Professional Documents
Culture Documents
COMES NOW, Walter R. Wolfe, M.D. (“Dr. Wolfe”), by and through undersigned
counsel, and moves for temporary restraining order and injunctive relief against the Mississippi
Board of Medical Licensure (“MBML” or “the Board”), and in support of his Motion would show
the following:
Mississippi. He has at all pertinent times been a physician licensed to practice medicine in the
pursuant to Miss. Code Ann. §73-43-1. Its business offices are located in Hinds County,
Mississippi. The Board has at all pertinent times governed physician licensure and discipline
issues pursuant to Miss. Code Ann. §§73-43-1 through 73-43-17, 73-25-1 through 73-25-95. The
Board has already appeared in this action and may be served over the MEC system.
3. This Court has jurisdiction over this matter in accordance with the Mississippi
Constitution, Article 6 §159, and Miss. Code Ann. §§ 73-25-95 and 73-25-27.
4. Venue in this Court is proper pursuant to Miss. Code Ann. §73-43-17 and other
applicable provisions.
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FACTS
5. Dr. Wolfe has been practicing medicine in the field of obstetrics and gynecology
6. Over the course of medical practice extending over thirty (30) years in Mississippi,
until 2019, Dr. Wolfe has never been the subject of any investigation by the MBML, nor has he
7. Dr. Wolfe is not aware of a single patient complaint having been lodged against
him to the Board until this investigation was announced to him in a surprise office visit by the
Board in February, 2019, other than one complaint that was investigated and dismissed for lack of
merit.
8. During his 30+ year career, Dr. Wolfe has delivered over 16,000 children. He has
where he is one of only two Ob/gyns practicing in that community and the only one that offers
VBAC’s (vaginal births after deliveries), a delivery option he is known for throughout the state.
Dr. Wolfe is also a primary source of referral for doulas and midwives and is the only physician
most will refer to because of his respect for the desires of patients of these referring providers. Dr.
Wolfe is also the primary transport obstetrician for Yazoo, Holmes, Attala, and west Leake
Counties. Again, these are all underserved areas where patient access to care is more limited. Dr.
Wolfe is also the main admitting physician to Merit Health Madison, and the administration is
10. According to charges delivered to Dr. Wolfe yesterday, July 10, 2019, the MBML
initiated an investigation of Dr. Wolfe in November, 2018. The MBML did not make Dr. Wolfe
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aware of its investigation until they appeared unannounced in his office in February of 2019 to
11. Even in spite of this lack of notice and lack of articulation of any charges, Dr. Wolfe
offered his full cooperation in this now 8-month old investigation, having sat with MBML
investigators, MBML counsel, and Executive Director, Dr. Ken Cleveland, for almost three (3)
hours voluntarily on April 11, 2019. Dr. Wolfe and his counsel have also voluntarily cooperated
in providing requested documents to the MBML since becoming aware of the 8-month old
investigation.
12. The MBML, until yesterday, has been elusive about the specific focus of its
investigation, having never even charged Dr. Wolfe at all until July 10, 2019. Prior to that time,
the MBML merely indicated that the nature of its investigation was primarily related to Dr. Wolfe
allegedly having had a personal relationship with a patient or patients, as well as some
know from the charges delivered yesterday one allegation is that Dr. Wolfe is accused of kissing
a pregnant patient as she entered ultrasound in November of 2018. What the Board fails to disclose
in this charge is that at the time of the kiss, the patient was Dr. Wolfe’s fiancé and is presently his
wife.
