Opinion
No. 23-431
05-24-2024
STATE of West Virginia EX REL. Jose RAVELO, DDS Petitioner, v. WEST VIRGINIA BOARD OF DENTISTRY, Respondent.
Edward C. Martin, Esq., Flaherty Sensabaugh Bonasso PLLC, Charleston, West Virginia, Justin C. Withrow, Esq., Paul M. Flannery, Esq., Flannery Georgalis LLC, Cleveland, Ohio, Counsel for Petitioner Patrick Morrisey, Esq., Attorney General, Lindsay S. See, Esq., Solicitor General, Joanne M. Vella, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent
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).
3. "The primary rule of statutory construction is to ascertain and give effect to the intention of the Legislature." Syl. Pt. 8, Vest v. Cobb, 138 W. Va. 660, 76 S.E.2d 885 (1953).
4. "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. Hpperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).
5. An agreement to extend the period of time for an applicable regulatory board to issue a final ruling on a complaint pursuant to West Virginia Code § 30-1-5(c) is not barred by the fact that the applicable board is also the complainant.
PETITION FOR WRIT OF PROHIBITION
Edward C. Martin, Esq., Flaherty Sensabaugh Bonasso PLLC, Charleston, West Virginia, Justin C. Withrow, Esq., Paul M. Flannery, Esq., Flannery Georgalis LLC, Cleveland, Ohio, Counsel for Petitioner
Patrick Morrisey, Esq., Attorney General, Lindsay S. See, Esq., Solicitor General, Joanne M. Vella, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent ARMSTEAD, C.J.:
Petitioner Jose Ravelo, DDS (hereinafter "Petitioner"), seeks a writ of prohibition directing the West Virginia Board of Dentistry (hereinafter "the Board") to cease its current investigation of him and to prohibit the Board from taking any further disciplinary action against him based upon his treatment of a patient in 2021. Petitioner asserts that the Board violated the statutory time limitation for resolution of disciplinary actions and violated his due process rights.
After careful consideration of the parties’ arguments, legal authorities, and the appendix record, this Court finds that the Board complied with West Virginia Code § 30-1-5(c), which permits an extension of time for the Board to issue a final ruling. Because the extended time period had not yet expired when Petitioner filed the instant petition, we deny his request for a writ of prohibition.
I. FACTUAL AND PROCEDURAL HISTORY
Petitioner is a board-certified oral surgeon who currently practices at Mountain State Oral & Facial Surgery. On August 19, 2021, Petitioner performed a surgical procedure on F.S., a seventy-four year old man who presented with an infection at his jaw line. Petitioner determined that a surgical procedure was the best solution to remove the infection. Prior to performing the surgical procedure, Petitioner was aware that F.S. was taking Plavix, a blood thinner designed to reduce the risk of heart attacks. Petitioner did not direct F.S. to stop taking Plavix ahead of his upcoming surgery. Petitioner performed surgery on F.S. at 8:00 a.m. on August 19, 2021, and after being kept for evaluation, F.S. was discharged to return home. Later the same afternoon, Petitioner's office placed a post-operative call to F.S.’s home and was informed by F.S.’s wife that he was not doing well. Thereafter, a video call occurred to better assess F.S.’s condition.
Petitioner has been licensed in West Virginia since 2018.
West Virginia Code § 30-1-5 sets forth the time limitations in which any administrative board covered by Chapter 30 of the West Virginia Code, including the Board of Dentistry, has to investigate and resolve disciplinary complaints. See W. Va. Code § 30-1-5.
West Virginia Code section 30-1-5(c) provides, in relevant part, that [e]very 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 and the Respondent by certified mail with a signed return receipt and within one year of the status report’s return receipt dale issue a final ruling, unless the party filing the complaint and the board agree in writing to extend the time for the final ruling.
We use initials where necessary to protect the identities of those involved in this case. See W. Va. R. App. P. 40(e).
West Virginia Code section 30-4-19(a) provides, in relevant part, that "[t]he board may initiate a complaint … upon receipt of credible information and shall, upon the receipt of a written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action[.]"
During the call, Petitioner noted swelling in the floor of F.S.’s mouth, and he asked F.S. to return to the office. After F.S. returned to Petitioner’s office, Petitioner noted "swelling and clotting on the floor of F.S.’s mouth." After draining the area to reduce the swelling, Petitioner recommended that F.S. go to the emergency room for evaluation.
F.S. was transported by ambulance to the Emergency Department at Princeton Community Hospital where he was described as being in "significant acute distress." F.S. was admitted to the hospital where he remained for nine days. He was on a ventilator for five of the nine days while he was hospitalized.
A few weeks following F.S.’s surgery, Petitioner’s counsel sent a letter to the Board informing it of the complication following F.S.’s surgery. West Virginia Code § 30-4-19(g)(18) authorizes the Board to take disciplinary action against a licensee, certificate holder, or permittee who "[f]ail[s] to report to the board within 72 hours of becoming aware of any life threatening occurrence, serious injury, or death of a patient resulting from the licensee’s [ ] dental treatment." Id. Although Petitioner self-reported pursuant to West Virginia Code § 30-4-19(g)(18), he noted that he did not believe that F.S.’s complication met the statutory requirements of "life threatening occurrence" or "serious injury[,]" and that he self-reported out of an abundance of caution. Petitioner informed the Board, among other things, that F.S. had a "bleeding complication and hematoma requiring precautionary emergency room care." Further, Petitioner indicated that F.S. "remained in the hospital for a few days and was discharged in good condition."
