This is an appeal of Respondent's November 16, 2005 Final Order issued by the South Carolina Board of Medical Examiners (The Board).

FACTUAL BACKGROUND

On August 26, 2005, a Formal Complaint was filed against Appellant by the State Board of Medical Examiners, charging Appellant with several violations of the Board's Practice Act, S.C. Code Ann. § 40-47-200 et seq. (2001 and Supp. 2005). The Appellant entered into a Memorandum of Agreement and Stipulations (MOA). The MOA, signed by the Appellant on September 22, 2005, read in pertinent part as follows: the State Board of Medical Examiners (the Board) has received an initial complaint with respect to Thomas A. Moore, Jr., M.D., (Respondent); and a Notice and Complaint, dated August 26, 2005, has been filed and served alleging that, among other things, Respondent deviated from the standard of care for medical treatment. Therein Respondent is alleged to have violated S.C. Code Ann. § 40-47-200 (F)(7), (8) and (12) and S.C. Code Ann. Regs. 81-60(A) (Supp. 2005) of the Rules and Regulations of the Board. Respondent, admitting the allegations, has advised that he wishes to waive formal hearing procedures and dispose of this matter pursuant to S.C. Code Ann. § 1-23-320(f) (2005), in lieu of, inter alia, a Panel Report of the Medical Disciplinary Commission. Respondent will participate in a Final Order Hearing pursuant to § 40-47-200, supra, and Regulation No. 81-17 of the Board at such time as the Board shall require for the purpose of determining an appropriate sanction.

At the Final Order hearing on November 7, 2005, the Appellant and the State presented oral arguments on the MOA to the Board of Medical Examiners. The Board issued its Final Order dated November 16, 2005. In the Order the Board found that the Appellant had violated the Medical Practice Act and imposed the following sanction:

1.      A public reprimand.

2.      A fine in the amount of Five Thousand Dollars ($5,000.00) and several other conditions related to Appellant’s practice of medicine. The Board’s Order did not revoke, suspend or place Appellant’s license on probation.

STANDARD OF REVIEW

Jurisdiction on appeal is vested in the Administrative Law Court (ALC or Court) pursuant to the Administrative Procedures Act (APA), specifically S.C. Code Ann. § 1-23-600(D) (2005) and S.C. Code Ann. § 40-1-160 (2001). On appeal to the ALC, the standard of review is limited to the record presented. The APA governs the reasons an appellate body may reverse or modify an agency decision. That section provides:

The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

S.C. Code Ann. § 1-23-380 (A)(6) (2005).

An Administrative Law Judge may not substitute his judgment for that of the agency unless the agency's determination is affected by error of law or is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record. S.C. Code Ann. § 1-23-380(A) (6) (2005); Lark v. Bi-Lo, Inc., 276 S.C. 130, 132-133, 276 S.E.2d 304, 305 (1981). A decision is supported by "substantial evidence" when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App. 1984). The well-settled case law in this state has also interpreted the rule to mean that a decision will not be set aside simply because reasonable minds may differ on the judgment. See Lark, supra. The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency's finding from being supported by substantial evidence. See Waters v. South Carolina Land Resources Conservation Comm'n, 321 S.C. 219, 467 S.E.2d 913 (1996); see also Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995), Palmetto Alliance, Inc. v. South Carolina Public Service Comm'n, 282 S.C. 430, 319 S.E.2d 695 (1984).

In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996), (citing Kearse v. State Health and Human Finance Comm'n, 318 S.C. 198, 456 S.E.2d 892 (1995)). Furthermore, the reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact. See Grant, 319 S.C. at 353, 461 S.E.2d at 391 (citing Gibson v. Florence Country Club, 282 S.C. 384, 318 S.E.2d 365 (1984)). Finally, the party challenging an agency action has the burden of proving convincingly that the agency's decision is unsupported by substantial evidence. See Waters, 321 S.C. at 226, 467 S.E.2d at 917 (citing Hamm v. AT&T, 302 S.C. 210, 394 S.E.2d 842 (1994)).

STATEMENT OF ISSUES ON APPEAL

1. Was the Board's decision, which found that Appellant had violated the Medical Practice Act relative to the admissions in the Memorandum of Agreement, based upon substantial evidence in the record?

2. Did the Appellant receive a fair and impartial hearing below?

3. Should the sanction imposed by the Board in this case be affirmed on appeal?

ANALYSIS

1. THE BOARD'S DECISION FINDING APPELLANT HAD VIOLATED THE MEDICAL PRACTICE ACT WAS BASED UPON SUBSTANTIAL EVIDENCE IN THE RECORD.

In determinations as to evidentiary sufficiency, the key issue is whether there is substantial evidence that supports the conclusion of the administrative body that the State met its burden of proof by a preponderance of the evidence. See Anonymous v. The State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998). Substantial evidence "is not a mere scintilla of evidence nor the evidence as viewed blindly from one side of the case, but is evidence which, considering the Record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached or must have reached in order to justify its action." Id, 329 S.C. at 379, 496 S.E.2d at 20. Thus, the appellate courts of this State should "not overturn a finding of fact by an administrative agency unless there is no reasonable probability that the facts could be as related by a witness upon whose testimony the finding was based." Lark, 276 S.C. at 136, 276 S.E.2d at 307.

The Board had before it a signed Memorandum of Agreement in which Appellant admitted certain facts and further admitted that those facts constituted misconduct under the Medical Practice Act. The Appellant, in lieu of a panel hearing, entered into the Memorandum of Agreement and Stipulations voluntarily.

