency supported by substantial evidence should not be disturbed on appeal. West Virginia Human Rights Commission v. United Transportation Union, 167 W.Va. 282, 280 S.E.2d 653 (1981); Bloss & Dillard, Inc. v. West Virginia Human Rights Commission, 183 W.Va. 702, 398 S.E.2d 528 (1990).

Modi v. W.Va. Bd. of Med., 195 W.Va. 230, 239, 465 S.E.2d 230, 239 (1995). With these standards in mind, we next consider the issues raised on appeal.



         Dr. Hasan presents the following assignments of error: (1) the Board and the circuit court acted arbitrarily and capriciously by failing to give deference to the hearing examiner's credibility determinations and factual findings; (2) the circuit court improperly considered the content of the text messages; and (3) the circuit court relied on erroneous factual determinations made by the Board.[25] These issues are addressed in turn.

         A. Credibility Determinations and Factual Findings

         Dr. Hasan first argues that the Board and the circuit court acted arbitrarily and capriciously when they failed to provide deference to the hearing examiner's credibility determinations and factual findings. Dr. Hasan contends that the Board and the circuit court should have upheld the hearing examiner's conclusions as to three specific encounters between Dr. Hasan and M.B., particularly in light of the lack of corroborating evidence to support M.B.'s allegations. The Board responds that the circuit court correctly held that the Board did not substitute its own witness credibility determinations in place of the hearing examiner, as the Board's decision to reject certain findings of the hearing examiner was based upon other evidence in the record that did not rely upon the credibility of a witness and that the hearing examiner either ignored or failed to consider. The Board notes that the hearing examiner found M.B. to be generally credible based upon his observations of her demeanor and sincerity while testifying. The Board contends that, in light of the totality of the evidence, it reasonably disagreed with the hearing examiner's perception that the lack of corroborating witnesses was fatal to M.B.'s claim.

         After reviewing the respective roles of the Board and its hearing examiner in carrying out disciplinary proceedings, we will address whether the Board's factual findings were erroneously rendered.

         1. Respective roles of the Board and its Hearing Examiner in making findings of fact.

         This Court has recognized that the West Virginia Medical Practice Act ("Medical Practice Act"), W.Va. Code §§ 30-3-1 to -18 (LexisNexis 2018), [26] "governs the procedures the Board of Medicine must follow in disciplinary proceedings." State ex rel. Hoover v. Smith, 198 W.Va. 507, 512, 482 S.E.2d 124, 129 (1997) (footnote omitted). A primary purpose of the Medical Practice Act is to provide for the professional discipline of physicians. See W.Va. Code § 30-3-2 (stating in relevant part that "[t]he purpose of this article is to provide for the licensure and professional discipline of physicians" (emphasis added)). The Legislature has placed the duty upon the Board to "be a regulatory and disciplinary body for the practice of medicine . . . ." Id. § 30-3-5 (emphasis added). See also id. § 30-3-7(a) ("The [B]oard is autonomous and, in accordance with this article, shall determine qualifications of applicants for licenses to practice medicine . . ., and shall issue licenses to qualified applicants and shall regulate the professional conduct and discipline of such individuals." (emphasis added)). In this regard, the Board "may discipline a physician . . . licensed or otherwise lawfully practicing in this state who, after a hearing, has been adjudged by the [B]oard as unqualified" due to certain reasons enumerated in the Medical Practice Act. Id. § 30-3-14(c) (emphasis added). See also id. § 30-3-14(j) ("[T]he [B]oard may enter an order imposing one or more of the following [sanctions]" (emphasis added)). Thus, in plain language, the Legislature has expressly conferred upon the Board the sole authority to adjudge a physician as unqualified and to impose consequent discipline. "'[A] statute that is clear and unambiguous will be applied and not construed.' Syl. pt. 1, in part, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968)." Syl. pt. 8, Wheeling Park Comm'n v. Dattoli, 237 W.Va. 275, 787 S.E.2d 546 (2016).

         In its exercise of this authority, the Board is authorized to "[h]old hearings and conduct investigations." W.Va. Code § 30-3-7(a)(2). See also id. § 30-3-14(c) (allowing the Board to discipline a physician adjudged unqualified "after a hearing" (emphasis added)). Moreover, the Legislature has empowered the Board to employ hearing examiners as an aid to carrying out its functions. See id. § 30-3-7(a) ("In carrying out its functions, the [B]oard may: . . . (4) Employ . . . hearing examiners . . . ."). Accordingly, the functions of conducting an evidentiary hearing may be delegated by the Board to a hearing examiner:

The President, with the approval of a majority of the Board, may appoint hearing examiners on an annual basis who shall be empowered to subpoena witnesses and documents, administer oaths and affirmations, examine witnesses under oath, rule on evidentiary questions, hold conferences for the settlement or simplification of issues by consent of the parties and otherwise conduct hearings as provided in Section 11.5 herein. . . .

          W.Va. C.S.R. § 11-3-14.1. (2010) (emphasis added).


[h]earings conducted by the Board or by a hearing examiner appointed by the Board, upon a complaint issued by the Board, are a continuance of the investigation designed to enable the Board to properly discharge its administrative functions and authority. The purpose of such hearing is to afford the respondent an opportunity, in person or by counsel or other representative, to respond to the complaint, to present his or her position, to present evidence in support of his or her contention, to examine and cross-examine evidence and witnesses produced in support of the complaint and to argue orally at the hearing.