The letter was dated September 7, 2021.
It is telling that the majority attempts to bolster its acceptance of the Board's weak justifications for violating the straightforward requirements of West Virginia Code section 30-4-19(a) by suggesting that Dr. Ravelo’s counsel waived his right to contest this issue by stating, in the self-report letter, that "Dr. Ravelo’s intention is to assist and cooperate with the Board’s investigation into this incident in any way that he can, and he pledges complete transparency in doing so." I cannot agree with the majority's bland assertion that Dr. Ravelo thus "identified the proper next step following the Board’s receipt of his self-report: an investigation."
Following receipt of Petitioner’s self-report, the Board issued a subpoena for F.S.’s medical records from Princeton Community Hospital. By letter dated February 14, 2022, Susan M. Combs, Executive Director of the Board, informed Petitioner that after reviewing his records and F.S.’s records from Princeton Community Hospital, the Complaint Committee of the Board "believes that violations of the standard of care in the practice of dentistry may have occurred" and "recommended to the Board that a complaint be filed in this matter." Specifically, the Complaint Committee expressed concerns that Petitioner "did not consult [F.S.’s] physician, nor advise [F.S] to stop taking Plavix prior to his surgery." In addition, the Complaint Committee believed that Petitioner nicked an artery during F.S.’s surgery, and because F.S. was still taking Plavix at a therapeutic level, such action resulted in "bleeding and swelling that required a nine day hospital stay, in which [F.S.] was on a ventilator for five of those days."
By letter dated March 14, 2022, Petitioner. responded to the complaint. Petitioner attached an article from the American Journal of Medicine, which he maintains "support[s] his decision to continue F.S.’s Plavix treatment." By letter dated April 11, 2022, Petitioner forwarded a report from Caroline M. Webber, DDS, for the Complaint Committee’s review and consideration. Petitioner asserts that Dr. Webber concluded in her report that Petitioner did not violate the standard of care.
On July 12, 2022, the Board issued a subpoena to Petitioner seeking CT scans taken between June 1, 2021, and October 31, 2021, related to F.S. On July 26, 2022, the Board provided Petitioner with a status report concerning the complaint at issue in this matter. At that time, the Board indicated that it was "still reviewing and considering the matters alleged." In addition, the Board indicated that, if it found probable cause regarding the allegations in the complaint, it would issue a charging statement. The Board further advised Petitioner in the July 26, 2022 status report that, if it did not find probable cause, it would notify Petitioner by letter. In May 2023, Petitioner, through his counsel, forwarded a letter to the Board asserting, among other things, that the Board had failed to adhere to the time requirements set forth in West Virginia Code § 30-1-5(c) and that its investigation was contrary to law. Petitioner also included a Freedom of Information Act (hereinafter "FOIA") request for, among other things, the Board’s investigatory file.
In July 2023, the Board responded to Petitioner’s FOIA request by providing copies of F.S.’s medical records from Princeton Community Hospital, an expert report from Michael B. Lee, DDS, and correspondence regarding an extension of time for the Board to issue a final ruling in Petitioner’s matter. The extension was requested by John E. Bogers, DDS, President of the Board to Susan M. Combs, Executive Director of the Board, pursuant to West Virginia Code § 30-1-5(c), which permits the party filing a complaint and the Board to "agree in writing to extend the time for the final ruling." Id. The extension extended the time for the Board to issue its final ruling from July 20, 2023, to July 20, 2024.
These documents were included as part of the "second rolling production of responsive FOIA documents."
West Virginia Code § 30-19-provides that a dentist may be subject to professional discipline for "[f]ailing to report to the board within 72 hours of becoming aware of any life threatening occurrence, serious injury, or death of a patient resulting from the licensee’s or permittee’s dental treatment[.] In this case, the surgery under review was performed on August 19, 2021, and Dr. Ravelo’s self-report to the Board was dated September 7, 2021 – 19 days later.
On July 19, 2023, Petitioner filed the petition for a writ of prohibition that is the subject of this action.
On November 15, 2023, this Court issued a rule to show cause directing the Board to show cause why a writ of prohibition should not be awarded as prayed for by Petitioner, Pursuant to Rule 16(j) of the West Virginia Rules of Appellate Procedure, "[u]nless otherwise provided, the issuance of a rule to show cause in prohibition stays all further proceedings in the underlying action for which an award of a writ of prohibition is sought."
Hoover provides that
[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.
Id. at 14-15, 483 S.E.2d at 14-15, Syl. Pt. 4.
II. STANDARD OF REVIEW
[1–4] Petitioner invokes this Court’s original jurisdiction in prohibition asserting that the Board exceeded its legitimate powers by failing to reach a resolution within the statutory maximum time to resolve the allegations against him and by launching its own investigation without sufficient cause. See Syl. Pt. 1, State ex rel. Johnson v. Reed, 219 W. Va. 289, 633 S.E.2d 234 (2006) (" ‘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)."). Because Petitioner asserts that the Board "exceeded the stat- utory limits on its power and jurisdiction," we are guided by the following:
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 standards in mind, we will now consider whether a writ of prohibition is warranted in this case.
III. ANALYSIS
Petitioner seeks a writ of prohibition, and because Hoover requires that "the existence of clear error as a matter of law, should be given substantial weight," we begin by assessing Petitioner’s argument that the Board erred as a matter of law.
