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Case: 25CH1:19-cv-00509 Document #: 31 Filed: 07/12/2019 Page 1 of 4

IN THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI

IN RE: MISSISSIPPI STATE BOARD OF MEDICAL LICENSURE

CAUSE NO. G2019-509 G/2

REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING


ORDER AND INJUNCTIVE RELIEF

COMES NOW, Walter R. Wolfe, M.D. (“Dr. Wolfe”), by and through undersigned

counsel, and files this Reply in Support of his Motion for Temporary Restraining Order and

Injunctive Relief. In support therefore, Dr. Wolfe would show as follows:

1. The sole substantive issue before this Court is whether Dr. Wolfe presents imminent

danger sufficient to invoke Miss. Code Ann. § 73-25-89, which permits the MBML

to suspend his license without a hearing and then schedule a hearing within fifteen

(15) days.

2. The MBML’s Response only serves to highlight that its aggression against its own

member is a calculated effort to deprive Dr. Wolfe of due process and has nothing

to do with imminent danger.

3. The MBML supports its imminent danger position by arguing that Dr. Wolfe tried

to induce an abortion … in 2016. The Board further admits its investigation has

been ongoing since late 2018, and this Court is well aware that the Board had this

evidence in hand at the last hearing.

4. It follows that the Board has sat on this information for months and months. It is

one or the other: Dr. Wolfe has been imminently dangerous since 2016, and the

Board, fully aware of this information, did nothing about it; or the Board has not

ever characterized Dr. Wolfe to be imminently dangerous.


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5. The Board defends its inaction by saying it “felt” and “has felt all along” that Dr.

Wolfe is a threat to the public, but it had to be more certain before it took any action.

That is completely illogical. If Dr. Wolfe was a danger, the Board would have

suspended him months ago. The Board’s position on this issue is disingenuous.

6. The Board’s Response also gives away that the plan all along has been to deny Dr.

Wolfe due process by: (a) building a case against him over eight (8) months,

including the retention of high-powered experts (who have submitted affidavits and

have obviously been on retainer by the Board for a considerable time); (b) then

yank Dr. Wolfe’s license before they even charged him; (c) thereby forcing him to

a substantive hearing in fifteen (15) days. (They actually scheduled the hearing

fourteen (14) days later.)

7. Somehow the Board calls this process a “safeguard” for Dr. Wolfe.

8. The Board’s process and “safeguards” look nothing like those guaranteed by the

Mississippi Constitution, Miss. Code Ann. §73-25-27, and Johnson, cited supra.

9. Finally, the Board blames Dr. Wolfe for failing to exhaust his administrative

remedies. There is no duty to exhaust when those remedies would clearly be futile.

The Board has made that much very clear.

10. Dr. Wolfe respectfully asks this Court to enforce Miss. Code Ann. §73-25-27, which

assures his innocence until proven guilty. He was not charged until July 10, 2019.

He has had no opportunity to put on one witness in his defense. Yet his license has

been taken, his livelihood imperiled, and his reputation slandered throughout the

community.

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11. By enforcing Miss. Code Ann. § 73-25-27, this Court can at least mitigate some

damage by permitting Dr. Wolfe to put on his case in a reasonable period of time

(the statute allows sixty (60) days), not under duress of a suspended license, and

with opportunity to counter the experts with whom the Board has obviously been

working for months.

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

grant the requested injunctive relief.

THIS, the 12th day of July, 2019.

Respectfully submitted,

WALTER R. WOLFE, M.D.

/s/ C. Maison Heidelberg


C. MAISON HEIDELBERG, MB #9559

OF COUNSEL:

WATSON HEIDELBERG PLLC


2829 Lakeland Drive, Suite 1502
Flowood, Mississippi 39232
P.O. Box 23546
Jackson, Mississippi 39225-3546
601-503-1935 (direct)
601-939-8900 (general)
601-932-4400 (fax)
mheidelberg@whjpllc.com

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Case: 25CH1:19-cv-00509 Document #: 31 Filed: 07/12/2019 Page 4 of 4

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

system on the following:

Stanley T. Ingram
Robert Davis House
Biggs, Ingram & Solop, PLLC
P.O. Box 14028
Jackson, MS 39236-4028
singram@bislawyers.com
dhouse@bislawyers.com

THIS, the 12th day of July, 2019.

