ORDERS:
VACATED AND REMANDED
This is an appeal from an October 30, 1996 Final Decision of the South Carolina Board of
Medical Examiners ("Board") of the South Carolina Department of Labor, Licensing and
Regulation. The Board found that Dr. Clarence Alston violated S.C. Code Ann. §§ 40-47-200
(F)(3), (F)(7), and (F)(8) and Regulation 81-60(B) and (D) in that:
(i) He is addicted to alcohol or drugs to such a degree as to render him unfit to practice medicine, as evidenced by the refusal of the Physician to comply with the Board's procedures for alcohol and drug screening.
(ii) He has not dealt honestly with patients and colleagues, as evidenced by the refusal of the Physician to comply with the Board's procedures for alcohol and drug screening.
(iii) He has not respected the rights of patients, colleagues, and other health professionals, as evidenced by the refusal of the Physician to comply with the Board's procedures for alcohol and drug screening.
A hearing was conducted on March 27, 1997, at which time oral arguments were heard on
the merits of the appeal.
STATEMENT OF THE CASE
In reviewing this matter and for a proper understanding of the issues, it is necessary to
chronicle the events which bring us to the dispute at hand.
Dr. Alston was admitted to the practice of medicine in South Carolina on June 5, 1988. At the
time of his application for licensure to practice medicine, he admitted to having an addiction
problem for which he had been previously treated in 1985 and 1986. Pursuant to his license being
granted, he entered into an Interim Agreement which called for the monitoring of his practice and
periodic and unannounced blood and urine tests for alcohol and/or drug analysis.
In July, 1988, the Appellant had a temporary lapse in his sobriety. The Appellant's license
was suspended by Order of the Board dated July 28, 1988 for his use of cocaine, pending a
hearing and further order of the Board. Consequently, the Appellant entered into a Consent
Order with the Board on February 7, 1989, in which the Appellant conceded misconduct in
violation of S.C. Code Ann. § 40-47-200 (F)(3) (1976). Further, in this Consent Order, the
Appellant expressly waived his right to formal hearing procedures. Pursuant to the terms of the
Consent Order, the Appellant's license was placed in a probationary status subject to various
probationary conditions, including, among other things: unannounced blood and urine alcohol
and/or drug analysis and restriction of the Appellant's practice to the Orangeburg Family Health
Center.
In 1995, the Board reinstated the Appellant's unrestricted license upon entering into a
Private Agreement with the Appellant. The Private Agreement provided, in pertinent part, that
the Appellant was subject to periodic and unannounced blood and urine alcohol and/or drug
analysis as desired by the Board. The Private Agreement further stated, "if the Physician fails to
abide by any of the . . . terms and conditions, [of the agreement] or if it should be indicated from
reliable reports submitted to the Board that Physician is otherwise unable to practice medicine . . .
then Physician's license may be immediately temporarily suspended pending hearing [sic] into the
matter and until further Order of the Board." (emphasis added). Additionally, the Private
Agreement expressly provided: "This Agreement is not a disciplinary action under S.C. Code
Ann. § 40-47-200 (Supp. 1993), but instead is a mutual accord designed to protect the public and
assist the physician in his ongoing recovery effort."
The Appellant failed to comply with the Private Agreement on August 28, 1996, by not
contacting the National Confederation of Professional Services ("NCPS"). Under the terms of the
Private Agreement, the Appellant is required to make daily telephone contact with NCPS between
the hours of 8:00 a.m. and 11:30 p.m. to determine if he is required to undergo testing on that
particular day. The record indicates that during the months of June 1996 through August 1996,
the Appellant failed to make the requested contact with NCPS on at least thirty-one occasions.
The Board issued an Order of Temporary Suspension to the Appellant on September 4, 1996
because of his failure to contact NCPS on August 28, 1996, a day on which a random test was
scheduled.
The Order of Suspension stated in pertinent part:
WHEREAS, on August 28, 1996, physician was scheduled to
submit a specimen pursuant to the Board's procedures. Physician
failed to report or submit a specimen as required, and Physician has
therein not complied with the terms and spirit of the Agreement;
now
THEREFORE, IT IS ORDERED THAT, in accordance with the
Agreement, Physician's license to practice medicine in this State is
hereby temporarily suspended, effective immediately, until such
time as full compliance has been made by Physician and until further
Order of the Board.
IT IS FURTHER ORDERED THAT, Physician appear before the
Board on October 21, 1996, for a hearing into this matter.
The Order of Suspension constituted the only notice for the hearing conducted on October
21, 1996 before the Board. No formal complaint was ever filed or served upon the Appellant, nor
was a panel assembled for a hearing into this matter prior to the October 21, 1996 meeting of the
full Board.