A. TIME REQUIREMENTS SET FORTH IN WEST VIRGINIA CODE § 30-1-5(C)
[5–7] Petitioner asserts that the Board’s investigation exceeded the statutory time limits imposed by West Virginia Code § 30-1-5(c). In examining this statute, we are mindful of our rules of statutory construction. "The primary rule of statutory construction is to ascertain and give effect to the intention of the Legislature." Syl. Pt. 8, Vest v. Cobb, 138 W. Va. 660, 76 S.E.2d 885 (1953). "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). In other words, "[w]here the language of a statutory provision is plain, its terms should be applied as written and not construed." DeVane v. Kennedy, 205 W. Va. 519, 529, 519 S.E.2d 622, 632 (1999).
[8] With these rules in mind, we examine West Virginia Code § 30-1-5(c), which governs matters before administrative boards, including the Board of Dentistry, and which provides:
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 and the Respondent 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. The time period for final ruling shall be tolled for any delay requested or caused by the respondent or by counsel for the respondent and in no event shall a complaint proceeding be dismissed for exceeding the time standards in this section when such overage is the result of procedural delay or obstructive action by the accused or his or her counsel or agents.
Prior to 2005, this statute did not contain any specific deadlines for resolution of complaints. It 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)." State ex rel. Miles v. W. Va. Board of Registered Professional Nurses, 236 W. Va. 100, 105, 777 S.E.2d 669, 674 (2015). In 2005, the time requirements contained in subsection (c) were added. In reviewing the time requirements imposed by West Virginia Code § 30-1-5(c), we must first identify when the operative complaint was filed. Initially, we conclude that Petitioner’s self-report, that occurred in September of 2021, did not constitute the complaint in this matter. Petitioner’s self-report was "made out of an abundance of caution." Further, it specifically indicated that Petitioner "does not believe that a reasonable interpretation of [F.S.’s] complication would meet the statutory requirements of ‘life threatening occurrence’, nor ‘serious injury’." We agree with Petitioner that dentists may alert the Board of their own misconduct. However, in this case, Petitioner did not admit to any misconduct and his report merely advised the Board of the basis for a potential complaint. Therefore, we do not find the September 2021 self-report to be a complaint. Instead, Petitioner’s self-report began the process that eventually led to the filing of a complaint.
Petitioner indicates that this Court need not decide whether his self-report is the operative "complaint" because there is no scenario under which the Board can prevail on the statutory time limits issue. As explained below, we disagree.
Dr. Ravelo assigns as error the Board’s submission of this status report, which can at best be described as remarkably uninformative. I agree with the majority that it is not for this Court to establish, in the absence of any statutory guidance, a test to determine what does or does not constitute a "real" status report.
By letter dated February 14, 2022, the Board informed Petitioner that the Complaint Committee recommended that a complaint be filed against him. The Complaint Committee expressed concern that Petitioner had not consulted with F.S.’s physician nor had he advised F.S. to stop taking Plavix prior to his surgery. The Complaint Committee also believed that Petitioner nicked an artery during F.S.’s dental surgery which, combined with F.S.’s continued use of Plavix, caused the bleeding and swelling that required a nine day hospital stay. Petitioner was given thirty days to respond, which he did by letter dated March 14, 2022. In his March 14, 2022 letter, Petitioner indicated that he was responding to the "complaint" regarding his care of F.S., and he referenced Case No. 2022-DB-0006D. For these reasons, we conclude that the Board’s correspondence dated February 14, 2022, serves as the operative complaint in this matter. See W. Va. Code § 30-4-19(a) ("The [B]oard may initiate a complaint … upon receipt of credible information[.]"). Having determined that the complaint was filed on February 14, 2022, we proceed to examine whether the Board complied with the required timeframes set forth in West Virginia Code § 30-1-5(c).
The February 14, 2022 correspondence referenced the case number that had been assigned to the complaint: Case Number 2022-DB-0006D.
See W. Va. Code §§ 29B-1-1 to -7 (2023).
[9] "The plain language of [West Virginia Code § 30-1-5(c)] requires the issuance of an interim status report within six months" of the complaint being filed. Miles, 236 W. Va. at 106, 777 S.E.2d at 675. In this case, such status report would have been due on or about August 14, 2022. The Board complied with this requirement by sending a status report dated July 26, 2022. The status report states, in part, as follows:
The purpose of this letter is to provide you with a status report concerning the complaint filed against you by the Board. At this time, the Complaint Committee of the Board is still reviewing and considering the matters alleged.
We will attempt to keep you informed and notify you as to the Board’s decision regarding the complaint. Should the Board find probable cause as to the allegations in the complaint, the Board will issue a charging statement against you. If no probable cause is found, the Board will notify you by letter that no further action will be taken.
Petitioner argues that the Board’s status report is conclusory, offers "no insight into what the Board has done, what additional steps it plans to take, or when it plans to take them," and therefore, does not constitute a valid status report. Petitioner maintains that to constitute a proper status report, this report should have included the following types of information: (1) information regarding what the Board had done so far as it relates to documents that had been reviewed; (2) identification of concerns with Petitioner’s conduct; and (3) an explanation regarding the next step in the case. Petitioner further asserts that, without a valid status report, the Board’s time to investigate Peti- tioner’s treatment of F.S. expired six months after the Board’s complaint, which would have been in August 2022.
