SER Lisa Miles v. W. Va. Board of Registered Professional Nurses

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2015 Term FILED
September 17, 2015
released at 3:00 p.m.
No. 15-0131 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA ex rel. LISA MILES,
Petitioner
v.
WEST VIRGINIA BOARD OF REGISTERED PROFESSIONAL NURSES,
Respondent
ORIGINAL PROCEEDING IN PROHIBITION
WRIT GRANTED
Submitted: September 2, 2015
Filed: September 17, 2015
Lisa L. Lilly, Esq. Patrick Morrisey, Esq.
Martin & Seibert, L. C. Attorney General
Charleston, West Virginia Greg S. Foster, Esq.
Attorney for Petitioner Assistant Attorney General
Attorneys for Respondent
CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “‘The writ of prohibition will issue only in clear cases where the
inferior tribunal is proceeding without, or in excess of, jurisdiction.’ Syl., State ex rel.
Vineyard v. O'Brien, 100 W.Va. 163, 130 S.E. 111 (1925).” Syl. Pt. 1, State ex rel.
Johnson v. Reed, 219 W. Va. 289, 633 S.E.2d 234 (2006).
2. “In determining whether to entertain and issue the writ of prohibition
for cases not involving an absence of jurisdiction but only where it is claimed that the
lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate means, such as direct appeal, to
obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a
way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly
erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated
error or manifests persistent disregard for either procedural or substantive law; and (5)
whether the lower tribunal’s order raises new and important problems or issues of law of
first impression. These factors are general guidelines that serve as a useful starting point
for determining whether a discretionary writ of prohibition should issue. Although all
five factors need not be satisfied, it is clear that the third factor, the existence of clear
error as a matter of law, should be given substantial weight.” Syl. Pt. 4, State ex rel.
Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
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3. “In adjudicating a contested case concerning the revocation or
suspension of a nurse’s license to practice registered professional nursing, the West
Virginia Board of Examiners for Registered Professional Nurses must follow the
procedural requirements set forth in Chapter 30 of the West Virginia Code, as well as the
contested case hearing procedure set forth in Title 19, Series 5, of the West Virginia Code
of State Rules.” Syl. Pt. 2, State ex rel. Fillinger v. Rhodes, 230 W. Va. 560, 741 S.E.2d
118 (2013).
ii
WORKMAN, Chief Justice:
Petitioner Lisa Miles (hereinafter “petitioner”) seeks a writ of prohibition to
prohibit respondent West Virginia Board of Registered Professional Nurses (hereinafter
“the Board”) from proceeding on a complaint against her license. Petitioner asserts that
the Board’s failure to resolve the complaint against her within one year from the date of
an interim status report, pursuant to West Virginia Code § 30-1-5(c) (2005), divests it of
jurisdiction to proceed on the complaint.
Based upon our review of the briefs, legal authorities, appendix record, and
upon consideration of arguments of counsel, this Court finds that the Board has failed to
comply with the statutory mandates of West Virginia Code § 30-1-5(c) and therefore
further action on the complaint against petitioner’s license is in excess of its jurisdiction.
Accordingly, petitioner’s request for relief in prohibition is granted.
I. FACTS AND PROCEDURAL HISTORY
Petitioner received her nursing degree in 2010; she worked as a registered
nurse in the emergency room at St. Joseph’s Hospital (now known as Camden-Clark
Hospital; hereinafter “Camden-Clark”) in Parkersburg from June 2010 until April 2,
2013, when she was terminated for allegedly violating the hospital’s narcotic waste
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policies.1 An audit of her medical records demonstrated that on eleven occasions she
pulled the narcotic Dilaudid without a physician’s order, on three occasions pulled
Dilaudid for patients who had already been discharged from the emergency room where
she was working, and on nine occasions entered orders for Dilaudid on behalf of a
physician. In these instances, Camden-Clark asserts that petitioner did not properly chart
that the medication had either been “not given” to the patient or “wasted,” as required by
Camden-Clark’s policies. Petitioner contends that she did not divert the medication, but
rather, the errors were occasioned by her lack of sufficient training on the electronic
medication dispensation software she was required to use.2
Petitioner self-reported her termination to the Board, which then issued a
Notice of Complaint on April 2, 2013. On August 14, 2013, a little over four months
after the complaint, the Board issued a status report to Camden-Clark via regular mail
which stated simply that the matter was “under continued investigation and review by the
Board staff.” The Board provides no explanation for why the status report was not sent
via certified mail, but Camden-Clark indicated in an email contained in the appendix
1
Petitioner now works at Jackson General Hospital where she began working in
August 2013, four months after being terminated from Camden-Clark. She has had no
other complaints against her license.
