ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF
THE CASE
This matter is before
me pursuant to S.C. Code Ann. §§ 40-47-200 (2005) and §1-23-600(D) (Supp. 2005);
Dr. Hibah O. Osman appeals the Final Order of the South Carolina Department of
Labor, Licensing and Regulation, State Board of Medical Examiners (Board),
dated August 25, 2005. In that order, the Board publicly reprimanded Appellant
and ordered her to pay the Board the sum of $7,102.74, an amount representing
the administrative costs of adjudicating her case, as a sanction for violating
the standard of care in her treatment of a patient with placenta previa. The
Appellant performed a Caesarian section on this patient in the community
hospital in Allendale County, South Carolina without proper surgical support.
Although the outcome was satisfactory, because both mother and baby survived,
the mother had to be transported by helicopter to the Medical University of
South Carolina (MUSC) for a hysterectomy due to excessive bleeding following
the Caesarian section.
On appeal to this court, Appellant contends that the Board should have
followed the recommendation of the hearing panel and refused to sanction the
Appellant. However, upon consideration of the Record on Appeal, the arguments
of the parties in their briefs and at oral argument, and the applicable law, I
find that the Board’s Final Order publicly reprimanding Appellant must be
affirmed.
BACKGROUND
Appellant is a physician duly licensed to practice medicine
in South Carolina, although she is currently serving in her native Lebanon. In
July 2002, Dr. Osman performed a Caesarian section on a thirty-nine year old
patient she had been following during the patient’s pregnancy. This patient
had placenta previa in this, her third pregnancy. In this case, placenta previa
meant that the placenta was not only anterior low lying but was felt to perhaps
cover the cervical os or part of the cervical os, the opening to the womb.
(RAO p. 91) When the time came for this patient to deliver, Dr. Osman agreed
to perform the Caesarian in the Allendale hospital. The patient’s family ran a
hotel and was reluctant to travel from the area over the Fourth of July
weekend. In order not to inconvenience the family, Dr. Osman agreed to perform
the Caesarian section at the county hospital. Dr. Osman admits that she did
not have surgery back-up ready in the event that a hysterectomy was necessary.
Following the Caesarian section, the patient developed complications, including
continued bleeding and decreased blood pressure. The patient was transported
via helicopter to MUSC, where a hysterectomy was performed.
Eleven months later, on June 24, 2003, a notice and complaint from the Medical
Board were served on the appellant, alleging improper care of this patient. In
her response to the Board on June 26, 2003, Dr. Osman admitted that it had been
inappropriate for her to perform the C-section in a community county hospital
without adequate resources immediately available and that she had failed to
have surgery stand-by in the event that a hysterectomy became necessary. She
also admitted that she should have obtained a signed, written informed consent
form from the patient as to the possible complications which could occur with
placenta previa, including the possibility of a hysterectomy or death.
A three-member panel of the Board of Medical Examiners held a hearing on
this matter in October 2004, over a year after the complaint had been filed.
Dr. Osman appeared pro se at the panel hearing. She testified at length
as to her treatment of the patient. The State presented an expert witness who
identified thirteen deviations from the appropriate standards of care in this
matter. Dr. Osman again admitted that she should not have performed the C-section
in the community hospital without sufficient surgical back-up available. She
also outlined the extensive research she had undertaken and the thorough
guidelines that she had instituted for the hospital’s use in similar
situations. There had been no such guidelines prior to Dr. Osman’s
compilation.
The panel’s decision dated December 27, 2004 found that Dr. Osman had
breached the standard of care in only three instances: 1.) she inappropriately
performed a primary C-section secondary to placenta previa in a community
hospital setting without adequate resources immediately available; 2.) she
failed to have surgery stand-by in the event that a hysterectomy became
necessary; 3.) she failed to provide complete written informed consent to the
patient as to the possible complications and difficulties that could occur.
The panel then outlined their conclusions of law and recommended that the Board
not impose a sanction against Dr. Osman. The panel noted that there were
mitigating circumstances, including that Dr. Osman appreciated her mistakes; that
she was remorseful; that she had made good decisions otherwise, once she had
elected to proceed with the surgery; and that she is competent in her practice
of medicine and has made improvements to her practice. (ROA, p.68)
ISSUES
ON APPEAL
Appellant
contends that the Board’s Final Order should be overturned because the
Appellant’s actions did not rise to the level of a violation of ethical conduct;
that her constitutional rights were violated by her inability to confront her
accuser, and that she was denied right to counsel. Appellant argues that the
Board’s decision to impose the more severe sanction of a public reprimand
against her as opposed to a private reprimand: (1) violates her due process
rights because her actions did not rise to the level of a violation of ethical
conduct contemplated by the statutes on which the Board relied on in
sanctioning the Appellant; and (2) violates her right to due process because
she was deprived of her meaningful right to be represented by counsel at the
panel hearing and the right to confront her accuser.
