Chalifoux v. W.Va. Dep't of Health & Human Res.

• Docket Number: 21-0902
• Decision Date: 26 October 2023
• Parties: ROLAND F. CHALIFOUX, JR., D. O., individually and ROLAND F. CHALIFOUX, JR., D. O., PLLC d/b/a VALLEY PAIN MANAGEMENT CLINIC, Plaintiffs Below, Petitioners, v. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, WEST VIRGINIA BUREAU OF PUBLIC HEALTH, LETITIA TIERNEY, M. D., J. D., individually and in her former capacity as West Virginia Commissioner and State Health Officer, WEST VIRGINIA BOARD OF OSTEOPATHIC MEDICINE, and DIANA SHEPARD, individually and in her capacity as Executive Director for the West Virginia Board of Osteopathic Medicine, Defendants Below, Respondents.
• Court: West Virginia Supreme Court

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ROLAND F. CHALIFOUX, JR., D. O., individually and ROLAND F. CHALIFOUX, JR., D. O., PLLC d/b/a VALLEY PAIN MANAGEMENT CLINIC, Plaintiffs Below, Petitioners, v. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, WEST VIRGINIA BUREAU OF PUBLIC HEALTH, LETITIA TIERNEY, M. D., J. D., individually and in her former capacity as West Virginia Commissioner and State Health Officer, WEST VIRGINIA BOARD OF OSTEOPATHIC MEDICINE, and DIANA SHEPARD, individually and in her capacity as Executive Director for the West Virginia Board of Osteopathic Medicine, Defendants Below, Respondents.

No. 21-0902

Supreme Court of Appeals of West Virginia

October 26, 2023

Submitted: September 13, 2023

Appeal from the Circuit Court of Kanawha County The Honorable Jennifer F. Bailey, Judge Civil Action No. 16-C-844 Scott H. Kaminski, Esq.

RAY WINTON & KELLEY, PLLC

Charleston, West Virginia

Counsel for Petitioners

Perry W. Oxley, Esq.

L. R. Sammons, III, Esq.

Samantha J. Fields, Esq.

OXLEY RICH SAMMONS, PLLC

Huntington, West Virginia Counsel for Respondents

West Virginia Board of Osteopathic

Medicine and Diana Shepard

Natalie C. Schaefer, Esq.

Caleb B. David, Esq.

Kimberly M. Bandy, Esq.

Shannon M. Rogers, Esq.

SHUMAN MCCUSKEY SLICER PLLC

Counsel for Respondents West Virginia Department of Health and Human Resources, West Virginia Bureau for Public Health, and Letitia Tierney, M. D., J. D.

SYLLABUS

1. "A circuit court's entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. "To the extent that governmental acts or omissions which give rise to a cause of action fall within the category of discretionary functions, a reviewing court must determine whether the plaintiff has demonstrated that such acts or omissions are in violation of clearly established statutory or constitutional rights or laws of which a reasonable person would have known or are otherwise fraudulent, malicious, or oppressive in accordance with State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992). In absence of such a showing, both the State and its officials or employees charged with such acts or omissions are immune from liability." Syl. Pt. 11, W.Va. Reg'l Jail & Corr. Facility Auth. v. A. B., 234 W.Va. 492, 766 S.E.2d 751 (2014).

3. "Before the prosecution of a lawsuit may be barred on the basis of res judicata, three elements must be satisfied. First, there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings. Second, the two actions must involve either the same parties or persons in privity with those same parties. Third, the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved, had it been presented, in the prior action." Syl. Pt. 4, Blake v. Charleston Area Med. Ctr., Inc., 201 W.Va. 469, 498 S.E.2d 41 (1997).

OPINION

WOOTON, JUSTICE.

Petitioners/plaintiffs below Dr. Roland F. Chalifoux, Jr., D. O. and Roland F. Chalifoux, Jr., D. O., PLLC d/b/a Valley Pain Management Clinic (collectively "Chalifoux") appeal the February 6, 2018, and October 4, 2021, orders entered by the Circuit Court of Kanawha County granting summary judgment to all respondents/defendants below. In the underlying action Chalifoux alleged that respondents West Virginia Department of Health and Human Resources, West Virginia Bureau for Public Health (the "Bureau"), and its former Commissioner and State Health Officer, Letitia Tierney, M. D., J. D., (collectively the "DHHR defendants") breached their duty of confidentiality by issuing a press release announcing that he and his clinic used unsafe injection practices and urging patients to seek testing for bloodborne illnesses. As against respondents West Virginia Board of Osteopathic Medicine (the "BOM") and its Executive Director, Diana Shepard (collectively the "BOM defendants"), Chalifoux asserted a due process claim for failure to provide a hearing within fifteen days of their summary suspension of his medical license as a result of the Bureau's investigation.