Petitioner concedes that our Court has not addressed the precise information that the Board must include in a status report required by West Virginia Code § 30-1-5(c). Further, the plain language of the statute does not address the specific information that must be included in status reports. West Virginia Code § 30-1-5(c) requires boards to "send a status report to the party filing the complaint and the Respondent by certified mail with a signed return receipt." Id. Given the lack of case law directly addressing this issue, Petitioner relies upon cases that discuss generally how boards should conduct investigations and which reiterate the responsibility of boards to act diligently.
In Miles, this Court granted a writ of prohibition against the West Virginia Board of Registered Professional Nurses because the nursing board failed (1) to resolve a complaint within one year of its status report and (2) to acknowledge the need for an extension of time until after the deadline for resolution had passed. The status report in Miles, which simply stated that the matter was "under continued investigation and review by the Board staff" was not dispositive, and this Court did not discuss any potential deficiencies with the substance of that status report. Id. at 103, 777 S.E.2d at 672. Given the wide range of professions and occupations governed by Chapter 30 of the West Virginia Code, we decline to impose specific subjects that must be contained in the required status report. Should the Legislature desire to codify any such requirements, it certainly may do so in the future.
This Court noted that the status report was not sent via certified mail and that a second status report was sent several months later.
I reject the Board’s suggestion that Dr. Ravelo's FOIA request is to blame for the delay in timely resolving this case. West Virginia Code section 30-1-5 provides, in relevant part, that
[t]he time period for final ruling shall be tolled for any delay requested or caused by the respondent or by counsel for the respondent and in no event shall a complaint proceeding be dismissed for exceeding the time standards in this section when such overage is the result of procedural delay or obstructive action by the accused or his or her counsel or agents.
I cannot accept the proposition – which is implicit in the Board's complaint about the necessity of "extensive review and redaction" of documents – that Dr. Ravelo’s request for relevant discovery materials falls within the statutory rubric of "procedural delay or obstructive action" on his part, By the time the FOIA request was filed, twenty months had already elapsed since Dr. Ravelo’s self-report, and there is nothing in the appendix record to suggest that the FOIA requests were extensive or that "review and redaction" of documents was so time-consuming for the Board's staff as to hold up the proceedings.
The status report in this matter was dated July 26, 2022. Petitioner argues that the Board was required to issue its final ruling on or before July 26, 2023. However, the "West Virginia Board of Dentistry Agreement to Extend Deadline for Final Ruling" indicates that the Board was required to issue its final ruling in this matter on or before July 20, 2023. Although the parties differ as to which date in July 2023 the final ruling was required, they appear to agree that, absent an appropriate extension, such resolution was required by July 2023.
[10] Prior to both of the dates the parties believe apply, the Executive Director of the Board and the President of the Board agreed to a one-year extension for the issuance of the final ruling in this matter pursuant to West Virginia Code § 30-1-5(c), which permits "the party filing the complaint and the board" to agree to an extension. Id. Petitioner argues that the extension clause contained in West Virginia Code § 30-1-5(c) does not apply in cases where the Board itself initiates a complaint. However, we identify no such prohibition in our statute. There is no statutory restriction on the length of an extension, and importantly, the statute does not exclude a board from availing itself of this particular provision in cases in which a board initiates a complaint. Therefore, we hold that an agreement to extend the period of time for an applicable regulatory board to issue a final ruling on a complaint pursuant to West Virginia Code § 30-1-5(c) is not barred by the fact that the applicable board is also the complainant. In the instant case, there has been only one extension by agreement, which is authorized by West Virginia Code § 30-1-5(c). Therefore, the time for final resolution of the complaint has not expired, and we, therefore, conclude that the Board has not violated the statutory time limits imposed upon disciplinary actions.
We are mindful of Petitioner's concerns that boards may attempt to take advantage of this provision by extending the deadline for final resolution by an unreasonable period of time. In such case, a licensee, certificate holder, or permittee may have a due process claim. See infra. However, this was not the case here.
B. INVESTIGATION
Petitioner next argues that the Board lacked an adequate basis for investigating his treatment of F.S. and failed to abide by the statutory procedures for launching such investigation. The Board is empowered "to issue subpoenas, to conduct investigations and hire an investigator and to take testimony and other evidence concerning any matter within its jurisdiction." West Virginia Code § 30-1-5(b) (emphasis added). Further, the Board is required to "investigate and resolve complaints which it receives[.]" West Virginia Code § 30-1-5(c). Finally, the Board "may initiate a complaint … upon receipt of credible information." W. Va. Code § 30-4-19(a).
[11] Petitioner maintains that his September 2021 self-report did not constitute "credible information" supporting the Board’s "investigation." However, the requirement regarding "credible information" relates to the Board’s authority to initiate a complaint. See W. Va. Code § 30-4-19(a) ("The board may initiate a complaint upon … receipt of credible information[.]") Petitioner maintains that even if his self-report constituted credible information, the correct next step for the Board would have been to issue a complaint against him, not to conduct an investigation.
As we noted above, the Board is authorized to conduct investigations. See West Virginia Code § 30-1-5(b). If this Court were to agree with Petitioner’s position, the Board would have been limited to two courses of action - it could have either accepted Petitioner’s opinion that there was no "life threatening occurrence" or "serious injury" or it would have been forced to file a complaint against Petitioner without assessing the credibility of the information.