/s/ C. Maison Heidelberg


C. MAISON HEIDELBERG MB #9559

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Case: 25CH1:19-cv-00509 Document #: 30 Filed: 07/12/2019 Page 1 of 10

IN THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI


FIRST JUDICIAL DISTRICT

IN RE MISSISSIPPI STATE BOARD OF MEDICAL LICENSURE

CAUSE NO.: G2019-509 G/2

RESPONSE IN OPPOSITION TO
MOTION FOR TEMPORARY RESTRAINING ORDER AND INJUNCTIVE RELIEF

COMES NOW the Mississippi State Board of Medical Licensure ("Board"), by

and through undersigned counsel, and files this its Response in Opposition to the

Motion for Temporary Restraining Order and lnjunctive Relief filed by Walter Wolfe,

M.D.1, and in support thereof would show as follows:

The Board began investigating WalterWolfe, M.D. ("Dr. Wolfe") in November of

2018 after receiving information concerning alleged professional sexual misconduct

between Dr. Wolfe and certain patients. lt now has reason to believe that this

misconduct occurred with no less than three (3) of those patients, The findings of the

Board's investigator in this regard are set forth by affidavit and marked as Exhibit "A".

To avoid unnecessary publicity, the Board requests the Affidavit be submitted

separately to your honor for consideration in chambers. Based on the findings in said

Affidavit, a decision was made to suspend Dr. Wolfe's license on July 10,2019 pursuant

to Miss. Code Ann. $ 73-25-89 as his "continuation in practice or unrestricted practice

would constitute an immediate danger to the public." Dr. Wolfe has now filed this

motion for a temporary restraining order and injunctive relief asking the Court to

1 As a preliminary note, the Board would submit that procedurally a separate Complaint should have been
filed in a new cause number as this case involved only the Board's Petition for Assistance with the
lssuance of lnvestigatory Subpoenas pursuant to Miss. Code Ann. S 73-25-27. The Court could and
should deny the motion on this basis alone.

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reinstate his license. However, Dr. Wolfe cannot meet the criteria for injunctive relief,

and his motion therefore should be denied.

ARGUMENT

A. Dr. Wolfe cannot meet the requirements for iniunctive relief.

"When considering a request for injunctive relief under Mississippi Rule of Civil

Procedure 65(a), we must make findings that: 1)there exists a substantial likelihood

that the plaintiff will prevail on the merits; 2) the injunction is necessary to prevent

irreparable harm; 3) the threatened injury to the plaintiff outweighs the harm an

injunction might do to the defendants; and 4) granting a preliminary injunction is

consistent with the public interest." Littteton v. McAdams, 60 So. 3d 169, 171 (Miss.

2011) (citing City of Durant v. Humphreys County Mem'l Hosp., 587 So, 2d 244,250

(Miss. 1991)).

Dr. Wolfe claims that under the first prong he need only show that he is likely to

prevail on the question of whether he is an immediate danger to the public. Mot., fl36.

While the Board does not believe this is an accurate statement of the law as to

injunctive relief in this instance, it is immaterial, as the question of whether he is an

immediate danger to the public is inextricably intertwined with the merits of the charges

against him.2 Any doctor who crosses the line sexually with patients poses an

immediate threat to all present and future patients. See Affidavits of C.M.A. (Max)

Rogers, lV, M.D., FACOG and Catherine V. Caldicott, M.D., FACP, marked as Exhibits

2As will be discussed, infra, there does not exist a substantial likelihood that the plaintiff will prevail on the
merits of the charges against him,

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"8" and "C", respectively, also separately produced for review by your honor in

chambers.

