Sword Of Damocles

The West Virginia Supreme Court of Appeals declined to end an investigation into a dentist’s treatment of a patient

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.

Petitioner had performed oral surgery on a 74 year old man who was subsequently hospitalized

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.”

An investigation was then initiated

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

Basis to investigate

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.”

The court concludes that the investation had not exceeded statutory time limits or denied Petitioner due process.

Justice Bunn concurred

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.

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.

Time limits

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-month 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.

(Mike Frisch)