2
Petitioner claims that she was poorly trained on the software and that she was
trained on “floor nursing” as opposed to “emergency room nursing.” She claims that
hard copies of the software manuals were unavailable and the online instructions were
insufficient. She claims that one to two weeks before she was terminated she requested
additional training. She allegedly offered to take a drug test upon being discharged,
which was declined by Camden-Clark.
2
record that it did receive the letter nonetheless. The Board sent another status report on
March 25, 2014, indicating the case was “currently being negotiated for settlement”; the
Board sent petitioner a proposed consent decree days earlier. Camden-Clark has no
record of receiving this letter.
On October 10, 2014—one year and two months after the status report—the
Board sent a letter to Camden-Clark, addressed internally to “complainant” with no
mailing address, quoting West Virginia Code § 30-1-5(c) and stating
[a]s you know the Board has exceeded its time allotments
provided in law to resolve the complaint you filed. While the
Board strives to resolve all complaints within the required
time limits, there are some that out of necessity need a longer
period of time. What this law doesn’t consider are the
available resources to a government agency, the cooperation
of the licensee and his or her attorney in attempting to resolve
a complaint and other issues that affect the timeline this law
requires.
Pursuant to this law, you as the complainant, and the
Board have to agree to extend the time frame. By this letter
the Board is informing you of the necessity to extend the time
frame to continue pursuing the complaint against the licensee.
If you disagree with this extension, please inform the Board in
writing. This case is being set for hearing.
(emphasis added). Camden-Clark indicates in emails contained in the appendix record
that this letter was received. Inexplicably, the Board sent the same letter again on
December 11, 2014, addressed to Susan Abdella at Camden-Clark, but concluded the
letter by stating that the case “is scheduled for Hearing.” A Notice of Hearing was issued
the next day setting a hearing for January 20, 2015.
3
On January 7, 2015, the Assistant Attorney General assigned to the case
emailed Camden-Clark asking to interview witnesses and ostensibly requesting additional
documents. On January 15, 2015—five days before the scheduled hearing—the Assistant
Attorney General contacted petitioner’s counsel; as a result of this contact, petitioner’s
counsel requested the Board’s complete file on the matter and witness information. On
that date, the Assistant Attorney General emailed the Board’s file, the electronic
medication dispensation software training manual, and a Board of Pharmacy report to
petitioner’s counsel; he received the training manual, Board of Pharmacy report, and full
audit containing spreadsheets only days earlier from Camden-Clark. The Board concedes
that these materials contained 152 new pages of documents, but argues that it had only
just been received from Camden-Clark. 3 All of these documents were identified as
exhibits upon which the Board intended to rely at the hearing.
Upon motion of petitioner, the January 20, 2015, hearing was continued
until February 19, 2015; this petition for a writ of prohibition was filed shortly before the
February hearing was scheduled to occur.
3
The appendix record reveals that petitioner’s counsel was given an opportunity to
review the Board’s administrative file early on in this matter and provided copies of its
contents. However, as a result of the Assistant Attorney General’s more recent request
for additional documentation from Camden-Clark, the Board was in possession of
additional materials not originally contained in the file.
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II. STANDARD OF REVIEW
It is well-established that “‘[t]he writ of prohibition will issue only in clear
cases where the inferior tribunal is proceeding without, or in excess of, jurisdiction.’
