SER O.H., M.D.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2016 Term
FILED
October 27, 2016
released at 3:00 p.m.
No. 16-0449 RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL. O.H., M.D.,
Petitioner
v.
WEST VIRGINIA BOARD OF MEDICINE,
Respondent
PETITION FOR WRIT OF PROHIBITION
WRIT DENIED
Submitted: October 11, 2016
Filed: October 27, 2016
Stuart A. McMillan, Esq. Patrick Morrisey, Esq.
Joshua A. Johnson, Esq. Attorney General
Bowles Rice LLP Greg S. Foster, Esq.
Charleston, West Virginia Katherine A. Campbell, Esq.
Counsel for Petitioner Assistant Attorneys General
Charleston, West Virginia
Counsel for Respondent
JUSTICE LOUGHRY 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).
i
3. “A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect.” Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).
ii
LOUGHRY, Justice:
The petitioner, O.H., a licensed medical doctor (hereinafter “O.H.” or “the
doctor”), seeks to invoke this Court’s original jurisdiction to prohibit the respondent, the
West Virginia Board of Medicine (hereinafter “the Board”), from taking any further action
on a complaint filed against the doctor by his former patient, Ms. M.B. (hereinafter “M.B.”
or “the complainant”).1 The doctor contends that M.B.’s complaint should be dismissed with
prejudice due to the Board’s failure to timely act upon it. Having carefully considered the
parties’ arguments, the appendix records submitted by each party, and the applicable law, this
Court concludes that the Board complied with the provision in West Virginia Code § 30-1­
5(c) (2015 & 2016 Supp.) permitting an extension of time to obtain a final ruling on the
complaint. As the extended time period had not expired when this petition for prohibition
was filed, prohibition does not lie and the petition is denied.
I. Factual and Procedural Background
Pursuant to its authority in the West Virginia Medical Practice Act, the Board
licenses medical doctors, podiatrists, and physician assistants in West Virginia. W.Va. Code
1
At O.H.’s request, we refer to him and to the complainant by their initials. The
Board’s complaint committee has not yet decided whether there is probable cause to believe
that O.H. has committed a violation for which he may be professionally sanctioned, and the
details of the pending investigation are confidential. See W.Va. Code § 30-3-14(p) (2015 &
2016 Supp.); Daily Gazette Co., Inc. v. W.Va. Bd. of Medicine, 177 W.Va. 316, 352 S.E.2d
66 (1986).
1
§ 30-3-5 (2015). The Board also investigates complaints alleging that its licensees have
violated the Medical Practice Act. W.Va. Code § 30-3-14 (2015 & 2016 Supp.), W.Va. Code
R. §§ 11-3-1 to -19 (2010). When the Board finds probable cause to substantiate charges of
disciplinary disqualification, the Board will pursue charges in a contested case proceeding.
See id. If a charge is proven, the Board may take disciplinary action, including suspending
or revoking the licensee’s license. W.Va. Code § 30-3-14.
On September 15, 2014, M.B. filed a complaint with the Board alleging that
O.H. engaged in an improper emotional and sexual relationship with her while he was her
treating physician. She further alleged that he failed to correctly treat her when she revealed
suicidal ideations. The doctor responded to the complaint on October 20, 2014, admitting
that he had exchanged frequent text messages with M.B. while treating her, but denying they
had engaged in any sexual or other improper relationship. According to O.H., M.B. was
under the care of a different doctor when she later attempted suicide. Thereafter, M.B.
submitted a written reply to the Board on November 18, 2014, restating her complaint.
The matter was reviewed by the Board’s complaint committee on January 11,
2015, and an investigation was initiated. In a status report sent to M.B. on March 13, 2015,
the Board explained that the investigation was ongoing. The status report was sent via
certified mail, which M.B. signed for on March 16, 2015. On May 17, 2015, the complaint
2
committee met with O.H. and his legal counsel. At the conclusion of the meeting, the
committee determined that further investigation was needed before a probable cause
determination could be made.
The Board states that its investigation into M.B.’s claims consisted of, inter
alia, eighty-nine hours of work by a private investigator, including performing multiple
witness interviews; the Board’s issuance of ten subpoenas for medical, telephone, and other
records; and a review of extensive documents.2 At its meeting in September 2015, the
complaint committee directed the Board’s executive director to hire an expert psychiatrist to
render an opinion on O.H.’s conduct and the standard of care. According to the Board, its
expert was to submit a written report by December 30, 2015; however, the report was not
received until April 16, 2016.