In the instant case, the Board properly conducted an initial investigation of Dr. Ravelo’s treatment of F.S. in order to determine whether the information it received was "credible" and thus warranted the filing of a complaint. By investigating, the Board determined that F.S. had been hospitalized for nine days with five of those days on a ventilator, not for a "few days" as Petitioner indicated in his self-report. In addition, the investigation assisted the Complaint Committee in forming its belief that Dr. Ravelo had nicked an artery during F.S.’s surgery which, combined with F.S.’s continuing use of Plavix at a therapeutic level, caused bleeding and swelling that resulted in his nine-day hospital stay. For these reasons, among others, the Complaint Committee disagreed with Dr. Ravelo’s characterization contained in his self-report and instead deemed the incident as a "life threatening occurrence" and "serious injury."
Petitioner relies upon West Virginia Code 30-1-5(c), which requires the Board to "investigate and resolve complaints." Since the Board takes the position that Petitioner’s self-report was not a complaint, Petitioner believes that the Board improperly investigated his self-report by subpoenaing F.S.’s hospital records when there was not yet an active complaint against him. Before this Court, Petitioner argues that this is "no mere technical error." However, in his self-report, Petitioner acknowledged that the Board would conduct an investigation following receipt of his self-report. Specifically, the self-report indicated that "Dr. Ravelo’s intention is to assist and cooperate with the Board’s investigation into this incident in any way that he can, and he pledges complete transparency in doing so." We believe that Petitioner identified the proper next step following the Board’s receipt of his self-report: an investigation. Moreover, West Virginia Code § 30-4-19(a) permits the Board to initiate a complaint upon its receipt of "credible information." The requirement that the information be "credible" necessarily requires at least an initial investigation of its veracity. Petitioner’s assertion that no investigation may take place until after a formal complaint was filed is inconsistent with the language of the statute. Accordingly, we are unpersuaded by Petitioner’s argument that the investigation with which he agreed to cooperate with improper.
C. DUE PROCESS
[12] Even though we conclude that the Board has not exceeded the statutory time limits, we must now examine Petitioner’s assertion that the Board's delay in resolving the instant complaint violates his constitutional right to due process. Petitioner alleges a violation of Article III, Section 17 of the West Virginia Constitution, which provides that "[t]he courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay." W. Va. Const. Art. III, § 17. "Due process is succinctly stated in article III, § 10 of the West Virginia Constitution: ‘No person shall be deprived of life, liberty, or property, without due process of law, and judgment of his peers.’ " SER Hoover v. Smith, 198 W. Va. 507, 511, 482 S.E.2d 124, 128 (1997).
In support of his due process argument, Petitioner relies upon cases involving delays by the Office of Administrative Hearings in issuing drivers’ license-revocation decisions. See Reed v. Staffileno, 239 W. Va. 538, 803 S.E.2d 508 (2017) and Frazier v. Derechin, 246 W. Va. 36, 866 S.E.2d 101 (2021). The glaring difference between those cases and the instant case is that there were "no time constraints imposed by rule or statute governing the issuance of decisions by [the Office of Administrative Hearings]." Frazier v. Derechin, Id. at 41, 866 S.E.2d at 106. Due process was implicated in Frazier because it operated as an "outer limit" due to the absence of statutory time constraints. Id. By contrast, in the instant case, the Legislature has imposed explicit time constraints for the Board to resolve complaints and provides a statutory process to extend such deadlines. The Board is not in violation of the statutory time limits imposed upon disciplinary actions.
Despite not being in violation of the statutory time limits imposed upon disciplinary actions, Petitioner has identified instances in which a board could potentially violate a licensee’s due process rights even though it is not technically in violation of statutory time limits. Petitioner asserts that if this Court denies his petition for a writ of prohibition, the Board could request multiple extensions for years to come. Admittedly, this Court has seen at least one instance in which a board has permitted a case to languish well past the statutory time limits without obtaining an extension to issue a final ruling. See State ex rel. Fillinger v. Rhodes, 230 W. Va. 560, 741 S.E.2d 118 (2013) (The Board of Examiners for Registered Professional Nurses repeatedly continued hearings without written agreements between the complainants and the Board to extend the time for a final ruling.) We take this opportunity to caution the Board that, although it is not in violation of the statutory time limits, we see no reason why this matter should not be resolved within the extension already granted, if not even sooner.
[13] "The requirements of due process are not reducible to a static formula, but rather are sensitive to the facts and circumstances of a given case." Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 n. 21 (1996). In the instant case, Petitioner relies upon the Board’s average time to resolve a complaint and the statute’s time constraints, which he describes as the Legislature’s "intent that all professional licensing investigations be completed within eighteen months for both due process and public safety reasons." However, Petitioner again fails to acknowledge that the Legislature clearly contemplated that some matters would not be resolved within eighteen months by tolling the time period for a final ruling "for any delay requested or caused by" a respondent in a complaint proceeding and by authorizing boards and complainants to "agree in writing to extend the time for the final ruling." W. Va. Code § 30-1-5(c).
[14] As we have previously concluded, "the flexibility required by due process doctrines and the range of variables that can affect fairness … preclude our imposing specific time limits" in certain cases. Hutchison at 156, 479 S.E.2d at 666. We believe that this is such a case, and we reject Petitioner’s argument that the Board through its actions to date, has violated his constitutional right to due process.