13. Having obtained at least six (6) patient charts from Dr. Wolfe in February of 2019,
to ascertain whether Dr. Wolfe has acted inappropriately with patients (which appears to include
kissing his fiancé), the MBML has had all relevant information now for almost five (5) months. In
other words, these charts on the patients who are the subject of this inquiry were obtained in
February, 2019, from Dr. Wolfe during the unannounced visit and have been available to MBML
14. The MBML has likewise had in its possession since at least February of 2019 the
prescribing history of Dr. Wolfe as to all of Dr. Wolfe’s patients, including the persons of interest
available to MBML through a database. In other words, the MBML does not need Dr. Wolfe or
his permission to retrieve it. Accordingly, all pertinent information as to the topics of the
investigation have been in the possession of the MBML for months. That is, the MBML knew the
patients’ names who were the focus of the inquiry; it had their charts; and it had their prescribing
history. All charges asserted against Dr. Wolfe for the first time on July 10, 2019, were derived
from this information in the Board’s possession dating back to at least February, 2019. Yet the
15. Dr. Wolfe also agreed to sit for an interview to answer questions related to this
investigation. That interview occurred on April 11, 2019, and present were Dr. Ken Cleveland,
two investigators employed by the MBML, and counsel for the MBML. Hence, by April 11, 2019,
the Board not only had all relevant data, it had the story from Dr. Wolfe as he answered all but one
of their questions during an interview that lasted approximately three (3) hours.
16. Since the Board started investigating in late 2018, and throughout the 8-month
inquiry, Dr. Wolfe has continuously practiced medicine. The Board, having had in its possession
all relevant information on the patients who are the subject of this investigation for months, made
no claims during these months that Dr. Wolfe posed any threat or risk to patients, certainly not an
17. Similarly, at no time during Dr. Wolfe’s interview on April 11, 2019, or in the
immediate aftermath, did the Board state or insinuate that it deemed Dr. Wolfe to be a threat to
patients.
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18. Dr. Wolfe therefore continued his medical practice after his interview on April 11,
2019. He also practiced all of May, 2019, without objection by the Board. He practiced
throughout June, 2019, as the Board had not charged him and certainly had not notified him that
it deemed him to be an immediate danger to patients. The same occurred in July, 2019, as part of
another month went by after the interview. Again, the Board had held possession of the relevant
19. Then on July 10, 2019, a Board investigator, along with a large armed body guard,
and Board Executive Director, Dr. Ken Cleveland, charged into Dr. Wolfe’s clinic unannounced
and served him with charges, including the allegation that he (Dr. Wolfe) posed an immediate
threat and danger such that his license was suspended immediately. This, in spite of the fact that
the Board had held all relevant information for months without even charging Dr. Wolfe, much
less labeling him an immediate threat and danger. This was all precipitated the most public way
possible, in front of patients, such that the story immediately spread across social media and
20. The paperwork delivered to Dr. Wolfe during the surprise visit of July 10, 2019,
failed to explain why the Board deemed Dr. Wolfe a sudden danger on July 10, 2019, when it did
not so deem him upon review of medical charts and prescribing history in February, 2019, or after
21. The sudden shutdown of Dr. Wolfe’s OBGYN clinic and practice obviously poses
immediate and pressing problems for Dr. Wolfe, as well as his active patients. Dr. Cleveland
apparently recognized this problem at some point during his surprise appearance on July 10, 2019,
as he agreed that it would be prudent for Dr. Wolfe to continue following an active labor patient
on July 10 and also to follow and discharge his present post-op patients. It is hard to understand
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is why a doctor who is an immediate danger to patients should be allowed to perform any medical
care at all after being so identified as a danger. Dr. Cleveland’s own actions on behalf of the Board
in this respect make clear that Dr. Wolfe is no threat whatsoever to his active patients or any other
patients; otherwise, Dr. Cleveland would not have permitted Dr. Wolfe to continue limited medical
practice.
22. What is even harder to understand is why the Board all of a sudden identified this
alleged imminent danger on July 10, 2019, having had all relevant information available to it for
months and months prior to July 10, 2019, dating back to at least February, 2019. In other words,
the alleged proof of Dr. Wolfe’s dangerous propensities has been in the Board’s possession for
months prior to July 10, 2019, the date upon which he was suddenly declared an imminent threat.
