West Virginia Supreme Court of Appeals on Friday upheld a decision by the West Virginia Board of Medicine that imposed disciplinary actions on Dr. Omar Hasan, a Beckley psychiatrist.
The original case was decided in Kanawha County Circuit Court in July 2018 after Hasan appealed a decision by the West Virginia Board of Medicine to discipline him for an improper relationship with a patient. Hasan alleged the board had erred by failing to adopt recommended finding of facts by its own hearing examiner, had improperly considered content of text messages and had misstated various facts in its final order.
Court documents state that Hasan began providing psychiatric medication in 2011 to a female patient. In September 2014, the patient reported to WVBOM that she and Hasan had had an improper relationship that included texts, phone calls, gifts and “sexual encounters on numerous occasions at various locations.”
She said that when Hasan ended the relationship, she tried to kill herself.
WVBOM investigated the patient’s claim and found probable cause to issue disciplinary actions against Hasan for entering a relationship with a patient for sexual satisfaction and for failing to cut off the patient-provider relationship once the texts had become sexual in nature, according to court filings.
Both are in violation of state law.
WVBOM investigators found more than 4,000 text messages – an average of more than 10 a day – between Hasan and the patient from January 2013 and January 2014. Phone records showed the two had engaged in more than 16 hours of phone calls, even though Hasan was not providing counseling to the patient.
In June 2017, the hearing examiner had recommended a fine of $3,000 and ordered that Hasan pay associated hearing costs and be publicly reprimanded. The examiner also recommended that Hasan have his license on probation for a period of three years but ruled Hasan could practice if he underwent remedial classes, submitted to a chart review of his medical records and if he visited WVBOM once a year to demonstrate he was obeying the other conditions.
Later in June 2017, WVBOM modified the hearing examiner’s recommendations and instead suspended Hasan’s medical license for a year, issued a public reprimand, ordered Hasan to complete a training program at his own expense in Kansas, required Hasan to make a written request for the license suspension to be lifted and to prove that he had completed the Kansas-based training, ordered him to appear before the board annually and to cover all costs of the hearings.
Hasan had appealed the decision to Kanawha County Circuit Court, which sided with the WVBOM.
Later, Hasan appealed the case to the State Supreme Court on the grounds that WVBOM had not followed the recommendation of the hearing examiner, that a Kanawha Circuit Court judge had failed to consider the content of the text messages and that the circuit court had relied on erroneous findings of WVBOM.
"Dr. Hasan identifies three specific areas where the Board’s order is incorrect," the opinion states. "It misstates his counsel’s efforts to get specific dates from M.B.; it misstates Dr. Hasan’s testimony concerning how M.B. acquired a necklace she claims was a gift from Dr. Hasan, implying that Dr. Hasan testified that M.B. stole the necklace when, in fact, he made no such accusation in his testimony; and it repeatedly misstates evidence concerning whether M.B.’s phone was forensically evaluated for manipulated texts by indicating that no manipulation was found when, in fact, the testimony clearly states that the phone was never evaluated for manipulated texts."
The Supreme Court concurred with the lower court's decision, however.
"While we agree that the Board made the three misstatements of which Dr. Hasan complains, we find no grounds to reverse on this issue," the opinion states. "Dr. Hasan was not prejudiced by these misstatements."
West Virginia Supreme Court of Appeals Justice John Hutchison, a former Raleigh County Circuit judge, wrote a concurring opinion for the court.
"In this case, the Board of Medicine’s final order rejected some of the hearing examiner’s findings of fact regarding witness credibility," said Hutchison. "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."