State ex rel. O.H. v. W. Va. Bd. of Med.
| Decision Date | 27 October 2016 |
| Docket Number | No. 16–0449,16–0449 |
| Citation | 238 W.Va. 139,792 S.E.2d 638 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia ex rel. O.H., M.D., Petitioner v. West Virginia Board of Medicine, Respondent |
Stuart A. McMillan, Esq., Joshua A. Johnson, Esq., Bowles Rice LLP, Charleston, West Virginia, Counsel for Petitioner.
Patrick Morrisey, Esq., Attorney General, Greg S. Foster, Esq., Katherine A. Campbell, Esq., Assistant Attorneys General, Charleston, West Virginia, Counsel for Respondent.
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.
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 § 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 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 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.
This Court has long held that 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) ( ).
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 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.
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.
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) (). 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).
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...
To continue reading
Request your trial
-
Hasan v. W. Va. Bd. of Med.
...with the relevant statute that permitted an extension of time and denied Dr. Hasan’s petition. See State ex rel. O.H. v. W. Va. Bd. of Med. , 238 W. Va. 139, 792 S.E.2d 638 (2016).5 The Board designated the matter as Complaint Number 14-89-S.6 Pursuant to W. Va. Code § 30-3-14(c)(8) (LexisN......
- Albert v. City of Wheeling