23. The Board’s behavior, and particularly its timeline of action (or rather, inaction),
makes clear there is no imminent danger whatsoever. If there had been a danger as alleged, the
24. The Board’s Draconian actions of abruptly charging Dr. Wolfe and suspending his
license have nothing to do Dr. Wolfe’s medical abilities or the Board’s concerns about his patients.
Rather, it has everything to do with seeking tactical advantage and thwarting due process by
creating a process of guilty until proven innocent completely inconsistent with what is required by
Miss Code 73-25-27 and governing case law discussed infra. The law requires an evidentiary
hearing before a suspension. The Board has convicted with no hearing, in the most public way
imaginable, in a calculated attempt to ruin Dr. Wolfe before he can utter the first word or
evidentiary witness in defense. Many of the charges utter on the preposterous – for example, the
accusation of sexual assault against Dr. Wolfe for kissing his fiance before her ultrasound.
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25. The Board’s springing the emergency suspension is a denial of due process, as well
as a conviction of an accused who was not even been charged, much less tried, until the very day
proceedings. Caine v. Hardy, 943 F.2d 1406, 1413 (5th Cir. 1991). This includes an assurance
that the proceedings will be fair, free from suspicion, and without oppression. See Miss. State
Board of Health v. Johnson, 19 So. 2d 827 (Miss. 1944). This due process is also protected by
Miss. Code 73-25-27, which states that the Board has no right to take action against a licensee
without the hearing having occurred first: “The State Board of Medical Licensure after notice and
opportunity for a hearing to the licensee, is authorized to suspend or revoke for any cause named
in this chapter … .” (emphasis added). The hearing process, in turn, requires fair notice to the
doctor, an orderly hearing, and a process for evaluating the evidence and charges of the Board. See
id.
27. Here, the Board has cleverly and improperly invoked Miss. Code 73-25-89 to claim
“imminent danger.” By declaring Dr. Wolfe to be an imminent danger, the Board can create a
chaotic process where (a) Dr. Wolfe’s license is suspended immediately; and (b) a hearing is held
in only fifteen (15) days. Both (a) and (b) are patently unfair to Dr. Wolfe.
28. First, there is no immediate danger, and the Board itself proves this by its inaction.
Yet by declaring the danger, the Board gains the tactical advantage of putting Dr. Wolfe in duress
and threatening his livelihood before the evidentiary hearing is even held.
29. As to (b), the Board has been planning these charges and actions against Dr. Wolfe
since at least November, 2018 (according to its charges delivered July 10), so it has spent eight
months planning its case in advance before ever disclosed the charges. So, the Board gets eight
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months to plan a legal attack, while providing Dr. Wolfe only fifteen (15) days to mount a defense,
all while his reputation is slandered across the state newspapers and social media.
30. Had the Board perceived imminent danger and immediate threat, it should have
suspended Dr. Wolfe months and months ago. The Board has built its case over an extended period
of time in a calculated way, never asserting any charges or providing any details to Dr. Wolfe until
July 10, 2019. By asserting this immediate danger claim under Miss Code Ann. § 73-25-89, the
Board is intentionally depriving Dr. Wolfe of his constitutional rights to due process. In other
words, these proceedings should be occurring under Miss. Code Ann. §73-25-27, which requires:
31. The Board’s action is, quite frankly, tactical bad faith. It is the kind of oppressive
behavior that calls into question whether it can even conduct a hearing consistent with Johnson,
see id., which requires the Board to be even, impartial, and beyond suspicion.
32. Dr. Wolfe is entitled to practice medicine unless and until he is adjudicated as
having breached governing rules or standards. Miss. Code Ann. §73-25-27 and the Miss.
Constitution assure him of this due process protection. Again, he was not even charged with any
violations until July 10, 2019, and he certainly has not been adjudicated as guilty of these charges.
