Rudolph L. DiTrapano, Esq.
Joshua I. Barrett, Esq.
DiTrapano & Jackson
Charleston, West Virginia
Attorneys for the Appellants
Darrell V. McGraw, Jr., Esq.
Attorney General
Claude S. Smith, III, Esq.
Assistant Attorney General
Scott E. Johnson, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellees
The Opinion of the Court was delivered PER CURIAM.
1. "Under W.Va.Code, 30-3-14(o) (1986), if the West
Virginia Board of Medicine finds that probable cause does not exist
to substantiate charges of disciplinary disqualification, the
public has a right of access to the complaint or other document
setting forth the charges, and the findings of fact and conclusions
of law supporting the dismissal." Syllabus Point 2, Daily Gazette
Co., Inc. v. W. Va. Bd. of Medicine, 177 W. Va. 316, 352 S.E.2d 66
(1986).
2. "A writ of mandamus will not issue unless three
elements coexist--(1) a clear legal right in the petitioner to the
relief sought; (2) a legal duty on the part of the respondent to do
the thing which the petitioner seeks to compel; and (3) the absence
of another adequate remedy." Syllabus Point 2, State ex rel.
Kucera v. City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969).
3. "'"Mandamus is a proper remedy to compel tribunals
and officers exercising discretionary and judicial powers to act,
when they refuse so to do, in violation of their duty, but it is
never employed to prescribe in what manner they shall act, or to
correct errors they have made." Syl. pt. 1, State ex rel. Buxton
v. O'Brien, 97 W.Va. 343, 125 S.E. 154 (1924).' Syl. pt. 2, State
ex rel. Lambert v. Cortellessi, 182 W.Va. 142, 386 S.E.2d 640
(1989). Syllabus, Ney v. West Virginia Workers' Compensation Fund,
186 W.Va. 180, 411 S.E.2d 699 (1991)." Syllabus Point 6, Lyons v.
Richardson, 189 W. Va. 157, 429 S.E.2d 44 (1993).
Per Curiam:
Janet Thompson, Kenneth Thompson and Vera Thompson
Treadway (hereinafter the Thompsons) appeal the circuit court's
dismissal of their petition for a writ of mandamus to compel the
West Virginia Board of Osteopathy to make findings of fact and
conclusions of law and to pursue disciplinary action against Allen
Gant, D.O. The Thompsons, all descendants of Modest Thompson,
deceased, complained to the Board of Osteopathy that Dr. Gant
caused Mr. Thompson's premature death by negligently administering
the drug Methotrexate. The circuit court found that the Board of
Osteopathy had discharged its non-discretionary duty when the Board
dismissed the Thompsons' complaint. Although the Board of
Osteopathy dismissed the Thompsons' complaint, the Board failed to
make findings of fact and conclusions of law as required by W. Va.
Code 30-14-12a [1986]. Because the Board of Osteopathy failed in
its non-discretionary duty, we reverse the circuit court.
On April 23, 1986, Dr. Gant began treating Mr. Thompson,
who was eighty-one years old, with a 25 mg. injection of
Methotrexate. The Thompsons allege that the Methotrexate was to
treat Mr. Thompson's osteoarthritis. According to the Physician's
Desk Reference, 40 Ed., 1986, Methotrexate is a highly toxic drug
generally used to treat cancer patients and can have the following
side effects: ulcerative stomatitis, leukopenia, nausea and
abdominal distress. The expert witness for the Thompsons, Peter Hasselbacher, M.D., a Board certified specialist in rheumatology
and internal medicine, testified that Methotrexate has never been
suggested for treating osteoarthritis, which, according Dr.
Hasselbacher, was the decedent's form of arthritis.
Dr. Gant maintains that the drug was used to treat Mr.
Thompson's rheumatoid arthritis, which he diagnosed on the basis of
Mr. Thompson's symptoms. In 1986, Dr. Gant became aware of the
benefits of Methotrexate by reading about various experimental
studies involving rheumatoid arthritis. After informing Mr.