STANDARD
OF REVIEW
This court’s review of a final decision in a contested case decided by a
professional or occupational licensing board within the South Carolina
Department of Labor, Licensing and Regulation is governed by the provisions of
S.C. Code Ann. § 1-23-380(A) (2005). S.C. Code Ann. § 1-23-380(B) (2005); see
also S.C. Code Ann. § 1-23-600(D) (Supp. 2004). Under the standard of
review laid out in Section 1-23-380, this court “shall not substitute its
judgment for that of the [Board] as to the weight of the evidence on questions
of fact.” S.C. Code Ann. § 1-23-380(A)(6) (2005). However, this 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 [Board];
(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
and capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion.
Id.; see
also Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).
Substantial evidence, as referenced in Section 1-23-380(A)(6)(e), is
relevant evidence that, considering the record as a whole, a reasonable mind
would accept to support the Board’s decision. E.g., Jennings v.
Chambers Development Co., 335 S.C. 249, 516 S.E.2d 453 (Ct. App. 1999).
The possibility of drawing two inconsistent conclusions from the evidence does
not prevent an administrative agency’s finding from being supported by
substantial evidence. Id. Where there is a conflict in the evidence,
the administrative agency’s findings of fact are conclusive. Id. This court
cannot substitute its judgment for that of the Board upon a question as to
which there is room for a difference of intelligent opinion. E.g., Chemical
Leamen Tank Lines v. S.C. Pub. Service Comm’n, 258 S.C. 518, 189 S.E.2d 296
(1972). While a decision of an administrative agency will normally be upheld,
the findings may “not be based upon surmise, conjecture, or speculation, but
must be founded on evidence of sufficient substance to afford a reasonable
basis for it.” Mullinax v. Winn-Dixie Stores, Inc., 318 S.C. 431, 443,
458 S.E.2d 76, 83 (Ct. App. 1995).
The burden is on Appellant to show convincingly that the Board’s Final
Order is without evidentiary support or is arbitrary or capricious as a matter
of law. See Hamm v. Am. Tel. & Tel. Co., 315 S.C. 119, 432
S.E.2d 454 (1993); Hamm v. Pub. Serv. Comm’n of S.C., 310 S.C. 13, 425
S.E.2d 28 (1992). The standard of proof in a medical disciplinary proceeding
is a preponderance of the evidence. See Anonymous v. State Bd. of
Med. Exam’rs, 496 S.E.2d 17, 329 S.C. 271 (1998).
DISCUSSION
The gravamen
of Appellant’s appeal is that the Board should have followed the Panel’s
determination and not issued sanctions, since her conduct did not rise to the
level of sanctionable unethical conduct. However harsh the sanctions, I find
that these arguments are not supported by the facts in the record or by the
applicable law. Accordingly, I find that the Board’s Final Order in this case
imposing a public reprimand upon Appellant must be affirmed.
Appellant’s
primary contention is that the Board should have followed the Panel’s
determination and not issued sanctions, since her conduct did not rise to the
level of sanctionable unethical conduct, and that this action by the Board violated
her due process rights and constituted an abuse of discretion. To the extent
this argument is a challenge to the constitutionality of the provisions of
Section 40-47-200, it cannot be addressed by this court, see, e.g., Video
Gaming Consultants, Inc. v. S.C. Dep’t of Revenue, 342 S.C. 34, 38, 535
S.E.2d 642, 644 (2000) (holding that an administrative law judge has no
authority to pass upon the constitutionality of a statute or regulation);
however, to the extent Appellant’s argument addresses the Board’s application of Section 40-47-200, it must fail. Section 40-47-200 authorizes the Board to
impose a number of sanctions upon physicians who have been found guilty of professional
misconduct, including the sanction of a public reprimand:
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
osteopathy, publicly or privately reprimand the holder of a license to
practice medicine or osteopathy, or take other reasonable action short of
revocation or suspension, such as requiring the licensee to undertake
additional professional training subject to the direction and supervision of
the board or imposing restraint upon the medical or osteopathic practice of the
licensee as circumstances warrant until the licensee demonstrates to the board
adequate professional competence.
S.C. Code Ann. §
40-47-200(A) (2004) (emphasis added). This section also authorizes the Board,
in addition to or in lieu of action taken against a license, to require a
licensee who has been found guilty of misconduct to pay a civil penalty of up
to ten thousand dollars and the costs of the disciplinary action. Id. The
Board provided Appellant with sufficient notice of the specific sanctions she
was facing as a result of her professional misconduct and provided an
affidavit, albeit generalized, which outlined the fees the Board sought to
recoup.