Meanwhile, in February 2016, the Board obtained M.B.’s written consent to
extend the time for a final ruling on her complaint until September 15, 2016. The complaint
committee was scheduled to once again consider this complaint during its meeting on May
15, 2016. According to the Board, at this meeting the committee was to determine whether
2
The appendix record reflects that the Board examined, inter alia, O.H.’s medical and
billing records to determine whether they support the information reported by O.H. and M.B.
The Board also examined text messages for authenticity because O.H. accused M.B. of
modifying the wording of some of the text messages he sent her.
3
there was probable cause to substantiate a violation and proceed to a contested case hearing,
or whether the complaint should be dismissed. However, O.H. filed the instant petition for
writ of prohibition with this Court on May 11, 2016, asserting that the Board had failed to
proceed in a timely manner. On May 12, 2016, we granted O.H.’s motion to stay the
administrative proceedings pending a resolution of the petition for prohibition. After briefing
and oral argument, this matter is now ready for our decision.
II. Standard for Issuance of Writ of Prohibition
This Court has long held 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); accord Syl. Pt. 2, in part, State
ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977) (“A writ of
prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only
issue where the trial court has no jurisdiction or having such jurisdiction exceeds its
legitimate powers.”).
There is no dispute that the Board has jurisdiction to investigate and pursue
complaints filed against licensed medical doctors, including O.H. However, O.H. argues that
the Board has exceeded its jurisdiction and acted contrary to statute by continuing to
4
investigate M.B.’s complaint for more than nineteen months. To evaluate whether a tribunal
is acting in excess of its jurisdiction, we consider the following factors:
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). With these
principles in mind, we turn to the parties’ arguments.
III. Discussion
A. Petition for Prohibition
The Legislature has limited the amount of time in which any administrative
Board covered by Chapter 30 of the West Virginia Code, including the Board of Medicine,
has to investigate and resolve complaints.
5
Every board referred to in this chapter shall 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.
W.Va. Code § 30-1-5(c) (2015 & 2016 Supp.).3 When considering this statute in the context
of actions taken by a different Chapter 30 board, we held that “[i]n 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, State ex rel. Fillinger v. Rhodes, 230 W.Va. 560, 741 S.E.2d 118
(2013) (emphasis added); accord Syl. Pt. 4, in part, State ex rel. York v. W.Va. Real Estate
Appraiser Licensing and Certification Bd., 236 W.Va. 608, 760 S.E.2d 856 (2014) (“In
adjudicating a contested case concerning the revocation or suspension of a licensed real
estate appraiser’s license to perform appraiser duties, the West Virginia Real Estate
Appraiser Licensing and Certification Board must follow the procedural requirements set
forth in Chapter 30 of the West Virginia Code[.]”). The requirements of West Virginia Code
§ 30-1-5(c) “are unquestionably mandatory and therefore, jurisdictional, as pertains to” the
administrative disciplinary proceedings of Chapter 30 boards. State ex rel. Miles v. W.Va.
Bd. of Registered Professional Nurses, 236 W.Va. 100, 105, 777 S.E.2d 669, 674 (2015).
3
This statute was amended in 2016, but the amendments are not relevant to this case.
6
In the instant case, the Board argues that it has fully complied with the
requirements of West Virginia Code § 30-1-5(c). The complaint was filed on September 15,
2014, and six months later, on March 13, 2015, the Board sent a status report to the
complainant M.B. by certified mail. M.B. signed the return receipt for this mail on March
16, 2015, thus establishing the deadline of March 16, 2016, for the Board to issue a final
ruling on her complaint. See id., in part (“within one year of the status report’s return receipt
date [the board shall] issue a final ruling”). However, the statute permits an extension of this
deadline if “the party filing the complaint and the board agree in writing[.]” Id. The record
reflects that in February 2016, the Board and M.B. entered into a written, signed agreement
to extend the deadline for issuing the final ruling on M.B.’s complaint to September 15,
2016, an additional six months.4
O.H. contends that the Board has failed to comply with the statutory time
frames and thus he is entitled to a writ of prohibition and the dismissal of M.B.’s complaint.
Although West Virginia Code § 30-1-5(c) permits the Board to secure a written agreement
with the complainant to obtain an extension of time, O.H. argues that the use of the term “the
4
The agreement, “West Virginia Board of Medicine Agreement to Extend Deadline
for Final Ruling,” provided, in part, that “[p]ursuant to West Virginia Code § 30-1-5(c), and
by placing their dated signatures upon this form, Ms. [M.B.] and the Board are memorializing
their agreement to extend the deadline for a final ruling in this matter. By agreement, the
Board’s final ruling in this matter must now occur on or before September 15, 2016.” M.B.
signed the agreement on February 19, 2016, and the Board’s executive director signed on
February 25, 2016.
