Sunday, November 10, 2019

Suspension Of Doctor Upheld; Court Considers Interplay Between Medical Board And Hearing Examiner Findings

Professional discipline imposed on a medical doctor was upheld by the West Virginia Supreme Court of Appeals

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.

Petitioner practiced psychiatry

In September 2014, M.B. filed a complaint with the Board 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. At the conclusion of its investigation the Board found probable cause to institute disciplinary proceedings against Dr. Hasan for professional misconduct.

He answered and denied the allegations

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,  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.

Hearing examiner findings

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.

The board

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.

The doctor appealed the board's proposed suspension. The Circuit Court affirmed the board.

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.

The court set out the roles of the hearing examiner and the board

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...

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.”

And they did

We have thoroughly examined both the hearing examiner’s recommended findings and the Board’s final order. We find that the Board provided detailed reasoning and a discussion of the evidence supporting its modifications of the hearing examiner’s recommended findings, including a discussion of some of the evidence that had not been addressed by the hearing examiner in his recommended findings. For example, the hearing examiner rejected M.B.’s assertion that the couple had met at a Microtel based upon the testimony of Dr. Hasan and supporting evidence explaining he was elsewhere at the time M.B. claimed they were together at the Microtel. However, the Board explained that close scrutiny of Dr. Hasan’s various explanations and evidence for where he purportedly was during the time M.B. claimed they were together at the Microtel actually placed him at two locations at once, which would be impossible. The Board found that this discrepancy in Dr. Hasan’s evidence bolstered M.B.’s claim. Another example is a house where, according to M.B., the couple had met on multiple occasions. M.B.’s testimony describing the house contained both accurate and inaccurate information. The hearing examiner focused on the inaccuracies in M.B.’s descriptions and concluded she had not been in the home. The Board, on the other hand, focused on the fact that M.B. had correctly related a large number of details about the house and concluded that she had, in fact, been in the home. Finally there was disputed evidence regarding whether M.B. and Dr. Hasan had met at his sleep center on a specific date. The hearing examiner found they had not, based upon testimony by an employee that she had worked that night and had seen no one. The employee’s time-sheet supported that she had worked that night during the time when Dr. Hasan and M.B. would have been there. In reaching a contrary conclusion, the Board served conflicts in the employee’s testimony. The employee stated that three employees would be present for a sleep study. She also testified that she was administering a sleep study on the night in question, but she claimed to be at the sleep center alone.

Because the Board explained the rationale and evidentiary basis for its modifications of the hearing examiner’s recommended findings of fact in a reasoned, articulate decision, the Board demonstrated its findings are supported by substantial  evidence contained in the record, and the Board’s modified findings are not arbitrary or capricious. Accordingly, we find no error.

The court rejected the petitioner's remaining objections.

Justice Hutchison concurred

In this case, the Board of Medicine’s Final Order rejected some of the hearing examiner’s findings of fact regarding witness credibility. I think that in some instances, the Board skated close to crossing the line into making its own credibility decisions based upon the cold record. However, after considering the entire record, I agree with the majority’s conclusion that the Board has adequately justified its decision with reasoned, evidence based explanations. As such, I respectfully concur.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/11/professional-discipline-imposed-on-a-medical-doctor-was-upheld-by-the-west-virginia-supreme-court-of-appeals-doctor-omar-has.html

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