On October 21, 1996, the Appellant appeared before the full Board of Medical Examiners
and at the conclusion of the meeting the Board voted to suspend the Appellant's license to
practice medicine for a period of three (3) years. However, the Appellant was placed on
probation for three (3) years upon the payment of a Five Thousand ($5,000) Dollar fine.
In the October 30, 1996 Decision, the Board concluded as a matter of law that the
Appellant had violated provisions of S.C. Code Ann. § 40-47-200 and Regulation 81-60(B) and
(D).
GROUNDS OF APPELLANT'S APPEAL
The Appellant states the following as grounds of appeal from the Board's Decision of
October 30, 1996.
A. The Final Decision as issued exceeds the statutory and regulatory authority of the
South Carolina Board of Medical Examiners to sanction or otherwise restrict the practice of the
Appellant.
B. The Final Decision of the Board was founded on an unlawful procedure in that the
actions taken by the Board were in violation of the statutorily mandated procedures required by
S.C. Code Ann. § 40-47-200 (Supp. 1995) and the Administrative Rules of Record adopted by
the Board of Medical Examiners.
C. The Board of Medical Examiners has violated the due process rights of the
Appellant in that the Board has taken a private agreement, which by its own terms is not a
disciplinary matter, and unilaterally turned it into a disciplinary matter.
D. The action of the Board in the Final Decision was clearly erroneous in view of the
reliable, probative, and substantial evidence on the whole record.
E. The action of the Board in the Final Decision was arbitrary, capricious, or
characterized by abuse of discretion or a clearly unwarranted exercise of discretion.
RESPONDENT'S CONTENTION
The Respondent argues that this tribunal must look to the terms of the Private Agreement
to address the issues raised by the Appellant in his appeal. Further, the Respondent contends the
Board held a hearing as specified in the Private Agreement. Additionally, the Respondent
contends the hearing was held in response to an on-going monitoring of the Appellant's behavior,
not an initial act which triggers review under the disciplinary provisions of Chapter 47 of Title 40.
Accordingly, the Respondent argues that the Appellant was not denied procedural or substantive
due process because the October 21, 1996 hearing afforded him due process, and the Board was
authorized under S.C. Code Ann. § 40-47-200 to impose the aforementioned discipline upon the
Appellant because he violated the Private Agreement.
STANDARD OF REVIEW
An appeal from an action of the Board is governed by the provisions of the South Carolina
Administrative Procedures Act ("A.P.A."). Lark v. Bi-Lo, 276 S.C. 130, 276 S.E.2d 304 (1981).
Under the A.P.A., the decision of an administrative agency must be sustained if there is
substantial evidence to support it. Id. Therefore, in reviewing the findings of the Board, this
tribunal is limited to determining whether the findings are supported by substantial evidence. S.C.
Code Ann. §§ 1-23-380(A)(6) and (B) (Supp. 1996). In applying the substantial evidence test,
this tribunal "shall not substitute its judgment for that of the agency as to the weight of the
evidence on questions of fact." S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1996).
"Substantial evidence is not a mere scintilla of evidence, nor the evidence 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." Lark v. Bi-Lo. Inc., 276 S.C. 130, 276 S.E.2d 304 (1981)
(emphasis added); McGuffin v. Schlumberger-Sangamo, et al., 307 S.C. 184, 414 S.E.2d 162
(1992). This tribunal cannot substitute its judgment for that of the Board upon a question as to
which there is room for a difference of intelligent opinion. Chemical Leamen Tank Lines v. S.C.
Pub. Serv. Comm'n, 258 S.C. 518, 189 S.E.2d 296 (1972). The Appellant has the burden of
proving convincingly to this tribunal that the Final Decision of the Board is unsupported by the
evidence. See Greyhound Lines, Inc. v. S.C. Pub. Serv. Comm'n, 274 S.C. 161, 262 S.E.2d 18
(1980).
DISCUSSION
The gravamen of the grounds set forth for the Appellant's appeal, concerning procedural
due process, is that the Board failed to follow its own procedures for instituting a disciplinary
action against the Appellant, pursuant to S.C. Code Ann. § 40-47-200. Hence, the Appellant
contends that he was denied procedural due process. Section 40-47-200 is the controlling
statutory authority involving disciplinary actions against the holder of a license to practice
medicine, which includes revocation, suspension, or restriction of a license. Newsom v. State Bd.