Syl., State ex rel. Vineyard v. O'Brien, 100 W.Va. 163, 130 S.E. 111 (1925).” Syl. Pt. 1,
State ex rel. Johnson v. Reed, 219 W. Va. 289, 633 S.E.2d 234 (2006). Moreover,
prohibition will also lie where the lower tribunal is alleged to be acting in excess of its
“legitimate powers.” Specifically,
[i]n determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower
tribunal’s order is clearly erroneous as a matter of law; (4)
whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or
substantive law; and (5) whether the lower tribunal’s order
raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as
a useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors
need not be satisfied, it is clear that the third factor, the
existence of clear error as a matter of law, should be given
substantial weight.
Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). With
these standards in mind, we proceed to the parties’ arguments.
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III. DISCUSSION
West Virginia Code § 30-1-1 et seq. contains general provisions applicable
to State Boards of Examination or Registration regulating designated professions and
occupations. In particular, West Virginia Code § 30-1-5(c) provides that
[e]very board referred to in this chapter has a duty to
investigate and resolve complaints which it receives and
shall, within six months of the complaint being filed, send a
status report to the party filing the complaint by certified mail
with a signed return receipt and within one year of the status
report’s return receipt date issue a final ruling, unless the
party filing the complaint and the board agree in writing to
extend the time for the final ruling.
(emphasis added). The primary issue presented herein is twofold: 1) whether the
statutory requirements contained in West Virginia Code § 30-1-5(c) are mandatory and
jurisdictional or merely directory; and 2) if mandatory, whether the Board complied with
these mandates.
We note at the outset that this Court strictly applied the requirements of
West Virginia Code § 30-1-1 et seq. against this professional Board in State ex rel.
Fillinger v. Rhodes, 230 W. Va. 560, 741 S.E.2d 118 (2013) wherein we recently held:
In adjudicating a contested case concerning the
revocation or suspension of a nurse’s license to practice
registered professional nursing, the West Virginia Board of
Examiners for Registered Professional Nurses must follow the
procedural requirements set forth in Chapter 30 of the West
Virginia Code . . . .
Syl. Pt. 2, in part, id. (emphasis added). Without expressly speaking to the issue of
whether the time limitations were mandatory and jurisdictional, the Court ruled that the
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Board’s failure to resolve the complaint against Fillinger within the time requirements
contained in the statute necessitated dismissal of the complaint. The Court noted that
with respect to the time requirements contained in the statute, “[t]his Court has no reason
to conclude that the Legislature meant less than what it said in W. Va. Code, 30-1-5(c)
[2005], about those requirements[.]” Id. at 567, 741 S.E.2d at 125. Soon thereafter, the
Court reiterated this sentiment with respect to disciplinary proceedings before the Real
Estate Appraiser Licensing Board which were not resolved in accordance with the time
requirements of West Virginia Code § 30-1-5(c). See State ex rel. York v. W. Va. Real
Estate Appraiser Licensing and Certification Bd., ___ W. Va. ___, 760 S.E.2d 856, 862
(2014) (“The Board’s actions are in excess of its jurisdiction, in that the complaints have
not been handled in a timely fashion, as required [by] W. Va. Code 30-1-5(c)[.]”).
This Court has stated that “[t]here is no universal rule by which directory
provisions may be distinguished from those which are mandatory” and that it must be
determined “from the intention of the Legislature.” Thomas v. McDermitt, 232 W. Va.
159, 169, 751 S.E.2d 264, 274 (2013) (quoting State ex rel. Board of Education v.
Melton, 157 W.Va. 154, 165, 198 S.E.2d 130, 136 (1973)). In that regard, the legislative
history of West Virginia Code § 30-1-5(c) reveals that the 1996 version of this statute
contained no specific deadlines for resolution. Rather, the statute provided merely that
“[e]very board referred to in this chapter has a duty to investigate and resolve complaints
which it receives and shall do so in a timely manner.” W. Va. Code § 30-1-5(b) (1996).