D. REMAINING HOOVER FACTORS
[15] Lastly, Petitioner argues that the remaining four factors enunciated in Hoover support the issuance of a writ of prohibition. We disagree. The first Hoover factor directs this Court to examine whether Petitioner "has no other adequate means, such as direct appeal, to obtain the desired relief." Syl. Pt. 4, in part, Hoover, 199 W. Va. 12, 483 S.E.2d 12 (1996). Petitioner acknowledges that there is a statutory right to seek judicial review of Board decisions. His impatience with the Board’s failure to act does not tip the weight of this factor in his favor.
We are likewise not persuaded by Petitioner’s arguments in support of the second factor, which directs this Court to examine "whether [Petitioner] will be damaged or prejudiced in a way that is not correctable on appeal." Id. Petitioner asserts that he has been damaged because he will be forced to wait and use the "ordinary judicial review procedure[,]" "continue to endure the cloud over his license and delay his business plans[,]" and "be compelled to go through a contested hearing and perhaps appeal from a final judgment." These complaints generally describe the disciplinary process to which every other licensee, certificate holder, and permittee of the Board is subject during a disciplinary action. We refuse to conclude that Petitioner is prejudiced because he will have to proceed through the Board’s disciplinary process. With respect to the fourth factor, Petitioner concedes that he cannot point to a "long record of untimely Board actions," and we, therefore, conclude that this factor does not warrant the issuance of a writ in this case. Finally, Petitioner generally asserts that his petition raises multiple issues of first impression regarding "the application of West Virginia Code § 30-1-5(c) and constitutional due process to cases in which a licensee files a self-report." Because we have concluded that the Board has not violated the statutory time limits imposed upon disciplinary actions and that Petitioner’s constitutional right to due process has not been violated by the Board, we reject Petitioner’s assertion that this matter raises multiple issues of first impression.
Because Petitioner has not prevailed, we deny his request for the Board to pay his reasonable attorney's fees and costs.
IV. CONCLUSION
For the foregoing reasons, the writ of prohibition is denied and the stay is lifted contemporaneously with the issuance of the Court’s mandate.
Writ denied.
JUSTICE WALKER, deeming herself disqualified, did not participate in the decision of this case
JUDGE GREGORY L. HOWARD, JR. sitting by temporary assignment.
JUSTICE BUNN concurs and reserves the right to file a concurring opinion.
JUSTICE WOOTON dissents and reserves the right to file a separate opinion.
JUDGE HOWARD dissents and reserves the right to file a separate opinion.
BUNN, Justice, concurring:
The majority correctly determines that, under the facts of this case, the West Virginia Board of Dentistry ("the Board") has not violated the applicable statutory time limitations for final resolution of a disciplinary action pursuant to West Virginia Code § 30-1-5(c).1a I further agree with the majority that, "through its actions to date," State of West Virginia ex rel. Jose Ravelo, DDS v. West Virginia Board of Dentistry, No. 23-431, slip op. at 18, — W.Va. —, 902 S.E.2d 159 (W. Va. May 24, 2024), the Board has not violated Dr. Ravelo’s constitutional due process rights.
However, I write separately to highlight the danger that in other circumstances, despite complying with the statutory time frames established in West Virginia Code § 30-1-5(c), the Board may extend the deadlines beyond the limits established by an individual’s constitutional due process rights. The risk of infringing upon these rights is particularly high in situations where the Board is also the complainant and extends its own deadlines, as it did here. Under another set of facts, the Board may grant itself one too many extensions and delay the proceedings for an unreasonable period of time.
As this Court has consistently warned, "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." State ex rel. O.H. v. W. Va. Bd. of Med., 238 W. Va. 139, 145, 792 S.E.2d 638, 644 (2016). Rather, "[t]he Legislature chose to enact explicit time restric- tions for a reason, and these time requirements are not matters of mere convenience or form." Id. (quotations and citation omitted). Pursuant to West Virginia Code § 30-1-1a, "[t]he fundamental purpose of licensure and registration is to protect the public …." We have previously explained, "[t]he 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." O.H., 238 W. Va. at 145, 792 S.E.2d at 644. Moreover, I emphasize that
[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. [State ex rel.]Fillinger[ v. Rhodes], 230 W. Va. [560,]1568, 741 S.E.2d[ 118, 126 (2013)] (Loughry, J., concurring).
O.H., 238 W. Va. at 145, 792 S.E.2d at 644 (first alteration in original). Just as these words had "equal application to the Board of Medicine" in O.H., they have equal application to the Board in this case. Id. While I agree with the majority that the facts of this case do not rise to a violation of Dr. Ravelo’s constitutional due process rights, the Board must be reminded that it cannot grant extension after extension to a complainant, especially when it is itself the complainant, nor can it give unreasonably lengthy extensions.
For these reasons, I respectfully concur with the majority’s opinion in this case.
Wooton, Justice, with whom Judge Howard joins, dissenting:
I respectfully dissent from the Court's denial of Jose Ravelo, DDS’s ("Dr. Ravelo") petition for a writ of prohibition to halt proceedings against him instituted by the West Virginia Board of Dentistry ("the Board"). In my view, the Board’s purposeful delay in bringing this matter to a conclusion, a delay resulting in the proverbial sword of Damocles hanging over Dr. Ravelo for three years rather than the eighteen-month period set forth in the relevant statutes, denied him due process of law. Because the Board’s delay clearly violated the relevant statutory framework for disciplinary proceedings against a dental professional, and further because the resultant damage and prejudice to Dr. Ravelo is not correctible on appeal, extraordinary relief is appropriate. See Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996) (setting forth five factors to examine in determining whether extraordinary relief issuing a writ of prohibition is appropriate).