Although there are no Mississippi appellate decisions on point, other courls have

affirmed the suspension of a physician's license without a hearing where there are

allegations of sexual misconduct with patients. For instance, a Florida appeals court

upheld the suspension of a physician's license where he had engaged in sexual

conduct with a patient in his office finding an immediate public danger. lt quoted from

the emergency suspension order as follows:

[P]hysicians often care for vulnerable patients in settings


where they can easily abuse these patients. Due to the
potential for abuse that is inherent under these
circumstances, doctors must possess good judgment and
good moral character in order to safely practice medicine.
Dr. Field's willingness to engage in sexual misconduct
toward his patient demonstrates a serious defect in Dr.
Field's judgment and moral character. Dr. Field's conduct
was so egregious, it constitutes such a threat to the public
health and safety, and demonstrates such a disregard for the
laws and regulations governing physicians in this state, that
the safety of Dr. Field's patients cannot be assured as long
as he continues to practice medicine in the State of Florida.

Field v. Dep't of Health,902 So. 2d 893, 896 (1st Fla. App. 2005)

See also Everett v. Georgia Bd. of Dentistry,264 Ga. 14, 441 S.E.2d 66, 67 (Ga. 1994)

(Georgia Supreme Court upheld a summary suspension where dentist in Everett had

been accused of sexual offenses at his office building finding that "under the

circumstances, due process did not require a hearing prior to the summary

suspensionl')', El Gabri v. R.l. Bd. of Med. Licensure & Discipline, 1998 R.l. Super

LEXIS 36,*22-23, 1998 WL 961165 (R.1. 1998) (upholding suspension of license prior

to hearing finding immediate danger to the public where physician had been accused of

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Case: 25CH1:19-cv-00509 Document #: 30 Filed: 07/12/2019 Page 4 of 10

sexual misconduct with a number of patients). Doctor Wolfe therefore does not enjoy "a

likelihood of success on the merits" on the question of immediate danger to the public.

As to the issue of irreparable harm and whether the harm to Dr. Wolfe would be

outweighed by the harm to the public (vis-a-vis the Board), any harm to Dr. Wolfe is

clearly outweighed by the potential harm to the public. The Board must have the right to

protect the public from unscrupulous physicians who don't maintain proper boundaries

with patients. As the Florida appeals court noted, this type of conduct is "so egregious,

it constitutes .,.a threatto the public health" and "the safety of...patients cannot be

assured as long as [such a physician] continuesto practice medicine," Field, supra.

And for that same reason, the fourth factor--whether granting the TRO is consistent with

the public interest--also militates against granting injunctive relief here.

Wolfe argues there is no danger to the public as evidenced by the fact that the

Board "waited months and months to suddenly declare imminent danger" (Mot., fl39)

lndeed, this is the crux of his entire 16-page motion. While the Board felt, and has felt

all along, that Dr, Wolfe represents a threat to the public, it wanted to continue its

investigation to assemble sufficient information to confirm its suspicion. Dr. Wolfe would

have this Court believe that the Board should have sought temporary suspension early

on. Contrary to what Wolfe would have this Court believe, the Board painfully
progressed through the investigation to insure accuracy of information, consulting with

its experts to insure that a proper decision was made in regard to Dr. Wolfe's license

and privilege of practicing medicine.

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B. The Board has c lear authoritv to temporarilv sus n d Dr. Wo fe's

license with a hearinq set not more th an fifteen (151 davs from suspension.

By enacting Miss. Code Ann. $73-25-89, the legislature gave the Board authority

to temporarily suspend a physician's license when, in its judgment, that physician poses

an immediate threat to the public. Every licensure Board in this state has similar

statutes which are deemed necessary when a licensee poses such a threat. The

safeguard for physicians, like Dr. Wolfe, suspended under that section is that a hearing

on the merits of the charges must be setwithin fifteen (15) days of suspension. This

gives the licensee an opportunity to be heard and, at the same time, protects the public.

Such a hearing has been set, and Dr, Wolfe will have the right to present his defense to

these charges at that time. lf every time a physician is suspended under $73-25-89, he

or she could simply run to chancery court and file a motion such as this one to have the

license reinstated, the entire purpose behind the statute would be subverted.

ln essence, Dr. Wolfe is asking this Court to conduct a hearing on the merits

without the benefit of a complete record and investigation which the Board has already

undertaken. The Board is given the authority by statute to conduct such a hearing, and

this Court should allow it to do so before taking any action. ln this regard, Dr. Wolfe has

failed to exhaust his administrative remedies prior to seeking redress from the court

system. CLC of Biloxi, LLC v. Miss. Div. of Medicaid, 189 So. 3d 726,730, (Miss. Ct.

