State v. W. Va. Bd. of Dentistry

902 S.E.2d 159

STATE of West Virginia EX REL. Jose RAVELO, DDS Petitioner,

v.WEST VIRGINIA BOARD OF DENTISTRY, Respondent.

No. 23-431

Supreme Court of Appeals of West Virginia.

Submitted: February 7, 2024

Filed: May 24, 2024

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.¹ 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.² 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.

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.³ 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."

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.⁴ 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.

On July 19, 2023, Petitioner filed the petition for a writ of prohibition that is the subject of this action.⁵

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...