This Court has long held that
a license to practice a recognized profession is a valuable property right. Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953). Limitations on the enjoyment of that property right, coupled with a public reprimand and fine, imposed by a disciplinary body as in this case, clearly prejudice substantial rights of the holder of that property right and justify careful scrutiny by reviewing courts of the proceedings resulting in such action.
Modi v. W. Va. Bd. of Med., 195 W. Va. 230, 242, 465 S.E.2d 230, 242 (1995); see also Iyer v. W. Va. Bd. of Med., No. 17-0279, 2018 WL 2175546, at *4 (W. Va. May 11, 2018) (memorandum decision) ("It is well settled that a ‘physician has an interest in his or her medical license which is a valuable right that may not be revoked without some form of due process being accorded to the physician.' ") (citation omitted). In order to protect these rights, the Legislature has established strict time limits governing the investigation and prosecution of complaints against licensed professionals, including dental professionals. See W. Va. Code § 30-1-5(c),1b -4-192b (2023). As we have noted, these strict time limits protect multiple interests:
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.
State ex rel. O.H. v. W. Va. Bd. of Med., 238 W. Va. 139, 145, 792 S.E.2d 638, 644 (2016).
Broadly speaking, the statutory framework gives the relevant licensing board eighteen months in which to investigate, prosecute, and resolve a complaint, assuming the timely issuance of a status report and absent an agreed-upon extension of time. See text infra. Significantly, this time frame is jurisdictional. See State ex rel. Miles v. W. Va. Bd. of Registered Pro. Nurses, 236 W. Va. 100, 105, 777 S.E.2d 669, 674 (2015) ("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.").
In the instant case, the Board has attempted to enlarge the time in which it must resolve the complaint against Dr. Ravelo by giving itself an extra five months on the front end of the case and then an extra year on the back end. The delay at the front end of the case is unauthorized under the relevant statutes, and the Board’s justifications for its actions, as discussed infra, are wholly unconvincing. The delay at the back end of the case, even if authorized – which is, at best, debatable – violated Dr. Ravelo’s constitutional rights under the facts and circumstances of this case. I address these issues in turn.
First, there are only two ways in which a licensing board’s investigation into the conduct of a licensed professional may begin. As fully set forth supra in note 1, West Virginia Code section 30-1-5(c) provides, in relevant part, that "[e]very 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 and the Respondent[.]" (Emphasis added). Where no complaint has been received by the Board, it may choose a second option: to "initiate a complaint … upon receipt of credible information and … cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules promulgated pursuant to this article." Id. § 30-4-19(a) (emphasis added). Thus, on September 9, 2021, when Dr. Ravelo self-reported the complications which his patient had experienced, the Board could have done one of two things: it could have treated the self-report as a complaint and proceeded with an investigation, or it could have initiated its own complaint and then proceeded with an investigation. Whichever option the Board chose, the statutory clock would have started to run on September 9, 2021; the status report would then have been due on or about March 9, 2022; and the Board’s final order resolving the case would have been due on or about March 9, 2023, absent an agreed-upon extension of time. See W. Va. Code § 30-1-5(c).
But the Board chose neither of these options; instead, it placed the cart before the horse by initiating an investigation in the absence of a complaint, thereby avoiding the strict statutory timeframes. Thereafter, its investigation was concluded on or about February 14, 2023, at which time it informed Dr. Ravelo that it was opening a complaint against him. By proceeding in this fashion, the Board awarded itself an extra five months in which to proceed to final resolution, because the status report was now due on or about August 14, 2023, rather than on or about March 9, 2023.
The Board justifies its action in launching an investigation in the absence of any complaint, either received from a third party or initiated sua sponte, in two ways. First, it argues that Dr. Ravelo’s self-report could not be considered a complaint because Dr. Ravelo was simply reporting the existence of a medical complication that arose after a surgery, while denying that his care of the patient fell below the applicable standard of care. I agree with the Board that the self-report was not a complaint and could not reasonably have been treated as a complaint, because to find otherwise would suggest that the mere existence of a complication is prima facie evidence of malpractice warranting professional discipline and/or civil liability, a proposition that no one would endorse.
The Board goes a step too far, however, in asserting that it could not have initiated a complaint upon receipt of Dr. Ravelo’s self-report because West Virginia Code section 30-4-19(a) permits it to do so only on receipt of "credible information," and the Board could not determine whether the self-report was "credible" until after it conducted an investigation into the case. I find this argument to be both logically and legally preposterous. Is the Board seriously suggesting that a dentist’s self-report of a complication, submitted by counsel, doesn’t pass a threshold credibility test simply because the dentist denies negligence on his part? In this regard, the Board appears to be confusing what is necessary to initiate a complaint against a dentist, thus authorizing an investigation, with what is necessary to establish probable cause to charge the dentist with a violation of the standard of care in treating his or her patient. The fact that the dentist’s self-report doesn’t establish probable cause for a charge does not mean that the self-report isn't credible information upon which to base the initiation of a complaint. 3b Additionally, the very fact that Dr. Ravelo’s self-report was not timely submitted, see W. Va. Code § 30-19(g)(18),4b was a sufficient basis in and of itself for the Board to initiate a complaint without further delay.
