CHARLESTON – The West Virginia Supreme Court of Appeals said in a ruling last week that the state Board of Registered Professional Nurses failed “almost entirely” to comply with state code in resolving a complaint against a former Parkersburg-area nurse.
Lisa Miles petitioned the court, seeking a writ prohibiting the board from proceeding on a complaint against her nursing license.
Miles, who received her nursing degree in 2010, worked as a registered nurse in the emergency room at St. Joseph’s Hospital -- now known as Camden-Clark Hospital -- in Parkersburg from June 2010 until April 2013, when she was terminated for allegedly violating the hospital’s narcotic waste policies.
After self-reporting her termination, the board issued a notice of complaint on April 2, 2013.
In her petition, Miles asserts the board’s failure to resolve the complaint against her within one year from the date of an interim status report divests it of jurisdiction to proceed.
The state’s high court, in a 13-page opinion, sided with Miles and dismissed the complaint against her.
“We conclude that the Board in this instance has exceeded its jurisdiction by failing, almost entirely, to comply with the statute governing its procedural handling of complaints,” Chief Justice Margaret Workman wrote for the court. “Not only did the Board fail to comply with the statute, but it failed, inexplicably, to take heed of this Court’s holding in Fillinger which was directed explicitly to this Board.
“The Board’s refusal to strictly comply with the very straightforward requirements in the statute seems to evidence a blatant disregard for both the Legislature’s and this Court’s explicit instructions on how these matters should be handled, at worst, or a pattern of lackadaisical pursuit of complaints by this Board, at best.”
Workman continued, “Either way, we are dismayed to note that in addition to divesting it of jurisdiction, the Board’s actions in this case present the seldom-seen ‘persistent disregard for either procedural or substantive law’ likewise warranting a writ of prohibition.”
An audit of Miles’ medical records demonstrated that on 11 occasions she pulled the narcotic Dilaudid without a physician’s order, on three occasions pulled it for patients who had already been discharged from the ER where she was working, and on nine occasions entered orders for the drug on behalf of a physician.
Camden-Clark asserted that in these instances, Miles did not properly chart that the drug had either been “not given” to the patient or “wasted,” as required by hospital policies.
Miles, who currently works at Jackson General Hospital and has had no other complaints against her license, contends that she did not divert the drug, but rather the errors were occasioned by her lack of sufficient training on the electronic medication dispensation software she was required to use.
On Aug. 14, 2013, just more than four months after the complaint was filed, the board issued a status report to Camden-Clark via regular mail, stating simply that the matter was “under continued investigation and review” by the board’s staff. The board did not provide an explanation for why the report was not sent via certified mail -- as is required by state code.
The board sent another status report on March 25, 2014, indicating the case was “currently being negotiated for settlement.” The board sent Miles a proposed consent decree days earlier; however, Camden-Clark has no record of receiving the letter.
On Oct. 10, 2014 -- one year and two months after the status report -- the board sent a letter to Camden-Clark, addressed internally to “complainant” with no mailing address explaining that it needed additional time to pursue the complaint against Miles.
“While the Board strives to resolve all complaints within the required time limits, there are some that out of necessity need a longer period of time. What this law doesn’t consider are the available resources to a government agency, the cooperation of the licensee and his or her attorney in attempting to resolve a complaint and other issues that affect the timeline this law requires,” the letter stated.
“Pursuant to this law, you as the complainant, and the Board have to agree to extend the time frame. By this letter the Board is informing you of the necessity to extend the time frame to continue pursuing the complaint against the licensee.
“If you disagree with this extension, please inform the Board in writing. This case is being set for hearing.”
The board sent the same letter again on Dec. 11, 2014, noting at the end that the case “is scheduled” for a hearing. The hearing was set for Jan. 20.
At Miles’ request, the Jan. 20 hearing was continued until Feb. 19. She then filed her petition with the state Supreme Court shortly before the February hearing was scheduled to take place.
“This Board must follow the procedural requirements of West Virginia Code § 30-1-5(c),” Workman continued in the court’s opinion, released Thursday. “Based upon the date of the status report and pursuant to statute, the Board had until August 14, 2014 to issue a final ruling unless an extension was obtained from Camden-Clark in writing.
“It unquestionably failed in both regards. Not only did the Board not resolve the matter by August 14, but it did not even acknowledge the need for an extension until after that deadline had passed. When it did so, rather than obtaining an agreement to extend with the complainant in writing, the Board simply told the complainant an extension was needed and presumed to have its agreement absent an objection in writing.”
The chief justice continued, “Under any rational construction, the Board’s letters regarding an extension merely offered a proposal to extend the deadline in writing and then attempted to shift the statutory duty solely onto Camden-Clark to provide written disagreement with an extension. This presumptuous approach created a complete nullification of the statutory requirements. Were the statute’s requirements so easily evaded, there would have been little reason for the Legislature to alter the language of the statute to provide for specific acts and deadlines.”
Workman went on to scold the board for its irresponsible handling of the matter.
“This Court would be remiss if we did not remind the Board of the gravity of its responsibilities to the public in light of its ostensible belief that the requirements of the statute are impracticable and therefore it need not comply with them or the mandate of this Court,” she wrote. “West Virginia Code § 30-1-1a plainly states that ‘the fundamental purpose of licensure and registration [of professionals] is to protect the public[.]’”
Workman pointed to a concurrence written by fellow Justice Allen Loughry in State ex rel. Fillinger v. Rhodes.
Loughry, in his 2013 opinion, specifically urged the board to take measures to ensure its inaction was not repeated:
“[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,” Loughry wrote.
“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.”
Workman added, “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.”
Lisa L. Lilly of Charleston law firm Martin & Seibert LC represented Miles. Attorney General Patrick Morrisey and Assistant Attorney General Greg Foster represented the board.