Id. § 11-3-11.5.d. (emphasis added). Furthermore, the hearing examiner is afforded no authority to declare findings of fact or conclusions of law that are in any way final. Instead, the hearing examiner's authority extends only to proposing such findings and conclusions to the Board, who then is tasked with rendering a final determination: "[i]f a hearing examiner is appointed under this section, he or she shall make proposed findings of fact and conclusions of law." Id. § 11-3-14.1. (emphasis added). See also Berlow v. W.Va. Bd. of Med., 193 W.Va. 666, 669, 458 S.E.2d 469, 472 (1995) (recognizing that "[t]he Board, not the hearing examiner, 'shall be a regulatory and disciplinary body for the practice of medicine and surgery. . . .' W.Va. Code 30-3-5 . . . ."). By rule, the Board is afforded broad authority after receiving a hearing examiner's recommended findings of fact and conclusions of law, and "may adopt, modify or reject such findings of fact and conclusions of law." W.Va. C.S.R. § 11-3-14.1.

         There is, however, a limitation on the Board's exercise of this authority. As demonstrated by the following cases, when modifying the findings and conclusions of its appointed hearing examiner, the Board must present a "reasoned, articulate decision." Berlow, 193 W.Va. at 670, 458 S.E.2d at 473 (quotations and citation omitted).[27] Cf. Syl. pt. 6, White v. Miller, 228 W.Va. 797, 724 S.E.2d 768 (2012) ("'Where there is a direct conflict in the critical evidence upon which an agency proposes to act, the agency may not select one version of the evidence over the conflicting version unless the conflict is resolved by a reasoned and articulate decision, weighing and explaining the choices made and rendering its decision capable of review by an appellate court.' Syl. pt. 6, Muscatell v. Cline, Comm'r, 196 W.Va. 588, 474 S.E.2d 518 (1996)." (emphasis added)).

         In Berlow, this Court considered whether the Board was required to adopt a sanction that had been recommended by the hearing examiner. In analyzing the issue, the Berlow Court observed generally that, "[a]lthough the Board is not required to accept automatically the recommendations of a hearing examiner, the Board must present 'a reasoned, articulate decision.'" Berlow, 193 W.Va. at 670, 458 S.E.2d at 473 (quoting Citizens Bank of Weirton v. W.Va. Bd. of Banking & Fin. Insts., 160 W.Va. 220');">160 W.Va. 220');">160 W.Va. 220');">160 W.Va. 220, 230, 233 S.E.2d 719, 726 (1977)). The Court in Berlow upheld the Board's decision to impose its own sanction in lieu of adopting the sanction that had been recommended by the hearing examiner, because "the Board provided an understandable justification for modifying the Hearing Examiner's recommended sanction." Berlow, 193 W.Va. at 670, 458 S.E.2d at 473.

         Shortly after the Court announced its decision in Berlow, it again addressed the authority of the Board to reject a recommendation made by a hearing examiner in Modi v. West Virginia Board of Medicine, 195 W.Va. 230, 465 S.E.2d 230. Modi addressed, in part, evidentiary findings made by the Board upon its rejection of certain conclusions of law made by its hearing examiner. The Court in Modi found the Board's decision lacked proper reasoning and articulation, and observed that,

the Board order, cobbled together by the expedient of additions to and excisions from the hearing examiner's report, is barely intelligible, if at all. . . .
Likewise, we are unable to discern from the Board order "a reasoned, articulate decision which sets forth the underlying evidentiary facts which lead the agency to its conclusion", as is required by syllabus point 2 of Citizens Bank of Weirton v. West Virginia Board of Banking and Financial Institutions, [160 W.Va. 220');">160 W.Va. 220');">160 W.Va. 220');">160 W.Va. 220, 233 S.E.2d 719 (1977)].

Modi, 195 W.Va. at 240, 465 S.E.2d at 240.[28] The Court ultimately held,

[w]here an administrative agency has conducted a contested hearing through a hearing examiner and determines that it should amend the findings of fact or conclusions of law recommended by the hearing examiner, a reasoned, articulate statement of the reasons for the amended findings of fact or conclusions of law adopted by the agency is essential to the validity of those findings or conclusions and to their ready acceptance by reviewing courts. Such is particularly the case where the agency is making its decision based on economic or scientific data within the presumed expertise of the agency or where the agency has not heard or received the underlying evidence from which it is drawing conclusions different from those of the hearing examiner.

         Syl. pt. 5, id.

         Other jurisdictions similarly allow an administrative agency to alter or reject a hearing examiner's findings of fact when such alteration or rejection is justified. See Blaine Cty. v. Stricker, 394 P.3d 159, 165 (Mont. 2017) (explaining that, under the Montana Administrative Procedures Act, "an agency may reject a hearing officer's findings of fact only if, upon review of the complete record, the agency first determines that the findings were not based upon competent substantial evidence" (internal quotations and citation omitted)); Cavanaugh v. Fayette Cty. Zoning Hearing Bd., 700 A.2d 1353, 1355-56 (Pa. Commw. Ct. 1997) ("While a fact finder's observation of the demeanor of a witness has traditionally been viewed as an important factor in determining credibility, administrative adjudicators are permitted to determine the credibility of testimony from the reading of a transcript. . . . Administrative agencies often use a system of adjudication where a hearing examiner or presiding officer takes evidence and the ultimate fact finder is a board or commission, which has the power to make findings of fact based solely on a review of the record. . . . An adjudicative method where the ultimate decision in a case is made by an administrative fact finder who did not hear the testimony does not deny a litigant due process of law." (footnote and internal citations omitted)); Robinson v. Williams, No. 03-13-00244-CV, 2015 WL 3654652, at *6 (Tex. App. June 11, 2015) (observing that Tex. Educ. Code ยง 21.259(c) "provides that the board may 'reject or change a finding of fact made by the hearing examiner only after reviewing the record of the proceedings ...

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