However, Senate Bill 737 was introduced in 2005 for the express purpose of
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“establishing a time limit for licensing boards to issue a final ruling on complaints.” See
Senate Bill No. 737, “Introduced Version,” March 23, 2005. Notably the original version
of the introduced Bill required that a final ruling be issued “within one year of the
complaint being filed[.]” Id. The final version, codified as amended at West Virginia
Code § 30-1-5(c), inserted the requirement of an interim status report, sent via certified
mail and return receipt requested, from which the one year to resolve was to be
calculated.
Turning now to the parties’ arguments, petitioner argues that the
requirements in West Virginia Code § 30-1-5(c)—including the requirements that status
reports be issued certified mail, return receipt requested, that complaints be resolved
within one year of the status report, and that agreements to extend these timelines must be
in writing—are mandatory and jurisdictional, relying heavily on Syllabus Point 2 of
Fillinger. Petitioner argues specifically that the Board admits it did not issue the status
reports certified mail and more importantly, that it is undisputed that the Board neither
resolved the matter within one year of the status report, nor obtained an “agreement in
writing” to extend that deadline.
The Board, on the other hand, argues that the statute contemplates an
overall eighteen month period in which these complaints may be resolved, i.e. six months
to issue a status report and another twelve months thereafter to resolve. The Board
further argues that, although it did not resolve this matter in eighteen months, it obtained
8
an “agreement in writing” to extend this time period. It contends that the October 10,
2014 and December 11, 2014, letters telling complainant to notify it in writing if it
disagrees with an extension “forms the basis” of an agreement in writing.
Moreover, the Fillinger and York cases notwithstanding, the Board argues
that the statutory requirements are merely directory and do not go to the “essence” of
what was intended by the Legislature—that the complainant be kept apprised of status
and that the parties be permitted to extend the statutory deadline for resolution.
Specifically, the Board concedes that while this Court has issued cases indicating that use
of the term “shall” makes a statutory requirement mandatory, Syl. Pt. 1, Nelson v. W. Va.
Public Employees Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982), it has also stated that
use of the word “is not conclusive in determining whether they are mandatory or
directory.” Canyon Public Serv. Dist. v. Tasa Coal Co., 156 W. Va. 606, 611, 195 S.E.2d
647, 651 (1973). The Board notes that the Court has endorsed the rule that whether a
statute is mandatory or directory is dependent upon “whether the thing directed to be
done is of the essence of the thing required, or is a mere matter of form.” Thomas, 232
W. Va. at 169, 751 S.E.2d at 274 (quoting State ex rel. Kennedy v. Boles, 150 W.Va. 504,
511-12, 147 S.E.2d 391, 396 (1966)). In that regard, the Board argues that the
requirements of West Virginia Code § 30-1-5(c) are “matter[s] of convenience rather than
substance” and that “the purpose of the legislature . . . can be accomplished in a manner
other than that prescribed with substantially the same results.” Id. at 512, 147 S.E.2d at
396.
9
We disagree with the Board’s contention that the time-based requirements
of West Virginia Code § 30-1-5(c) are matters of mere “convenience” or “form.” This
determination is borne out by the fairly explicit legislative history seeking to establish
specific time requirements for resolution of such complaints. These requirements are
unquestionably mandatory and therefore, jurisdictional, as pertains to these types of
proceedings. Moreover, the Board’s contention that the statute provides an overall
eighteen-month timeframe for resolution is wholly without merit; quite simply, this is not
what the statute provides. The plain language of the statute requires the issuance of an
interim status report within six months, from which date the Board has one year to
resolve the complaint unless an extension is obtained as prescribed. As we previously
stated Fillinger, we have no reason to believe the Legislature “meant less than what it
said” regarding these requirements. Id. at 567, 741 S.E.2d at 125.
Moreover, this Court did not mean less than what it said in Syllabus Point 2
of Fillinger: this Board must follow the procedural requirements of West Virginia Code
§ 30-1-5(c). Based upon the date of the status report and pursuant to statute, the Board
had until August 14, 2014,4 to issue a final ruling unless an extension was obtained from
Camden-Clark in writing. It unquestionably failed in both regards. Not only did the
Board not resolve the matter by August 14, but it did not even acknowledge the need for
4
Given that there was no return receipt—likewise in violation of the statutory
requirements—the only date available for this calculation is the date of the status report
itself.