App, 2016) (Affirming chancery court's dismissal of suit against the Mississippi Division

of Medicaid and noting that "[i]t is well settled that "[a] complainant must exhaust

available administrative remedies before resorting to the courts for resolution of his

dispute.") (citing Sfafe v. Beebe,687 So. 2d702,704 (Miss. 1996)); Chevron U.S.A.,

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lnc. v. Smith,844 So, 2d 1145, 1147 (Miss. 2002) ("The Smiths were required under our

precedents to first seek restoration of their property from the Mississippi Oil and Gas

Board before a trial court could consider the issue....").

C. Dr. Wolfe is the reason it took the Board eioht months to conduct the

investiqation

Wolfe states that he and "his counsel have...voluntarily cooperated in providing

requested documents to the [Board] since becoming aware of the...investigation" (Mot.,

fl36) and would have this Court believe that he has totally cooperated with the Board's

investigation by virtue of sitting and agreeing to an interview on April 11,2019. What he

has not told the Court is that during this interview, there were certain areas of inquiry on

which he refused to cooperate. Furthermore, Wolfe and his counsel have taken every

step imaginable to thwart the investigation and prevent the issuance of certain

subpoenas based on a Settlement Agreement arising out of the alienation of affection

lawsuit resulting from Wolfe's relationship with one of the patients; said Settlement

Agreement being unenforceable on many fronts, one of which is that it violates public

policy. See Wolfe's Motion to Quash lnvestigatory Subpoena and Board's Response

thereto [Docs. 17 and 20].

Furthermore, when efforts to quash investigatory subpoenas were denied, Wolfe

advised the court repofters not to comply with the order of the court based upon an

anticipated appeal and stay which has yet to be filed. Stated differently, while the Board

has been conducting an investigation for approximately eight (8) months, most of the

time spent has been litigating with Wolfe in an effort to deny the Board documents and

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access to witnesses which it needs to properly investigate and pursue the Board's

obligation to protect the public. 3

D. Dr. Wolfe does not have a substantial likelihood of success on the

merits

As noted, supra, in order to obtain injunctive relief (a TRO) a movant most show

that he has a substantial likelihood of success on the merits, Dr. Wolfe cannot make

such a showing as the evidence against him is ovenruhelming.

The Summons and Affidavit charging Wolfe with separate counts of violation of

the Miss. Medical Practice Act. Counts I and lV allege that Dr. Wolfe is guilty of

unprofessional conduct which includes, but is not limited to, being guilty of any

dishonorable or unethical conduct likely to harm the public by virtue of him having sex

with and impregnating a patient at a time when there was either a concurrent

patienVphysician relationship or by exploiting trust, knowledge, emotions or influence

derived from a previous professional relationship (PatienVphysician and/or

employer/employee).4 See Ex. "A" Affidavit separately submitted for your Honor's

review in chambers. Count I peftains to patient #1 and Count lV pedains to patient #2.

3 The Board also issued an investigative subpoena for the medical records of a patient with whom Wolfe
fathered a child and which Wolfe currently recognizes is his. On reliable source, the Board believes that
this individual was both a patient and employee of Dr. Wolfe. To-date, Wolfe has failed to comply with the
subpoena, yet despite his threats to file a Motion to Quash, has not done so. Again, these are efforts by
Wolfe to keep the Board from receiving documentation needed to conduct its investigation. While the
alleged sexual contact with this patienVemployee occurred a number of years ago, such information
clearly establishes a pattern of conduct.

4 At paragraph 12 of Wolfe's Motion, he attempts to persuade this Court that because he has since
married one of the ex-patients ("his fianc6") with which he had an inappropriate sexual relationship, the
Board no longer has any basis of inquiry, much less to discipline. Reference in the Order of Temporary
Suspension to Wolfe being observed kissing said patient was made to reveal how the Board became
aware of possible sexual misconduct. Notwithstanding, subsequent marriage to a patient does not
diminish the unprofessional nature of sexual misconduct, especially when there are other patients
involved in a similar pattern of misconduct.