33. The Board’s acts of administering the penalty before the trial are inconsistent with
due process, inconsistent with governing statutory law, and inconsistent with the Board’s own
rules. Again, this heavy-handed behavior further evidences a bias that calls into question the
Board’s ability to adjudicate fairly the charges it has made. Clearly, the Board has made its
decision without permitting Dr. Wolfe to present a defense. This is the essence of arbitrary and
capricious action.
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34. Accordingly, Dr. Wolfe seeks this Court’s intervention to issue a TRO and
injunctive relieve permitting Dr. Wolfe to continue his medical practice in the status quo until the
charges can be substantively adjudged pursuant to a procedure that meets due process, before a
fair tribunal.
35. Miss. R. Civ. P. 65 permits this Court to issue injunctive relief, including in the
form of a temporary restraining order, when the following legal factors are satisfied: (a) there is a
substantial likelihood that the movant will prevail on the merits; (b) the relief is necessary to
prevent irreparable harm; (c) the threatened injury to the movant outweighs the harm that may
arise to the non-moving party; and (d) granting the relief is consistent with the public
36. These factors are met here. Dr. Wolfe is likely to prevail on the merits as the only
question is whether he is an imminent danger. Because the MBML has sat on relevant information
for months without declaring an emergency or imminent danger, there is no imminent danger. And
therefore under Miss. Code Ann. § 73-25-89, MBML does not have the right to suspend Dr.
Wolfe’s license. Hence, Dr. Wolfe is likely to prevail on the merits or the immediate suspension
issue, and he should be entitled to the process outlined in § 73-25-27. As to irreparable harm,
clearly Dr. Wolfe’s reputation has already been slandered before any hearing or the merits has
occurred. The Clarion Ledger posted an article outlining one side of the story this morning, July
11, 2019. The article obviously does not detail that one of the patients Dr. Wolfe is accused of
sexually assaulting is his wife, who he kissed as she entered ultrasound. Obviously, reputational
harm will arise to Dr. Wolfe which cannot be monetarily recovered. In addition, Dr. Wolfe has
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active patients under his care who need his immediate attention. Medical harm to active patients
is threatened by the Board’s abrupt actions. Next, the Board will suffer no harm if the equitable
relief is granted, and the harm to Dr. Wolfe and his patients far outweighs any potential harm to
the MBML. Finally, the public interest favors enforcement of the law and the right to due process.
That is, the public interest is in having matters heard substantively before penalties are enforced.
37. To elaborate further on the factors, Dr. Wolfe’s practice is at stake. Once his doors
close, patients will not only move to other doctors, but they will question why Dr. Wolfe abruptly
abandoned their care. It will be impossible to repair the damage done by an abrupt closure. In
addition, Dr. Wolfe’s legal ability to recapture the financial losses accompanying this abrupt
closure will be limited. The Board’s actions are not subject to the same legal standards as private
companies or litigants, and cases against the Board are governed by higher standards, which would
make recovery and recompense limited and difficult. In short, once the practice doors are closed,
reopening to recreate the same practice is virtually impossible. Those losses cannot be reversed
because the Board cannot and will not repair the damage even if its actions are determined to be
wrong. Moreover, the full damage more than likely they cannot be fully defined or recovered.
The present damages being inflicted against Dr. Wolfe as of the filing of this Motion are serious;
they will necessarily grow and lead to continuing irreparable harm. The effect on the patients of
Dr. Wolfe is also an important consideration. Dr. Wolfe’s patients – all of them – will have to
transition their care, which could cause medical problems for those in acute situations. In addition,
these patients, or some of them, may not have access to other quality medical care as Canton and
the other areas of practice for Dr. Wolfe are under-served areas.