Simply put, the statute does not authorize the Board to conduct an investigation in the absence of a complaint, whether received from a third party or initiated by the Board, but that is exactly what happened here. Notwithstanding the majority’s after-the-fact attempt to construe clear statutory language in such a way as to provide an escape hatch for non-compliance, the statute says what it says: the Board can only act on a complaint, not on a hunch or a suspicion or an educated guess. However, this error, standing alone, would probably not justify this Court’s grant of extraordinary relief pursuant to the well-established factors first enunciated in State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).5b But the error does not stand alone: having given itself an unauthorized five-month period at the front end, the Board then slow-walked the proceedings right up to the cusp of the statutory deadline for resolving the case, at which point it asked itself for, and then granted itself, a one-year extension of time.
A review of the following facts demonstrates beyond argument that the Board was dilatory in getting this matter resolved.
On September 7, 2021, Dr. Ravelo informed the Board, through a letter by counsel, that his patient had experienced complications resulting in his hospitalization.
On October 15, 2021, the Board subpoenaed the patient’s hospital records.
On or about February 14, 2022, the Board informed Dr. Ravelo that it was opening a complaint, alleging that (a) he should have consulted the patient’s physician about whether or not to keep him on Plavix before the surgery, and (b) he nicked an artery during the surgery. Dr. Ravelo was given thirty days to respond.
On March 15, 2022, Dr. Ravelo filed a timely response, denying that he violated any standards of care.
On April 11, 2022, Dr. Ravelo submitted a report from an expert, a board-certified oral surgeon, opining that he did not violate any standards of care.
On July 12, 2022, the Board subpoenaed the patient’s CT scans, which Dr. Ravelo submitted three days later.
On July 26, 2022, the Board issued a status report,6b which simply stated that the Board was still reviewing and considering the matter.
In August, 2022, the Board received an expert report from a physician who opined that Dr. Ravelo had violated the standard of care in his treatment of the patient.
On October 21, 2022, the Board found that probable cause existed to support charging Dr. Ravelo with a violation of the standard of care.
On November 25, 2022, the Board received a complaint against Dr. Ravelo in a wholly unrelated matter: the mother of a juvenile patient complained that Dr. Ravelo had "yelled at" the juvenile, who was apparently afraid of needles, and extracted only one tooth when he was supposed to extract six. According to its brief (the record being silent on this matter), because of the complaint involving the juvenile the Board decided not to offer a consent decree to Dr. Ravelo in the instant case, and to essentially stay the matter while awaiting the results of its investigation into the unrelated complaint.
On May 15, 2023, after six months of silence and inaction on the Board’s part, Dr. Ravelo served a Freedom of Information Act ("FOIA")7b request for documents related to him and others in his practice, which according to the Board required "extensive review and redaction to ensure … privacy.]"8b On June 16, July 5, July 18, and July 28, 2023, the Board produced the documents, as well as the patient’s hospital records that it had received in or about October, 2021, almost two years earlier, and the report of its expert that it had received in August, 2022, almost a year earlier.
On June 28, 2023, the Board asked itself for an additional twelve months to "complete its investigation and issue a final ruling on … [its] complaint," which it then, unsurprisingly, agreed to, thus extending the statutory eighteen-month time frame to thirty-three months.
Dr. Ravelo argues that the delay in this case, as detailed above, violated his right to due process of law. After giving this matter the "careful scrutiny" required where an impingement on property rights is at issue, I agree. See Modi, 195 W. Va. at 242, 465 S.E.2d at 242; see also Syl. Pt. 4, Frazier v. Derechin, 246 W. Va. 36, 866 S.E.2d 101 (2021) (" ‘ "A driver’s license is a property interest and such interest is entitled to protection under the Due Process Clause of the West Virginia Constitution." Syl. Pt. 1, Abshire v. Cline, 193 W. Va. 180, 455 S.E.2d 549 (1995).’ Syllabus Point 2, Straub v. Reed, 239 W. Va. 844, 806 S.E.2d 768 (2017)."). In an analogous context, this Court has held that in examining whether a "delay was unreasonable or excessive under the circumstances … any prejudice to the licensee shall be a factor considered in making [such a] determination[.]" Warner v. Reed, No. 15-0229, 2016 WL 870614, at *4 (W. Va. Mar. 7, 2016) (memorandum decision) (citing Syl. Pt. 4, Holland v. Miller, 230 W.Va. 35, 736 S.E.2d 35 (2012)). In this case, all of the delay has been attributable to the Board, not to Dr. Ravelo, despite the Board’s attempt to characterize a routine FOIA request as some sort of "procedural delay or obstructive action." See supra note 8. Further, the Board’s action in asking itself for, and then granting itself, a full twelve-mouth extension of time – with Dr. Ravelo having no opportunity to object – smacks of unfairness. Finally, it cannot be gainsaid that the unwarranted delay in this case has caused prejudice; having the aforementioned sword of Damocles hanging over him for more than three years has caused Dr. Ravelo severe emotional distress, and he informs us that his expansion plans have been cast into limbo as he waits for a decision that will affect his professional future.
This is precisely the type of outcome that the Legislature sought to avoid when it set strict time limits on the investigation and prosecution of licensed professionals for alleged violations of the standard of care. In my view, those time limits should be enforced, not winked at.
For all of these reasons, I respectfully dissent. I am authorized to state that Judge Howard joins me in this dissenting opinion.