Further,
the Board’s decision to impose one of these available sanctions upon Appellant
for her misconduct cannot be said to constitute an abuse of discretion. The
particular sanction imposed by the Board upon Appellant—a public reprimand—is
not only well within the range of the sanctions authorized in Section
40-47-200, but is also expressly identified in that section as a sanction
available to the Board. See S.C. Code Ann. § 40-47-200(A). As such,
the Board’s issuance of a public reprimand of Appellant for her violations of
Section 40-47-200 and Regulation 81-60 cannot be considered an abuse of
discretion. See Deese v. S.C. State Bd. of Dentistry, 286 S.C.
182, 185, 332 S.E.2d 539, 541 (Ct. App. 1985) (holding that, because “the
sanctions [imposed by the State Board of Dentistry] were within those
established by law, [the dentist’s] contention that they were arbitrary and
capricious is without merit”); Gale v. State Bd. of Med. Exam’rs, 282
S.C. 474, 479, 320 S.E.2d 35, 38 (Ct. App. 1984) (holding that the State Board
of Medical Examiners is not required “to invoke certain sanctions for certain
violations,” but rather that “[a] showing of any misconduct listed in Section
40-47-200 may result in license revocation, suspension, restriction or
limitation”).
The
Board’s public reprimand of Appellant for her lack of good judgment is well
within its sanctioning authority under Section 40-47-200, and Appellant has not
demonstrated that, in exercising that authority, the Board acted arbitrarily or
discriminatorily. In short, Appellant has not established any sufficient
grounds upon which to disturb the sanction imposed by the Board.
Despite
affirming their decision, I do have several concerns about the actions of the
Board. The timing of this case, coming over a year since the incident
occurred, is troublesome. Although I can appreciate the need for a thorough
investigation, this time involved seemed excessive. In addition, the Board’s
decision not to accommodate Dr. Osman’s request to have these hearings before
the Panel and the Full Board prior to her return to Lebanon severely
inconvenienced her and necessitated additional expenses by her.
Furthermore,
the Findings of Fact and Conclusions of Law in both the Panel decision and the
decision of the Board are identical, with the exception that in the Final Order
of the Board, it notes that Dr. Osman is a citizen of Lebanon and is currently
residing there. The Final Order of the Board includes two additional
Conclusions of Law in addition to those in the Panel decision:
3. The
sanction imposed is consistent with the purpose of these proceedings and has
been made after weighing the public interest and the need for the continuing
services of qualified medical doctors against the countervailing concern that
society be protected from professional ineptitude and misconduct.
4. The
sanction imposed is designed not to punish the physician, but to protect the
life, health and welfare of the people at large.
There is no
discussion of these conclusions. It would appear to this court that the
Appellant’s voluntary compilation of guidelines for other physicians in similar
situations in this small county hospital would do more to “protect the life,
health and welfare of the people at large,” than a public reprimand. The
Board, however, was in the position of judging the credibility of the witnesses
and making findings of fact. As noted previously, this court cannot substitute
its judgment for that of the Board upon a question as to which there is room
for a difference of intelligent opinion.
Finally,
the Final Order of the Board includes that “if the Respondent should ever
return to active practice in the State of South Carolina, the Respondent shall
be restricted from the practice of surgical obstetrics until such time as the
Respondent provides proof that is satisfactory to the Board that she has
appropriate education and training in this area.” (Order, #3) I find that an
anticipatory suspension is a sanction that the Board does not have the
authority to impose. Dr. Osman is a licensed physician, Board Certified in Family
Medicine with a two-year fellowship in high risk obstetrics, surgical
obstetrics and level two nursery. (ROA, pp 26—27) The Panel found her to be a
competent physician. (ROA, p. 68) This sanction is stricken from the Order.
ORDER
Therefore,
for the reasons set forth above,
IT
IS HEREBY ORDERED that the Board’s Final Order of June 9, 2004, publicly
reprimanding Appellant and imposing other sanctions upon her for her admitted
misconduct under Section 40-47-200 and Regulation 81-60, is AFFIRMED, except
for #3 “If the Respondent should ever return to active practice in the State of
South Carolina, the Respondent shall be restricted from the practice of
surgical obstetrics until such time as the Respondent provides proof that is
satisfactory to the Board that she has appropriate education and training in
this area.” That section is deleted and must be removed from any
official notice of this Public Reprimand.
AND IT IS SO
ORDERED.
____________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
September 20, 2006
Columbia, South Carolina |