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an extension until after that deadline had passed. When it did so, rather than obtaining an
agreement to extend with the complainant in writing, the Board simply told the
complainant an extension was needed and presumed to have its agreement absent an
objection in writing. Under any rational construction, the Board’s letters regarding an
extension merely offered a proposal to extend the deadline in writing and then attempted
to shift the statutory duty solely onto Camden-Clark to provide written disagreement with
an extension. This presumptuous approach created a complete nullification of the
statutory requirements. Were the statute’s requirements so easily evaded, there would
have been little reason for the Legislature to alter the language of the statute to provide
for specific acts and deadlines.
We conclude that the Board in this instance has exceeded its jurisdiction by
failing, almost entirely, to comply with the statute governing its procedural handling of
complaints. Not only did the Board fail to comply with the statute, but it failed,
inexplicably, to take heed of this Court’s holding in Fillinger which was directed
explicitly to this Board. The Board’s refusal to strictly comply with the very
straightforward requirements in the statute seems to evidence a blatant disregard for both
the Legislature’s and this Court’s explicit instructions on how these matters should be
handled, at worst, or a pattern of lackadaisical pursuit of complaints by this Board, at
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best.5 Either way, we are dismayed to note that in addition to divesting it of jurisdiction,
the Board’s actions in this case present the seldom-seen “persistent disregard for either
procedural or substantive law” likewise warranting a writ of prohibition. Syl. Pt. 4, in
part, Hoover, 199 W. Va. 12, 483 S.E.2d 12.
Finally, this Court would be remiss if we did not remind the Board of the
gravity of its responsibilities to the public in light of its ostensible belief that the
requirements of the statute are impracticable6 and therefore it need not comply with them
or the mandate of this Court. West Virginia Code § 30-1-1a plainly states that “the
fundamental purpose of licensure and registration [of professionals] is to protect the
public[.]” As well-stated by Justice Loughry, who in his concurrence in Fillinger
specifically urged the Board to take measures to ensure its inaction was not repeated:
[i]t is the responsibility of the Board to act diligently and
promptly in reviewing, investigating, and conducting
5
Petitioner makes two additional arguments regarding the Board’s delay in
providing her with investigative documents until five days before the hearing and the
applicability of Rule 41 of the West Virginia Rules of Civil Procedure. As a result of our
disposition of this matter, we need not address these arguments.
6
As noted above, the Board’s apparent “form” letter requesting an extension from
complainants, bemoans the fact that the time requirements of West Virginia Code § 30-1­
5(c) “doesn’t consider” certain practical difficulties which may arise during the course of
a complaint investigation and resolution. We note first that at no time during these
proceedings did the Board offer any explanation as to why the complaint against
petitioner could not be resolved within the statutory time frame. Secondly, the
expediencies identified in this form letter are not unusual and are undoubtedly the reason
the Legislature provided a simple method of extending the resolution period. More
importantly, these matters are better addressed to the Legislature than used to coax a
complainant into extending the resolution period.
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disciplinary hearings on complaints brought before it not only
to guarantee that nurses will be held accountable for proven
misconduct, but most importantly, to ensure the safety of
patients and the public. Such expeditious action by the Board
also assures hardworking, diligent, and caring nurses that they
are working alongside other nurses who are competent and fit
to hold a nursing license in this State. This results in
protecting the public while also preserving the integrity of the
nursing profession.
Fillinger, 230 W. Va. at 568, 741 S.E.2d at 126 (Loughry, J., concurring). Clearly, the
Legislature has determined that professionals are entitled to resolution of the cloud over
their license within a specific time frame. More critically, the Legislature has determined
that the public should not be interminably exposed to professionals who potentially
present a risk of harm to their patients, clients or the public at large.
IV. CONCLUSION
Accordingly, we find that the Board lacks jurisdiction to pursue further
action on the complaint against petitioner and that therefore the complaint against
petitioner must be dismissed.
Writ Granted.
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