of Medical Examiners, 300 S.C. 120, 386 S.E.2d 627 (1989). In order to fully understand the
elaborate formal procedures required under Section 40-47-200, it is necessary to set forth such
procedures in detail as follows. Section 40-47-200(A) specifically provides ". . . an action of the
Board relating to the revocation or suspension of a license or other action either restricting a
license or limiting or disciplining a licensee may not be taken until after an initial complaint of
misconduct, in writing, has been filed with the board in accordance with regulations promulgated
by the board. . . ." (emphasis added). 26 S.C. Code Regs. 81-12.5 provides that an initial
complaint may be made by (1) any individual, firm, or corporation (2) any physician licensed to
practice medicine or osteopathy, or (3) the Executive Director of the Board as provided in
Regulation 81-40. Pursuant to Regulation 81-13, a formal complaint may be issued only upon a
finding by a majority of the Board that an initial complaint made pursuant to Regulation 81-12.5 is
meritorious and warrants a hearing before the Disciplinary Panel as provided in Regulation 81-15.
The formal complaint must then be sent to the Respondent, setting forth the alleged misconduct
and giving notice that he has twenty days to file an answer. 26 S.C. Code Regs. 81-13 (1976).
After the filing of the answer or the expiration of the time for filing such, Regulation 81-15
requires the convening of a panel of three Commission members pursuant to Section 40-47-211.
A formal hearing must be held by the Commission Panel upon thirty days notice to the
complainant and the Respondent or his counsel. The Commission Panel is required to make
Findings of Fact and recommendations as to the disposition of the matter to the Board. See S.C.
Code Ann. § 40-47-211 (Supp. 1996); 26 S.C. Code Regs. 81-16 (1976). The Board must then
notify the Respondent of the Commission Panel's report and the place and time at which the
Board will consider the report. 26 S.C. Code Regs. 81-17 (1976). ". . . The Respondent and his
counsel shall have the right, and shall be so informed in said notice, to appear before the Board at
said meeting and to submit briefs and be heard in oral argument in opposition to or in support of
the recommendations of the panel . . . ." Id. After review, the Board must then determine
whether the Respondent is guilty of misconduct. 26 S.C. Code Regs. 81-18 (1976).
In analyzing the Appellant's contentions of being denied procedural due process, the
following underlying issues must be addressed:
1) Did the Private Agreement supplant or obviate the procedural requirements prescribed by S.C. Code Ann. § 40-47-200 and 26 S.C. Code Regs. 81-12.5 and 81-13, et seq. for the initiation of a disciplinary action against the Appellant?
2) Did the Appellant, through entering the Private Agreement, or otherwise, waive formal hearing procedures provided under S.C. Code Ann. § 40-47- 200?
This tribunal answers both of these questions in the negative. In doing so, this tribunal
does not question the validity of the Board's authority to exercise its discretion to discipline
medical practitioners under Section 40-47-200, to protect the life, health and welfare of the
people at large. Clearly such authority exists. See Gale v. State Bd. of Medical Examiners of
S.C., 282 S.C. 474, 320 S.E.2d 35 (1984). Neither does this tribunal question whether the
Appellant violated the Private Agreement, as he did.
However, the right to practice medicine is a property right of value which must not be
restricted without due process. Dantzler v. Collison, 230 S.C. 75, 94 S.E.2d 177 (1956), appeal
dismissed, 353 U.S. 939 (1956); Brown v. S.C. State Bd. of Educ., 301 S.C. 326, 391 S.E.2d
886 (1990); Ezell v. Rtholz, 188 S.C. 39, 198 S.E. 419 (1938); See also Anonymous v. State Bd.
of Medical Examiners, ___ S.C. ___, 473 S.E.2d 870 (Ct. App. 1996). When the state seeks to
revoke or deny a professional license, liberty and property interests are implicated and procedural
due process requirements must be met, including notice and opportunity for hearing appropriate
to the nature of the case. See Brown, supra. Furthermore, "No person shall be finally bound by a
judicial or quasi-judicial decision of an administrative agency affecting private rights except on
due notice and an opportunity to be heard. S.C. Const. Art. 1, § 22. The Appellant's procedural
due process was denied when the Board reached a decision to discipline the Appellant for
misconduct, while failing to adhere to the aforementioned procedural requirements necessary in
reaching such a conclusion.
This tribunal agrees with the Respondent that the terms of the Private Agreement are
crucial to a proper adjudication of this matter. The Private Agreement specifically states that it
does not constitute a disciplinary action under Section 40-47-200. The Agreement does not state
that a violation of its terms "constitute or would be deemed" misconduct. What the Agreement in
fact states is that any violation of its terms constitutes a violation of the Agreement itself, which
would result in immediate temporary suspension pending a hearing into the matter and until
further Order of the Board.