7
final ruling” means that this extension may only be obtained after a probable cause finding
is already made. According to O.H., “nowhere in the statute allows the Board to extend the
time for a preliminary determination of probable cause,” and in more than nineteen months,
the Board has yet to make a probable cause finding in this case.
The Board argues that O.H. is reading requirements into the statute that are not
there, and that the written agreement it reached with M.B. did extend the time for its final
ruling. The Board contends that until this Court stayed the administrative proceedings, it had
planned to have the entire matter–including the complaint committee’s probable cause
determination; an administrative hearing, if probable cause is found; and the issuance of a
final ruling–completed by the September 15, 2016, extended deadline. The Board states that
a probable cause finding is merely an interim step along the way to a final ruling, and if
probable cause is found to substantiate the allegations in a complaint, the matter proceeds to
a contested case hearing and a final ruling. If, however, probable cause is not found, the final
ruling consists of the dismissal of the complaint.5
5
West Virginia Code § 30-3-14(p) provides, in part:
In every case considered by the board under this article
regarding discipline or licensure, 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
disqualification due to any reason set forth in subsection (c) of
this section.
8
After a careful review of the law pertaining to the Board’s handling of
disciplinary complaints, we must reject O.H.’s theory that the extension of time allowed by
West Virginia Code § 30-1-5(c) only applies after a probable cause finding is made.
Although the statute establishes a specific deadline for one step in the complaint
process–sending a status report to the complainant–it does not establish a deadline by which
the Board must make a probable cause determination. Moreover, the separate statute
pertaining to the Board’s finding of probable cause, West Virginia Code § 30-3-14(p), and
its supporting legislative regulation, West Virginia Code of State Rules § 11-3-10.14, also
do not specify a time by which the Board must make a probable cause determination.6 “‘[I]t
West Virginia Code of State Rules § 11-3-10 provides, in part:
10.12. Upon receipt of the respondent’s response or at any point
in the course of investigation or inquiry into a complaint, the
complaint committee may determine that there is not and will
not be sufficient evidence to warrant further proceedings or that
the complaint fails to allege misconduct for which a licensee
may be sanctioned by the Board. In that event, the complaint
committee shall dismiss the complaint. . . .
....
10.14. If the complaint committee determines that there is
reason to believe that the acts alleged occurred and constitute a
violation for which a licensee may be sanctioned by the Board,
the complaint committee shall find probable cause to believe
there is a violation of the law.
10.15. A hearing is required if it is determined that there is
probable cause to believe that acts alleged occurred and may
constitute a violation of any provision of law. The complaint
committee may take such action as it determines a complaint
warrants.
6
See note 5, supra.
9
is not for [courts] arbitrarily to read into [a statute] that which it does not say. Just as courts
are not to eliminate through judicial interpretation words that were purposely included, we
are obliged not to add to statutes something the Legislature purposely omitted.’ Banker v.
Banker, 196 W.Va. 535, 546–47, 474 S.E.2d 465, 476–77 (1996) (citing Bullman v. D & R
Lumber Company, 195 W.Va. 129, 464 S.E.2d 771 (1995).” Longwell v. Bd. of Educ. of
County of Marshall, 213 W.Va. 486, 491, 583 S.E.2d 109, 114 (2003). Although recent
opinions7 of this Court addressing West Virginia Code § 30-1-5(c) happened to involve
complaints for which probable cause had already been found, nothing in the statute restricts
its application only to matters already in the adjudicatory process.
West Virginia Code § 30-1-5(c) plainly and unambiguously permits the Board
and the complainant to agree in writing to extend the time for issuance of the final ruling, and
“[a] statutory provision which is clear and unambiguous and plainly expresses the legislative
intent will not be interpreted by the courts but will be given full force and effect.” Syl. Pt.
2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951). The statute refers to the amount
of time the Board has to “investigate and resolve” complaints to a “final ruling,” i.e., to
complete the entirety of the Board’s disciplinary complaint process. Thus, as long as the
entire process will be completed and the Board’s final ruling issued within the time frame
7
Fillinger, 230 W.Va. 560, 741 S.E.2d 118; York, 236 W.Va. 608, 760 S.E.2d 856;
Miles, 236 W.Va. 100, 777 S.E.2d 669.
10
permitted by the statute, including an extension of time obtained in compliance with the
statute, the Board may proceed to act on a complaint. If, however, the final ruling is not
issued in that time frame, the Board loses jurisdiction over the complaint. See Miles, 236
W.Va. at 105, 777 S.E.2d at 674 (statutory time frames required by W.Va. Code § 30-1-5(c)
“are unquestionably mandatory and therefore, jurisdictional”).8
This statute was the subject of three recent cases where this Court issued writs
of prohibition and ordered the dismissal, with prejudice, of complaints due to the dilatory
conduct of other Chapter 30 boards. Importantly, none of the boards in those cases complied
with the provision in West Virginia Code § 30-1-5(c) allowing for the extension of the
deadline for the final ruling upon the written agreement of the complainant and the board.
