South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Hibah O. Osman, M.D. vs. SCDLLR

AGENCY:
South Carolina Department of Labor, Licensing, and Regulations

PARTIES:
Appellant:
Hibah O. Osman, M.D.

Respondents:
South Carolina Department of Labor, Licensing, and Regulations, South Carolina State Board of Medical Examiners
 
DOCKET NUMBER:
05-ALJ-11-0384-AP

APPEARANCES:
F. Barron Grier, Esquire, for the Appellant

Kenneth P. Woodington, Esquire, for the Respondent
 

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


 

 

 

 

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