The Respondent argues that the language "pending a hearing into the matter and until
further Order of the Board" supplants or serves as a waiver to the formal hearing procedures
prescribed in Section 40-47-200 and its corresponding regulatory provisions.
This tribunal does not believe that such a reading is reasonable. A more plausible reading
of this language is that upon an alleged violation of the Private Agreement, the physician's license
would be immediately suspended until a hearing could be held to determine if the Agreement was
in fact violated. Thus, the Board would not need to seek a temporary restraining order or
injunction to preclude the Appellant from continuing to practice during the pendency of the
matter.
The Private Agreement expressly states that it is not a disciplinary action, therefore, a
violation of its terms is not necessarily or automatically equivalent to misconduct. To initiate
disciplinary proceedings, the Board must follow the procedures it promulgated which entails the
issuance of a formal complaint. One might argue that to conduct a subsequent disciplinary
proceeding, in addition to the October 21, 1996 hearing, is an exercise in futility. To the contrary,
"the guarantee of due process is one of the most important guarantees found in the United States
Constitution." Anonymous v. State Bd. of Medical Examiners, ___ S.C. ___, 473 S.E.2d 870
(Ct. App. 1996).
Further, failure to give the Appellant fair notice of the charges of misconduct against him
is a denial of procedural due process. See Burdge v. State Bd. of Medical Examiners, 304 S.C.
42, 403 S.E.2d 114 (1991). The Order of Suspension did not give such notice.
A prior situation involving an Interim Agreement between this Appellant and the Board is
analogous to the present case, and is useful in its disposition. When one examines the Interim
Agreement between the Board and the Appellant of June 5, 1988, it is evident that the "boiler
plate" language is very similar to the language in the Private Agreement of 1995. In the Interim
Agreement, it is specifically provided that "failure . . . to abide by any of the aforementioned terms
and conditions shall warrant the immediate suspension . . . pending hearing into the matter and
until further Order of the Board. . . . Failure to satisfactorily comply with such requests [requests
by the Board for documentation regarding doctor's practice] will be deemed a violation of this
"Interim Agreement." Again, this language is very similar to the Private Agreement. Yet, in the
1989 Consent Order, wherein the Appellant admitted violating the Interim Agreement by using
cocaine, it is apparent that a meeting was conducted to determine the violation of the Interim
Agreement. Moreover, it was specifically stated in the Consent Order that the Appellant waived
the formal hearing procedures and voluntarily consented to the disciplinary action.
Here, in the matter at hand concerning the violation of the Private Agreement of 1995, the
Appellant has not waived his right to the formal hearing procedures. See Boggs v. State Bd. of
Medical Examiners, 288 S.C. 144, 341 S.E.2d 635 (1986) (doctor waived his right to hearing
before fact-finding panel). It is evident from the Consent Order of 1989 that the Board
understood the importance of a bifurcated hearing process. It is further evident from this Consent
Order, that after conducting its "meeting" on the violation of the Interim Agreement, the Board
would have initiated subsequent disciplinary proceedings had the Appellant not consented to such
a waiver and the imposition of disciplinary action against his license.
No less consideration is deserved in the present case. The Order of Suspension did not
afford the Appellant notice that disciplinary actions under Section 40-47-200 were being
conducted by the Board. In entering the Private Agreement, the Appellant only consented to an
immediate temporary suspension of his license if he failed to comply with the terms of the
Agreement. After determining a violation of the Agreement, it was incumbent upon the Board to
then initiate disciplinary proceedings in accordance with Section 40-47-200 and applicable
regulatory provisions if it deemed discipline to be appropriate.
ORDER
In reviewing the errors alleged by the Appellant, in view of the reliable, probative, and
substantial evidence on the whole record, I find that the Appellant's procedural due process rights
were violated, as the Board did not adhere to the procedures prescribed in S.C. Code Ann. § 40-47-200 and Regulations 81-12.5 and 81-13, et seq. in issuing its Final Decision dated October 30,
1996. Therefore, without addressing the substantive due process issues raised by the Appellant, IT IS HEREBY ORDERED that the Board's Final Decision of October 30, 1996 in this
matter is vacated.
IT IS FURTHER ORDERED that this matter is remanded to the Board for adjudication
consistent with this Order and the procedural requirements prescribed in Section 40-47-200 and
Regulations 81-12.5 and 81-13, et seq.
FURTHER, as the Board's Final Decision is hereby vacated, the Board may reinstate the
suspension of the Appellant's license pursuant to the Private Agreement, until final adjudication of
this matter. The Board shall proceed expeditiously in reaching a final disposition of this case.
AND IT IS SO ORDERED.
________________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
Columbia, South Carolina
April 16, 1997 |