Neither of the boards in Fillinger or York made any attempt to obtain such an agreement.
Fillinger, 230 W.Va. at 565, 741 S.E.2d at 123; York, 236 W.Va. 608, 760 S.E.2d 856
(2014). In Miles, the Board of Registered Professional Nurses waited until after the deadline
for the final ruling had already passed and then merely mailed a letter to the complainant
8
If probable cause is found and charges are pursued, the Board must also comply with
the time frames established for the adjudicatory process, including allowing the licensee
thirty days to answer the charges, providing mandatory discovery, providing a notice of
hearing at least thirty days before the hearing date, and allowing time for preparation of the
hearing transcript and the submission of proposed findings of fact and conclusions of law.
See W.Va. Code § 30-3-14(h) and (i); W.Va. Code § 30-1-8(f) (2015); W.Va. Code R. §§
11-3-10.18, 11-3-11.4, 11-3-11.5(e), 11-3-13.1 (2010). Thus, although there is no specific
deadline for making the probable cause determination, it would certainly behoove the board
to always make this determination promptly.
11
noting that an extension was needed and presuming that the complainant would agree. Miles,
236 W.Va. at 106, 777 S.E.2d at 675. The board in Miles did not obtain the written consent
of its complainant, as required by the statute. In contrast, the appendix record in the case sub
judice reflects that the Board and M.B. have complied with this statutory provision.9
Because the Board and M.B. agreed in writing to extend the deadline for the
issuance of a final ruling on M.B.’s complaint, and the extended deadline was still four
months away when O.H. filed this petition for prohibition, we conclude that O.H. has not
demonstrated an error of law or that the Board has acted in excess of its jurisdiction. As
such, prohibition does not lie. See Hoover, 199 W.Va. at 14-15, 483 S.E.2d at 14-15, syl. pt.
4 (when determining whether to grant discretionary writ of prohibition, Court gives
substantial weight to consideration of whether there exists clear error as matter of law);
Johnson, 219 W.Va. at 290, 633 S.E.2d at 235, syl. pt. 1 (writ of prohibition will issue only
in clear case where inferior tribunal is proceeding without, or in excess of, jurisdiction).
We must caution the Board, however, that even though West Virginia Code §
30-1-5(c) allows for an agreed extension of time to issue the final ruling, this option must
always be exercised in a reasonable and judicious manner. Certainly, the Legislature did not
intend for its time restriction on the final ruling to be ignored. The Legislature chose to enact
9
See note 4, supra.
12
explicit time restrictions for a reason, and these time requirements are not “matters of mere
‘convenience’ or ‘form.’” Miles, 236 W.Va. at 105, 777 S.E.2d at 674. “The fundamental
purpose of licensure and registration [of professionals] is to protect the public[.]” W.Va.
Code § 30-1-1a (2015). The public will not be protected, and licensees will not be treated
fairly, if a Chapter 30 board obtains an unnecessary, or unnecessarily long, extension of time.
Our previous reproach to the Board of Registered Professional Nurses bears repeating:
[I]t is the responsibility of the Board to act
diligently and promptly in reviewing,
investigating, and conducting 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.
Miles, 236 W.Va. at 107, 777 S.E.2d at 676. These words have equal application to the
Board of Medicine. O.H. asserts that the length of the investigation in this case was not
reasonable and the expert opinion was unnecessary. However, given the diametrically
13
different positions reportedly taken by M.B. and O.H. during the Board’s investigation, we
are unable to conclude that an additional six months was unreasonable under the particular
facts of this case.
B. The Stay
On May 12, 2016, this Court entered an order staying the Board’s action on
M.B.’s complaint until the resolution of this petition for prohibition. At that time, 126 days
remained on the Board’s extended deadline to issue its final ruling. The stay will
automatically be lifted contemporaneously with the issuance of this Court’s mandate order.10
The Board’s time in which to issue its final ruling is hereby tolled from the date of the stay
order until the date of the mandate order. Accordingly, the Board will have 126 days after
the date of the mandate order in which to issue its final ruling.
IV. Conclusion
For the foregoing reasons, the petition for writ of prohibition is denied and the
stay is lifted contemporaneously with the issuance of the Court’s mandate.
Writ denied.
10
Pursuant to Rule of Appellate Procedure 26(b), unless a timely petition for rehearing
is filed, the Clerk will issue the mandate as soon as practicable after the passage of thirty days
from the filing of this opinion.
14