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The Board believes that it contains substantial evidence in support of the professional

sexual misconduct as alleged in each case.

As to Count Nos. ll, lll, Vl and Vll, it is unequivocal and undisputed that Licensee

has issued numerous prescriptions for controlled substances to Patients #1 and #2

without any entry into the patient record whatsoever. Standing alone, these counts

justify disciplinary action by the Board and thus, correctly diminishes Licensee's

argument that he has a substantial likelihood to prevail on the merits. lssuing multiple

prescriptions for controlled substances without maintaining any record as to same

illustrates total lack of objectivity by Wolfe, one of the reasons why romanticisexual

relationships with patients is prohibited.

The Board then calls the Court's attention to Count V charging Licensee with

unprofessional conduct likely to harm the public as a result of "his physical assault on

Patient #2 with the unwarranted insertion of medication for the purpose of inducing an

aboftion without the consent of the patient." Evidence will show that Licensee, while in

the act of having sex with Patient #2, attempted to insert four (4) tablets for the purpose

of inducing miscarriage. Despite Dr. Wolfe's efforts to prevent the Board from gaining

access to the testimony and deposition of Patient #2,lhe Board believes that sufficient

evidence still exists to support this very serious allegation. Count V, standing on its own

justifies disciplinary action by the Board, thus diminishing any substantial likelihood that

Dr. Wolfe will prevail on the merits.

Finally, the Board notes Count Vlll of the charging affidavit alleging that Dr. Wolfe

is guilty of unprofessional conduct, by virtue of committing sexual impropriety, i.e.

making inappropriate comments of a sexual nature to Patient #3. Patient #3 has agreed

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to testify, and the Board believes will clearly substantiate that allegation thus again

diminishing the likelihood that Dr. Wolfe will prevail on the merits.

CONCLUSION

For all of these reasons, Dr, Wolfe's motion for a temporary restraining order and

injunctive relief should be denied.

THIS the 12th day of July, 201 9.

Respectfully submitted,

THE MISSISSIPPI STATE BOARD OF


MEDICAL LICENSURE

By isl Stan T ln ram


Stan T. lngram, MSB No. 3025
Its Attorney

OF COUNSEL:

Biggs, lngram & Solop, PLLC


111 Capitol Building
111 East Capitol Street, Suite 101 (39201)
P.O, Box 14028
Jackson, MS 39236-4028

Stan T. lngram, MSB No. 3025


Telephone: (601 ) 71 3-631 8
Facsimile: (601 ) 7 13-9484
Email: singram@bislawyers, com

C. Stephen Stack, Jr., MSB No. 10768


Telephone: (601 ) 713-6335
Facsimile: (601 ) 7 13-2049
Email: sstack@bislawyers. com

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CERTIFICATE OF SERVICE

l, Stan T. lngram, one of the attorneys for the Mississippi State Board of Medical

Licensure, do hereby certify that I electronically filed the foregoing with the Clerk of the

Court using the ECF system which sent notification of such filing to all counsel of

record.

This the 12th day of July, 2019.

isl Stan T. lnoram


Stan T. lngram

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Case: 25CH1:19-cv-00509 Document #: 28 Filed: 07/11/2019 Page 1 of 18

IN THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI

IN RE: MISSISSIPPI STATE BOARD OF MEDICAL LICENSURE

CAUSE NO. G2019-509 G/2

MOTION FOR TEMPORARY RESTRAINING


ORDER AND INJUNCTIVE RELIEF

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:

1. Walter R. Wolfe, M.D., is an adult residence citizen of Madison County,

Mississippi. He has at all pertinent times been a physician licensed to practice medicine in the

State of Mississippi, having initially been licensed by the MBML in 1989.

2. The Mississippi Board of Medical Licensure is an administrative board created

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

since 1985 when he began his residency program.

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

received any reprimands or suspensions from the Board.

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

cared for more than 29,000 patients.

9. Dr. Wolfe presently practices in Canton, Mississippi, an underserved community

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

fully supportive of him.

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

demand patient charts of specified patients.

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

accompanying issues of prescribing medications to these persons or patients. Indeed, we now

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

since that time.