38. By contrast, no irreparable harm will accrue to any party or person if the injunctive
relief is provided. Dr. Wolfe has been practicing medicine in Mississippi for over thirty (30) years
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with no prior suspension or investigative activity by the MBML. Dr. Wolfe is fully capable of
continuing to practice. His continued practice poses no harm to MBML, nor can MBML articulate
any harm to any patient that will arise through his continued practice. Indeed, the allegations
regarding the alleged untoward behavior date back for years. Moreover, many of the claims by
MBML refer to “unidentified patients” or patients who have specifically said they have no
complaint whatsoever against Dr. Wolfe. See infra. If Dr. Wolfe posed an imminent threat,
MBML would have closed his doors at least by February, 2019, when it had all relevant
information.
39. MBML’s feigned “emergency,” is disproved by its own actions. The MBML has
been investigating Dr. Wolfe since late 2018. Had an emergency situation or imminent danger
existed, the MBML would have suspended Dr. Wolfe’s license at the outset of the investigation,
upon receipt of the initial complaint(s) upon which the investigation was based. The MBML has
waited months and months to suddenly declare imminent danger, and its own inaction is an
admission that the situation is not, and never has been, urgent.
40. MBML is only permitted to suspend a physician’s license without hearing when
“the board determines that evidence in its possession indicates that a physician’s continuation in
practice or unrestricted practice would constitute an immediate danger to the public…” Miss. Code
Ann. § 73-25-89; see also § 73-25-83 (“The Board shall have authority…to discipline a physician
licensed or otherwise lawfully practicing within this state who, after a hearing, has been adjudged
41. The statutory criteria is not met for suspension without hearing for all the reasons
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42. This calculated “emergency” is aimed at destroying Dr. Wolfe’s practice and
depriving him of his due process rights under Art. 3, Section 14 of the Mississippi Constitution to
a fair and impartial hearing prior to the imposition of the penalty. By enforcing the penalty before
the trial, the MBML is un-leveling the playing field. The MBML has acted in an arbitrary and
capricious manner by declaring imminent danger, and Dr. Wolfe should be protected by this Court
43. This is not the first heavy-handed act of the MBML, nor the first signal that the
MBML is aiming to execute the accused before a hearing is even permitted. The behavior set
forth below again calls into question the Board’s competence to be a fair tribunal in this matter.
a. Most fundamentally, Dr. Wolfe’s patients who are the subject of the MBML’s claims
against Dr. Wolfe have not even complained, and, in fact, they dispute that Dr. Wolfe
should be charged. Specifically, Patient A.W. (mentioned in the Board’s charge of July
10) has objected to the Board’s pursuit of any claims related to Dr. Wolfe’s treatment of
her, and she has further testified by Affidavit that Dr. Wolfe is a good doctor and that she
has no complaints against him. Patient A.W. has stated she has no complaint against Dr.
Wolfe, professional or otherwise, and has at all times persisted that the Board leave her out
of its investigation, having rebuffed numerous attempts by the MBML to coerce her against
b. Similarly, the MBML has recently sent a subpoena to Dr. Wolfe’s office for records as to
Patient K. Patient K has not been a patient of Dr. Wolfe for many years. Patient K has
testified by Affidavit that she objects to the Board’s review of her medical records. Patient
K has further stated in that Affidavit that she has no complaint against Dr. Wolfe,
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c. Next, the MBML is using a complaint from Patient A.T. to justify its ongoing investigation
and charges. Patient A.T.’s complaint is dated October of 2013. This Complaint sat in the
office of the MBML for five years with no action. How can a five-year-old complaint that
was ignored by the MBML all of sudden create the emergency or imminent danger now
d. The second patient complaint upon which the MBML is purporting to investigate and
charge was made by patient L.D. This patient, upon information and belief, has advised
the MBML that she does not desire to pursue this complaint. Patient L.D. has also been
in recent contact with Dr. Wolfe’s office requesting additional medical care from Dr.
