State ex rel. Miles v. W. Va. Bd. of Registered Prof'l Nurses

• Citation: 777 S.E.2d 669,236 W.Va. 100
• Decision Date: 17 September 2015
• Docket Number: No. 15–0131.,15–0131.
• Parties: STATE of West Virginia ex rel. Lisa MILES, Petitioner v. WEST VIRGINIA BOARD OF REGISTERED PROFESSIONAL NURSES, Respondent.
• Court: Supreme Court of West Virginia

236 W.Va. 100

777 S.E.2d 669

STATE of West Virginia ex rel. Lisa MILES, Petitioner

v.WEST VIRGINIA BOARD OF REGISTERED PROFESSIONAL NURSES, Respondent.

No. 15–0131.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 2, 2015.

Decided Sept. 17, 2015.

Lisa L. Lilly, Esq., Francis & Lilly, PLLC, Charleston, WV, Attorney for Petitioner.

Patrick Morrisey, Esq., Attorney General, Greg S. Foster, Esq., Assistant Attorney General, Attorneys for Respondent.

Opinion

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 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 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.

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.

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.

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 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...