Modi v. West Virginia Board of Medicine

465 S.E.2d 230, 195 W. Va. 230, 1995 W. Va. LEXIS 208
CourtWest Virginia Supreme Court
DecidedNovember 17, 1995
Docket22792
StatusPublished
Cited by24 cases

This text of 465 S.E.2d 230 (Modi v. West Virginia Board of Medicine) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Modi v. West Virginia Board of Medicine, 465 S.E.2d 230, 195 W. Va. 230, 1995 W. Va. LEXIS 208 (W. Va. 1995).

Opinions

ALBRIGHT, Justice:

This case is a contested administrative proceeding under W.Va.Code § 29A-5-1, et seq., initiated by the West Virginia Board of Medicine (the Board) pursuant to the disciplinary authority of W.Va.Code § 30-3-14,1 against Shakuntala Modi, M.D., a psychiatrist. Dr. Modi is a physician licensed in West Virginia and is engaged in a solo practice in Wheeling. [234]*234The disciplinary proceeding grows out of Dr. Modi’s care and treatment of William Abbott by use of a technique known as depossession therapy. The Notice of Hearing prepared by the Board and served on Dr. Modi charged:

6. Depossession therapy is not care and treatment recognized by a reasonable, prudent physician engaged in the same specialty as being acceptable under similar conditions and circumstances, and accordingly, Dr. Modi has violated West Virginia Code § 30-3-14(c)(17), and Board regulation 11 CSR 1A 12.1(x), in her care and treatment of the complainant [Mr. Abbott] on June 1, 1990.
7. Dr. Modi’s use of depossession therapy in her care and treatment of the complainant on June 1, 1990, and in her medical practice generally, constitutes performing procedures or prescribing a therapy that by the accepted standards of medical practice in the community constitutes experimentation on human subjects without first obtaining full, informed and written consent, and accordingly, Dr. Modi has violated West Virginia Code § 30-3-14(c)(14), (17), and Board regulations 11 CSR 1A 12.1(y).
8. Dr. Modi’s billing to the complainant’s insurer, Blue Cross Blue Shield of West Central West Virginia in Parkersburg, for the care and treatment rendered to the complainant on June 1,1990, by her, was a falsely filed report which Dr. Modi knew was false, because depossession therapy is not a form of psychotherapy recognized as acceptable under similar conditions and circumstances by a reasonable, prudent physician, engaged in the same specialty, and accordingly, Dr. Modi has violated West Virginia Code § 30-3-14(c)(5), (17), and Board regulations 11 CSR 1A 12.1(p).
9. Dr. Modi’s use of depossession therapy, as set forth in paragraph 4, and her billing to the insurer, as set forth in paragraph 5, constitutes unprofessional conduct, and accordingly, Dr. Modi has violated West Virginia Code § 30-3-14(c)(17) and Board regulation 11 CSR 1A 12.1(j).

Dr. Modi filed an answer admitting the use of depossession therapy and denying any conduct justifying disciplinary action. After lengthy procedural manuevers and extensive hearings, the hearing examiner, Edward C. Goldberg, prepared a thirty-six page report of “Recommended Findings of Fact and Conclusions of Law” which rather fully discussed the issues of procedure, law and facts in the case.

UNDERLYING FACTS

From the hearing examiner’s report it may be ascertained that on June 1, 1990, the appellee here, Dr. Shakuntala Modi, undertook to treat Mr. William Abbott in her office by use of depossession therapy. According to Dr. Modi, depossession therapy involves the use of hypnosis or hypnotherapy to relieve individuals of fears arising from such individuals’ beliefs or feelings that they are or may be possessed by spirits. Dr. Modi also testified that the use of depossession therapy does not imply that the practitioner believes his or her patient is possessed by such spirits, but requires only that the practitioner conclude that the patient being treated believes himself or herself to be so possessed.

It appears that preparatory to this session, Dr. Modi discussed the proposed use of the therapy with a hypnotist who had previously treated Mr. Abbott and who had accompanied Mr. Abbott to Dr. Modi’s office and took a rather complete history from Mr. Abbott. It further appears that Dr. Modi did not thoroughly discuss the intended therapy with Mr. Abbott or obtain a written consent for the therapy from him. After commencing the depossession therapy session with Mr. Abbott, it appears that Dr. Modi worked with the patient for about four hours, utilizing what Dr. Modi described as hypnotherapy. According to Mr. Abbott, Dr. Modi engaged in various incantations and called upon angels to lift dead souls out of his body in the course of the extended therapy session.

Mr. Abbott filed a complaint against Dr. Modi with the West Virginia Board of Medicine regarding his depossession treatment. Based on the complaint the Board then instituted the present proceeding, setting forth the charges quoted above, including the charge that Dr. Modi had improperly billed [235]*235an insurance company $480.00 for psychotherapy when, in fact, she had engaged in depossession therapy.

During the proceedings before the hearing examiner extensive evidence was developed regarding the circumstances surrounding Dr. Modi’s treatment of Mr. Abbott and, of particular importance here, on the question of whether depossession therapy was an accepted form of medical treatment which would not require a written informed consent or whether it was an experimental treatment which would require such a consent.

THE DECISIONS BELOW

The hearing examiner’s report described five ultimate issues, which may be summarized as follows:

1. Did the Board establish that by using depossession therapy on Mr. Abbott, Dr. Modi violated Code § 30-3-14(c)(17) and Board Reg. 12.1(x)2 because a reasonable, prudent physician in the same specialty would not recognize depossession therapy as being acceptable under similar conditions and circumstances?
2. Did Dr. Modi violate Code § 30-3-14(c)(14) and (17) and Board Reg. 12.1(y) by using an experimental therapy without first obtaining a full, informed and written consent from Mr. Abbott?
3. Did Dr. Modi violate Code § 30-3-14(c)(5), (17) and Board Reg. 12.1(p) by filing a false report with the patient’s insurance carrier when she described her use of depossession therapy as psychotherapy when'depossession therapy is not recognized by reasonable, prudent physicians in the same specialty as being acceptable under similar conditions and circumstances?
4. Did Dr. Modi engage in unprofessional conduct in violation of Code § 30-3-14(c)(17) and Board Reg. 12.1(j) by using depossession therapy and billing the patient’s insurer for the service?
5.If it is found that Dr. Modi violated the cited sections in one or more particulars, what is the appropriate sanction to be imposed?

In his report, the hearing examiner concluded that the Board of Medicine had the burden of proof to establish its charges by “full, preponderating and clear evidence”. He further concluded that Dr. Modi was entitled to adduce evidence from experts who were not licensed to practice medicine in any of the United States on the issues of whether depossession therapy is a legitimate form of care and treatment and whether such therapy is experimental.

Based on the evidence before him, the hearing examiner stated that the Board had proved that depossession therapy is indeed experimental and that Dr. Modi had obtained neither written nor informed consent from the patient. He further concluded that Dr. Modi’s use of depossession therapy was legitimate care and treatment for which Dr.

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Modi v. West Virginia Board of Medicine
465 S.E.2d 230 (West Virginia Supreme Court, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
465 S.E.2d 230, 195 W. Va. 230, 1995 W. Va. LEXIS 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/modi-v-west-virginia-board-of-medicine-wva-1995.