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.

1
 Case: 25CH1:19-cv-00509 Document #: 30 Filed: 07/12/2019 Page 2 of 10

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,

2
 Case: 25CH1:19-cv-00509 Document #: 30 Filed: 07/12/2019 Page 3 of 10

"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

3
 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.

4
 Case: 25CH1:19-cv-00509 Document #: 30 Filed: 07/12/2019 Page 5 of 10

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.,

5
 Case: 25CH1:19-cv-00509 Document #: 30 Filed: 07/12/2019 Page 6 of 10

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

6
 Case: 25CH1:19-cv-00509 Document #: 30 Filed: 07/12/2019 Page 7 of 10

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.

7
 Case: 25CH1:19-cv-00509 Document #: 30 Filed: 07/12/2019 Page 8 of 10

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

8
 Case: 25CH1:19-cv-00509 Document #: 30 Filed: 07/12/2019 Page 9 of 10

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

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

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

10