2. APPELLANT RECEIVED A FAIR HEARING AND HAS FAILED TO PRESERVE FOR REVIEW THE ISSUE OF THE COMMENTS OF STATE'S COUNSEL.

Appellant raises, for the first time on appeal, an issue of the propriety of the arguments to the Board made by State's counsel. As the record discloses, Appellant's counsel failed to make a contemporaneous objection to the argument and has, therefore, failed to preserve this issue for appeal. See State vs. Hamilton, 344 S.C. 344, 543 S.E.2d 586 (Ct. App. 2001), rev’d on other grounds by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005); see also State vs. Wilkins, 310 S.C. 81, 425 S.E.2d 68 (Ct. App. 1992), Doe v. S.B.M., 327 S.C. 352, 488 S.E.2d 878 (Ct. App. 1997).

Assuming arguendo that Appellant has preserved this issue for appellate review, he still has not made a record sufficient to demonstrate prejudice, which would amount to a denial of due process. In criminal cases, the test of granting a new trial for alleged improper argument is whether the State attorney's argument so infected the trial with unfairness as to make the resulting conviction a denial of due process. Hamilton, 344 S.C. at 362, 543 S.E.2d at 596.

In analyzing this standard, our courts have held that a solicitor's comments may not appeal to the personal biases of the jurors. State v. Copeland, 321 S.C. 318, 324, 468 S.E.2d 620, 624 (1996). Likewise, the argument must not be calculated to arouse the jurors' passions or prejudice and its content should stay within the record and its reasonable inferences. Simmons v. State, 331 S.C. 333, 338, 503 S.E.2d 164, 166 (1998). The standard is largely the same in civil cases. Gathers vs. Harris Teeter Supermarket, Inc., 282 S.C. 220, 231, 317 S.E.2d 748, 755 (1984). Ordinarily, control of arguments is left to the discretion of trial judges, and will not be disturbed on appeal absent a clear abuse of discretion. Neal v. Darby, 282 S.C. 277, 287, 381 S.E. 2d 18, 24 (Ct. App. 1984).

A review of the summation of the State's counsel in the instant case reveals that it passes the fairness test cited above. There was no appeal to the prejudice or bias of the Board. The State’s closing remarks were made after and in response to the Appellant’s testimony that he had no recollection of the encounter with the patient who is the subject of paragraph A of the MOA. (ROA 14, 31). The argument of which Appellant complains highlighted the matters in the record and the fair inferences drawn therefrom and was not inconsistent with the Appellant’s signed admission in the MOA. See Hamilton and Wilkins, supra. In administrative proceedings, proof of a denial of due process requires a showing of substantial prejudice. See Palmetto Alliance Inc., supra. In the instant case, it cannot be said that the State’s summation substantially prejudiced the Appellant.

3. THE SANCTION IMPOSED BY THE BOARD SHOULD BE AFFIRMED.

The Board ordered a public reprimand, a $5,000.00 fine, and additional terms and conditions, which did not interrupt Appellant’s medical license. The Appellant challenges the sanction as being arbitrary and unduly excessive based on the evidence.

As a creature of statute, the Board possesses "only those powers that are expressly conferred or necessarily implied for it to effectively fulfill the duties for which it is charged." Captain's Quarters Motor Inn, Inc. vs. South Carolina Coastal Council, 306 S.C. 488, 490, 413 S.E.2d 13, 14 (1991). The legislature vested the Board with wide latitude in fashioning sanctions in physician disciplinary cases. See S.C. Code Ann. 40-47-200 (2005).

The State Board of Medical Examiners, if it has reason to believe grounds exist, may order the revocation or suspension of a license to practice medicine...or take other reasonable action short of revocation or suspension... In addition to or in lieu of action taken by the board affecting the license of a licensee, when it is established that the individual has violated this chapter or any regulation promulgated by the board, the board may require the licensee to pay a civil penalty of up to ten thousand dollars to the board and the costs of the disciplinary action. S.C. Code Ann. 40-47-200 (2001 and Supp. 2005).

An exercise of discretion by an administrative agency will not be disturbed unless there is an abuse of discretion evidenced by a showing that the action of the agency was arbitrary or unlawful. 73A C.J.S. Public Administrative Law and Procedure § 223a (1983). An administrative sanction cannot be said to be unduly harsh if it is within the Board's authority to impose. See South Carolina Bd. of Examiners in Optometry v. Cohen, 256 S.C. 13, 180 S.E.2d 650 (1971); see also Deese v. South Carolina State Bd. of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App. 1985). In the instant case, Appellant’s license was not revoked, suspended or placed on probation and the several sanctions that were imposed are consistent with the admissions in the MOA.

The comments made by Dr. Moore to patients were clearly inappropriate, but not of the most egregious sort. In this case, the issue of violating patient “boundaries” is defined only in vague terms. While I feel that a public reprimand is too severe a sanction in this instance, I find that the sanctions imposed are within the Board's range of available sanctions and I am thus bound by the holdings in Cohen and Deese. See Cohen and Deese, supra; see also 73A C.J.S. Public Administrative Law and Procedure § 223a, supra.

CONCLUSION

The Board's decision to sanction the Appellant is adequately supported by the reliable, probative and substantial evidence in the whole record of the case. Further, the sanctions are within the range authorized by the statute.

ORDER

IT IS THEREFORE ORDERED that the decision of the Board is hereby AFFIRMED.

AND IT IS SO ORDERED.

_____________________

John D. McLeod

Administrative Law Judge

September 14, 2006

Columbia, South Carolina