Wolfe, having further stated that he is a “good doctor.” Why would Patient L.D. desire to
e. Independently, this entire investigation has been conducted without proper notice or fair
surprise. Rule 1.3 of the Board’s administrative rules requires the Board (a) to provide a
copy of any complaint made against Dr. Wolfe, and (b) inform the licensee of the nature
and purpose of the investigation. Yet instead of providing this requisite notice, the Board
sent investigators to Dr. Wolfe’s office and demanded medical charts without even
advising him that an investigation was ongoing nor advising him as to the nature and
purpose of the investigation as required by both Rule 1.3 and Miss. Code § 73-43-11. This
law requires notice to a licensee when he is under investigation, but certainly if documents
are being requested, the licensee is entitled to know why. In fact, while Miss. Code § 73-
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25-28 contemplates that the Board has a right to examine records in the course of an
investigation, it also states that the right exists only upon “reasonable cause” and further
the statute requires documentation of the reasonable cause be provided to the physician
prior to entry. It further states that the Board shall inspect “at a time convenient for all
parties.” Here, the investigators simply appeared at Dr. Wolfe’s office, demanded records,
without notice, without providing reasonable cause, and took same. This is not compliant
f. As set forth above, one of the allegations of the MBML pertains to Dr. Wolfe kissing his
fiancé prior to her ultrasound. To allege this act in these circumstances is a physical or
g. As to numerous allegations received just yesterday, July 10, about improper prescribing of
medications to patients such as Dr. Wolfe’s fiancé the Board has had this information
through the prescribing history database since at least February, 2019. Were Dr. Wolfe a
dangerous prescriber, the Board would have addressed it in February of 2019. It has
unfettered access to the prescribing database and has had this information for months. The
MBML did not address the issue in February, 2019, because there was no danger, and it is
only declaring an imminent danger now to gain procedural advantage and sway public
44. The equities in granting the requested relief completely favor Dr. Wolfe. Taking
the license is Draconian, tactical, oppressive, unwarranted, and not in accord with the way an
45. In addition, the public interest would be served by granting the proposed temporary
restraining order and injunction. Due process protects Dr. Wolfe’s rights to practice medicine, as
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he has done without interruption for over thirty (30) years, unless and until he is found to have
violated some law that requires reprimand or suspension. There has been no such finding. There
was not even a charge levied against Dr. Wolfe until he was ambushed with the accompanying
suspension on July 10, after the investigation had been ongoing since November, 2018.
46. Dr. Wolfe’s practice serves the Canton, Mississippi, area, as well as other under-
served areas. His patients demand constant and ongoing care for labor and delivery, as well as
acute gynecological medical problems. His patients who are forced to undergo abrupt transition
could very well be in danger if he is not permitted to continue practicing medicine. Dr. Wolfe’s
sudden, unexpected departure from the practice of medicine is not only an extreme inconvenience
to his patients, but those patients with critical or specialized needs could be in danger.
47. It is in the public interest that medical practitioners who have been practicing for
thirty (30) years not be blindsided with feigned emergency as justification for abrupt suspension
of their licenses. The medical community has distinct interest in an orderly process such that this
type of suspension should occur only when the MBML truly can identify an immediate emergency
or threat. The public interest requires the requested relief and requires in this case that the
48. Dr. Wolfe prays for a temporary restraining order and/or injunction as follows:
(a) Preserving the status quo by enjoining the MBML from suspending Dr.
(b) Enjoining all further action by the Board to the detriment of Dr. Wolfe and
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WHEREFORE, PREMISES CONSIDERED, Dr. Wolfe requests that the Court enter a
Temporary Restraining Order and/or Preliminary Injunctive Order and/or set a hearing for and
Respectfully submitted,
OF COUNSEL:
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CERTIFICATE OF SERVICE
I, C. Maison Heidelberg, attorney for Walter Wolfe, M.D., do hereby certify that I have
this day served a true and correct copy of the above and foregoing document via Court’s ECF
Stanley T. Ingram
Robert Davis House
Biggs, Ingram & Solop, PLLC
P.O. Box 14028
Jackson, MS 39236-4028
singram@bislawyers.com
dhouse@bislawyers.com
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