As to the DHHR defendants, the circuit court found that they were entitled to qualified immunity because the issuance of a press release identifying Chalifoux and his clinic was a discretionary act permitted by applicable regulations and Chalifoux produced no evidence that they did so fraudulently or maliciously. As to the BOM defendants, the circuit court found that Chalifoux's claim for damages for failure to provide a timely hearing on his summary suspension could have been brought in a previously filed action for injunctive relief-which action was settled and dismissed-and was therefore barred by res judicata.

After careful review of the briefs of the parties, their oral arguments, the appendix record, and the applicable law, we find no error and therefore affirm the February 6, 2018, and October 4, 2021, orders of the circuit court.

I. FACTS AND PROCEDURAL HISTORY

On October 22, 2013, a patient underwent an epidural steroid injection at Chalifoux's clinic, Valley Pain Management; later that evening she was diagnosed with bacterial meningitis and a report was made to the Bureau. The Bureau initiated an outbreak investigation that included an inspection of Chalifoux's clinic. During the initial inspection, Chalifoux allegedly told investigators that he did not wear masks during procedures other than placement of spinal cord devices. Laboratory results revealed that the specific flora cultured from the patient's meningitis was respiratory in nature which, coupled with Chalifoux's failure to wear a mask, caused the Bureau to conclude that the patient's meningitis was "highly suspicious for iatrogenic [i.e., related to medical treatment] transmission." No further meningitis cases were uncovered.

However, during the inspection of Chalifoux's clinic, investigators also purportedly identified unsafe, non-sterile injection techniques. Although the specifics of Chalifoux's alleged techniques and the risk presented are disputed by the parties, the Bureau believed that Chalifoux admitted to "double-dipping" with syringes, i.e., entering a vial with a used syringe and then later using the vial for a different patient, creating a risk of bloodborne disease transmission. Following the initial inspection, the Bureau provided recommendations to correct these and other practices; in a follow-up inspection in December 2013, the Bureau's report noted the clinic undertook a "rapid and complete response" to the issues raised and that its procedures were then found to be "excellent." Nonetheless, the Bureau had residual concerns and recommendations.

More specifically, as a result of the alleged "double-dipping," the Bureau became concerned that the clinic posed a risk of bloodborne disease transmission among certain of its patient population. The Bureau contacted patients who underwent procedures in October 2013 and requested certain clinical records from Chalifoux to conduct a cross-match with the State's hepatitis and HIV registries to ascertain if any of his patients contracted or could have been a source of transmission of these diseases. Because some of the clinic's patients were from Ohio and Pennsylvania, the Bureau was also in contact with those states' public health officials during its investigation.

At the end of February 2014, Dr. Danae "Dee" Bixler of the Bureau, who led the investigation, determined that there had been no evidence of transmission,^[1] the risk of transmission was low, and therefore opined in an internal memo that "no further action is necessary." However, upon further consultation with both Ohio officials and the Centers for Disease Control (the "CDC"), Dr. Bixler changed her mind about closing the investigation and accepted the CDC's recommendation that further patient notification was necessary given the seriousness of the potential risk. Despite the relatively few clinic patients identified on the registries, the concern was that other potentially infected patients had simply not been tested and therefore could have contracted and/or presented additional sources of transmission.

To narrow the scope of potential patients requiring notification, the Bureau requested additional clinic records and sent Chalifoux a questionnaire inquiring about his practices with specific medications and procedures. ^[2] In late April 2014, Chalifoux ostensibly began to balk at the scope of the records requests and retained counsel. Respondent Dr. Letitia Tierney ("Dr. Tierney") advised Chalifoux in writing that his refusal to cooperate "limit[ed]" the Bureau's choices in terms of notification and gave him a deadline to provide the requested records; her letter also referred Chalifoux to applicable regulations requiring, inter alia, the Bureau to notify patients of potential exposure. Internally at the Bureau, Dr. Tierney discussed Chalifoux's lack of response to the records request in an email stating that "I may need to send [a] letter to board of medicine about him and we need to get patient lists. . . . [I]f he doesn't cooperate, then we will put adds [sic] in the paper to notify his patients."

After Chalifoux continued to refuse the Bureau's additional records requests, Dr. Tierney filed a complaint with the BOM on July 17, 2014. In the complaint, Dr. Tierney stated that because Chalifoux refused to provide records to allow for a more targeted patient notification, a general announcement in the newspaper was necessary. However, she explained in sworn testimony that she and officials in Ohio and Pennsylvania had reached an agreement to refrain from...