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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

whose charts were commandeered in February of 2019. Prescribing information is independently

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

Board waited until July 10 to declare “imminent danger.”

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

imminent threat or danger.

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

patient charts and prescribing history since at least February, 2019.

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

ultimately into the Clarion Ledger this morning.

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

his interview on April 11, 2019.

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

Board would have acted long ago.

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

his license was pulled.

26. Obviously a doctor is guaranteed constitutional due process through disciplinary

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:

“notice and opportunity for hearing” prior to suspension.

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.

TEMPORARY RESTRAINING ORDER


AND INJUNCTIVE RELIEF

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

interest. Littleton v McAdams, 60 So.3d 169, 171 (Miss. 2011).

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

by the Board as unqualified….”) (emphasis added).

41. The statutory criteria is not met for suspension without hearing for all the reasons

set forth herein.

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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

as innocent until proven guilty.

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

her will to testify.

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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professional or otherwise. There is pending Motion to Quash as to the MBML’s attempt

to obtain these records as to Patient K.

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

asserted by the MBML?

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

see Dr. Wolfe again if he posed a threat to her?

e. Independently, this entire investigation has been conducted without proper notice or fair

disclosure, in an attempt to gain procedural advantage and coerce evidence through

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

with the substance or spirit of the governing law.

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

sexual assault is frivolous and reckless and in outright bad faith.

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

opinion before any evidence has been presented.

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

impartial entity would act.

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

procedure occur as intended under Miss Code 73-25-27.

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.

Wolfe’s license until after a substantive hearing is held;

(b) Enjoining all further action by the Board to the detriment of Dr. Wolfe and

his practice until a substantive hearing is held.

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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

grant the requested injunctive relief.

THIS, the 11th day of July, 2019.

Respectfully submitted,

WALTER R. WOLFE, M.D.

/s/ C. Maison Heidelberg


C. MAISON HEIDELBERG, MB #9559

OF COUNSEL:

WATSON HEIDELBERG PLLC


2829 Lakeland Drive, Suite 1502
Flowood, Mississippi 39232
P.O. Box 23546
Jackson, Mississippi 39225-3546
601-503-1935 (direct)
601-939-8900 (general)
601-932-4400 (fax)
mheidelberg@whjpllc.com

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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

system on the following:

Stanley T. Ingram
Robert Davis House
Biggs, Ingram & Solop, PLLC
P.O. Box 14028
Jackson, MS 39236-4028
singram@bislawyers.com
dhouse@bislawyers.com

THIS, the 11th day of July, 2019.

/s/ C. Maison Heidelberg


C. MAISON HEIDELBERG MB #9559

18
affair with him. In one of Licensee's responses to the lawsuit, he acknowledged and admitted

to a relationship with this patient. While pregnant and during sex with said patient, Licensee

attempted without the patient's knowledge or consent to insert four (4) Misoprostol (Cytotec)

tablets into the patient's vagina in an attempt to induce an abortion; however, the patient later

gave birth to Licensee's child in 2016; and

WHEREAS, on January 21, 2019, Affiant interviewed a previous patient of Licensee who

advised that Licensee made inappropriate comments to her immediately after he conducted a

vaginal examination on this patient; and

WHEREAS, a practitioner in the field of obstetrics and gynecology was consulted and

reviewed the complaints against Licensee. Based on this review, this practitioner deemed

Licensee to be an immediate threat to not only the citizens of Mississippi, but to any patient that

should enter into his care; and

WHEREAS, as further evidenced by separate Determination of Need for Temporary

Suspension, the Board has determined that the evidence in its possession indicates that

Licensee's continued practice of medicine would constitute an immediate danger to public health

and safety.

NOW, THEREFORE, IT IS HEREBY ORDERED, that pursuant to authority granted in

Miss. Code Ann. §§ 73-25-89, Mississippi Medical License No. 11096 is hereby temporarily

suspended, and Licensee shall be prohibited from the practice of medicine pending the

outcome of a hearing as scheduled in the matter.

The above action is hereby taken on a temporary basis, without a hearing. Enclosed

herewith, and served as part of this Order of Temporary Suspension, is a copy of the

Determination of the Board, wherein it was found that the Board has in its possession evidence
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