Thompson of the possible benefits and side effects, Dr. Gant
alleges that Mr. Thompson agreed to the treatment. On April 23,
1986, Dr. Gant began treating Mr. Thompson with a 25 mg. injection
of the drug every couple of weeks until May 21, 1986, when Dr. Gant
doubled the dosage to 50 mg., which was given three times, the last
dosage given on July 28, 1986.
The Thompsons allege that the record does not corroborate
Dr. Gant's diagnosis of rheumatoid arthritis and that the drug's
dosage should not have increased in light of Mr. Thompson's adverse
drug reaction as shown by his weight loss, penile infection, low
white blood count and renal insufficiency. However, on May 21,
1986, Dr. Gant found Mr. Thompson to be free of pain and able to
walk with his walker. Believing that the drug was reducing Mr.
Thompson's joint effusion and swelling, Dr. Gant doubled the drug's
dosage.See footnote 1
1
On July 30, 1986, two days after the last injection of
Methotrexate, Mr. Thompson experienced chest pain. Suffering from
a heart attack, Mr. Thompson was admitted to Raleigh General
Hospital. The Thompsons allege that Dr. Gant failed to inform the
hospital of Mr. Thompson's treatment with Methotrexate. Mr.
Thompson's August 4, 1986 blood tests showed the presence of
Methotrexate in the toxic range. According to Dr. Hasselbacher,
this level of Methotrexate indicates an extraordinarily high
exposure to the drug because normally the drug is eliminated from
the system within a day or two.
On August 7, 1986, Mr. Thompson died. The decedent's
postmortem examination found the cause of death to be "Coronary
Thrombosis," "Hypertensive and Arteriosclerotic Cardiovascular
Disease," and "CC: Chronic Obstructive Pulmonary Disease." The
microscopic examination noted that "[t]he [bone] marrow is
relatively hypocellular."
Alleging that Dr. Gant's negligence hastened the decedent's death, Janet Thompson, as Mr. Thompson's personal representative filed a malpractice action in federal court which was settled for $250,000.See footnote 2 2 Thereafter, the Thompsons filed a complaint with the Board of Osteopathy. Apparently the Board considered the Thompsons' complaint four separate times and each time concluded that no malpractice had occurred. Aside from the conclusion, none of the Board's minutes contains any findings of fact and conclusions of law.See footnote 3 3 Although one meeting's minutes state
that a full report was sent to the Attorney General's office, the
record does not contain a copy of this report.
Alleging that the Board of Osteopathy failed in its
duties (1) to make findings of fact and conclusions of law, and (2)
to pursue disciplinary proceedings against Dr. Gant, the Thompsons
petitioned circuit court for a writ of mandamus. In its answer,
the Board of Osteopathy responded with "some of the information
considered by the Board in reaching its decision" by listing
thirteen factors and some subsequent information considered by the
Board. After the circuit court refused to issue a writ of
mandamus, the Thompsons appealed to this Court.
W. Va. Code 30-14-12a [1986] requires the Board of
Osteopathy to make an initial determination concerning the
existence of probable cause before deciding to take disciplinary
action against any licensed osteopathic physician or surgeon. In
addition to determining probable cause, the Board must make
findings of fact and conclusions of law. W. Va. Code 30-14-12a (c)
[1986], states:
In every case considered by the board under
this article regarding suspension, revocation
or issuance of a license whether initiated by
the board or upon complaint or information
from any person or organization, the board
shall make a preliminary determination as to
whether probable cause exists to substantiate
charges of cause to suspend, revoke or refuse
to issue a license as set forth in subsection
(a), section eleven [§ 30-14-11(a)] of this
article. If such probable cause is found to
exist, all proceedings on such charges shall
be open to the public who shall be entitled to
all reports, records, and nondeliberative
materials introduced at such hearing,
including the record of the final action
taken: Provided, That any medical records,
which were introduced at such hearing and
which pertain to a person who has not
expressly waived his right to the
confidentiality of such records, shall not be
open to the public nor is the public entitled
to such records. If a finding is made that
probable cause does not exist, the public has
a right of access to the complaint or other
document setting forth the charges, the
findings of fact and conclusions supporting
such finding that probable cause does not
exist, if the subject osteopathic physician
consents to such access.
Our major case dealing with public access to medical
disciplinary proceedings is Daily Gazette Co., Inc. v. W. Va. Bd.
of Medicine, 177 W. Va. 316, 352 S.E.2d 66 (1986)(Bd. of Medicine).
In Bd. of Medicine, a newspaper sought information under the West
Virginia's Freedom of Information Act, W. Va. Code 29B-1-1 [1977]
et seq., about physician disciplinary proceedings from the medical
licensing board for physicians and podiatrists.See footnote 4
4
Based on our
holding in Daily Gazette Co., Inc. v. Committee on Legal Ethics of
the West Virginia State Bar, 174 W. Va. 359, 326 S.E.2d 705
(1984)(State Bar)(recognizing a constitutional right of access to
attorney disciplinary proceedings), we required the disclosure of
information about physician disciplinary proceedings. In Vest,
supra note 4, 138 W. Va. at 683, 76 S.E.2d at 898, we noted that
"because Code, 30-3, and Code, 30-14, pertain to the same subject
matter, namely the regulation of professions which deal with the
public health, the statutes should be read in pari materia, unless
the statutes exhibit an intent on the part of the Legislature that
they should be separately construed. (Citations omitted.)"
In Syl. pt. 2, Bd. of Medicine we stated:
Under W.Va.Code, 30-3-14(o) (1986), if
the West Virginia Board of Medicine finds that
probable cause does not exist to substantiate
charges of disciplinary disqualification, the
public has a right of access to the complaint
or other document setting forth the charges,
and the findings of fact and conclusions of
law supporting the dismissal.
See Syl. pt. 6, State Bar (recognizing a similar public "right of
access to the complaint and the findings of fact and conclusions of
law which are presented in support of such dismissal" for lack of
probable cause).
In Syl. pt. 4, State Bar we held that: "Under West
Virginia Constitution art. III, § 17, which provides that 'The
courts of this State shall be open,' there is a right of public
access to attorney disciplinary proceedings." We noted that
"[t]his fundamental constitutional right of access is not limited
to formal trials, but extends to other types of judicial and quasi-
judicial proceedings. (Examples omitted.)" State Bar, 174 W. Va.
at 364, 326 S.E.2d at 710-11.
Although W. Va. Code 30-14-12a (c) [1986] conditions public access to the complaint and the Board's findings of fact and conclusions of law only "if the subject osteopathic physician consents to such access," the statute's condition conflicts with Bd. of Medicine and State Bar and, therefore, cannot stand. In Bd. of Medicine, similar language was found too restrictive and that language was deleted by the 1989 amendment to W. Va. Code 30-3-14 (o).See footnote 5 5
Based on Bd. of Medicine and State Bar, we find that in
this case even though the Board found that probable cause does not
exist to substantiate charges of disciplinary disqualification,
the Thompsons and the public have "a right of access to the
complaint or other document setting forth the charges, and the
findings of fact and conclusions of law supporting the dismissal."
Syl. pt. 2, in part, Bd. of Medicine.
The Board maintains that a writ of mandamus is not
necessary because their answer to the Thompsons' petition sets
forth their findings of fact and conclusions of law. However, the
Board's answer to the Thompsons' petition, no matter how detailed,
does not fulfill the obligation of the Board to make and adopt
formal findings of fact and conclusions of law. The Board's answer
to the petition was probably drafted by their lawyer and does not
have the same force and effect as matters considered and formally
adopted by the Board. The requirement of the Board's formal
consideration and adoption of findings of fact and conclusions of
law is a safeguard against arbitrary and capricious conduct. In
order to avoid questions or the appearance of impropriety the Board
should act in a formal way in this matter.
This Court has long recognized that the issuance of a
writ of mandamus requires the coexistence of three elements. In
Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W. Va.
538, 170 S.E.2d 367 (1969), we stated:
A writ of mandamus will not issue unless
three elements coexist--(1) a clear legal
right in the petitioner to the relief sought;
(2) a legal duty on the part of the respondent
to do the thing which the petitioner seeks to
compel; and (3) the absence of another
adequate remedy.
In accord Syl. pt. 3, Parsons v. W. Va. Bureau of Emp. Programs,
189 W. Va. 107, 428 S.E.2d 528 (1993); Syl. pt. 3, Fisher v. City
of Charleston, 188 W. Va. 518, 425 S.E.2d 194 (1992); Syl. pt. 5,
Parks v. Bd. of Review of W. Va. Dept. of Employment Security, 188
W. Va. 447, 425 S.E.2d 123 (1992).
In this case, we find that all three elements exist for
a writ of mandamus to compel the Board to consider and adopt formal
findings of fact and conclusions of law regarding the Thompsons'
complaint. The Thompsons have clear legal right to the Board's
findings of fact and conclusions of law; the Board failed in its
legal duty to consider and adopt formal findings of fact and
conclusions of law; and, no other adequate remedy exist.
The Thompsons also seek to compel the Board to take
disciplinary action against Dr. Gant. However, this part of the
Thompsons' petition is not reachable through mandamus, because it
involves a matter of discretion. Our traditional rule in mandamus
was recently restated in Syl. pt. 6, Lyons v. Richardson, 189 W.
Va. 157, 429 S.E.2d 44 (1993):
"'"Mandamus is a proper remedy to compel
tribunals and officers exercising
discretionary and judicial powers to act, when
they refuse so to do, in violation of their
duty, but it is never employed to prescribe in
what manner they shall act, or to correct
errors they have made." Syl. pt. 1, State ex
rel. Buxton v. O'Brien, 97 W.Va. 343, 125 S.E.
154 (1924).' Syl. pt. 2, State ex rel.
Lambert v. Cortellessi, 182 W.Va. 142, 386
S.E.2d 640 (1989)." Syllabus, Ney v. West
Virginia Workers' Compensation Fund, 186 W.Va.
180, 411 S.E.2d 699 (1991).
W. Va. Code 30-14-12a (c) [1986], provides that "the
board shall make a preliminary determination as to whether probable
cause exists to substantiate charges" and depending on the Board's
determination of probable cause, the Code section provides
different procedures. See supra p. 6. Given the disputed facts,
we find that the Thompsons are not entitled to a writ of mandamus
prescribing the Board's manner of action.
For the above stated reasons we affirm that part of the
decision of the Circuit Court of Kanawha County that refused to
direct the manner in which the Board of Osteopathy should act in
this matter, but we reverse that part of the Circuit Court's
decision that failed to require the Board of Osteopathy to adopt
formal findings of fact and conclusions of law in this matter and
we remand this case for further proceedings consistent with this
opinion.
Affirmed, in part; reversed, in part and remanded.
the Attorney General's office informing them
of this decision.
The September 24, 1988 Board minutes state:
Allen Gant, D.O. settled his case out of
court. Action was taken by the board; it was
determined no malpractice was evident.
The April 8, 1989 Board minutes state:
Regarding Allen Gant, D.O. and the Thompson
case, the board noted a full hearing was held
on this matter at the last board meeting.
They concluded no malpractice was committed;
therefor, no action on his license was needed.
The September 22, 1989 Board minutes state:
Regarding Allen Gant, D.O. and the Thompson
case, the board noted a full report was
submitted to the Attorney General's office.
This outlined the conclusion that no
malpractice was committed; therefor, no action
on his license was needed.