ORDERS:
ORDER
AFFIRMED
I. Statement of the Case
This is an appeal from the May 16, 1995, decision of the State Board of Nursing (Board) of the
South Carolina Department of Labor, Licensing and Regulation suspending appellant's license to
practice nursing. Appellant Bettie Jean Williams Hayes, on June 7, 1995, timely filed an appeal of
this decision with the Administrative Law Judge Division (Division). Jurisdiction is vested in this
Division pursuant to S.C. Code Ann. §40-33-931 (Supp. 1994) with review conducted under S.C.
Code Ann. §§1-23-600(D) (Supp. 1994) and 1-23-380(B) (Supp. 1994).
II. Standard of Review
The Administrative Procedures Act establishes the "substantial evidence" rule as the standard for
judicial review of decisions of the boards coming within its terms. Therefore, in reviewing the
findings of the Board, this Division is limited to determining whether the findings are supported by
substantial evidence. S.C. Code Ann. §1-23-380(A)(6) and (B) (Supp. 1994); Lark v. Bi Lo,
Inc.,276 S.C. 130, 276 S.E.2d 304 (1981).
S.C. Code Ann. §1-23-380(A)(6) (Supp. 1994), which governs the scope of judicial review in this
matter, provides in pertinent part:
The court shall not substitute its judgment for that of the agency as to the weight of the
evidence on questions of fact. The court may affirm the decision of the agency or remand
the case for further proceedings. 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:
. . .
(e) clearly erroneous in view of the reliable, probative and substantial evidence on the
whole record . . .
" '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, 306
(1981); McGuffin v. Schlumberger-Sangamo, et al., 307 S.C. 184, 414 S.E.2d 162 (1992). It is
not the role of this Court to substitute its judgment for that of the Board unless the Board's
decision is affected by error of law or clearly erroneous in light of the reliable, probative, and
substantial evidence in the record. State ex re. Medlock v. S.C. Coastal Council, 289 S.C. 445,
346 S.E.2d 716 (1986). The review in this matter is limited to the record presented to the Board.
III. Facts Presented by the Record on Appeal
On November 7, 1993, Hayes allegedly was involved in an incident involving an eleven year old
patient. Hayes allegedly failed to assist in the administration of antibiotics to the patient and then
failed to notify her supervisor or the patient's physician that the patient had not been given three
doses of the medication. Also, on that date Hayes was alleged to have had an incident involving a
seventy-nine year old patient. Hayes allegedly infused portions of two intravenous bags of
antibiotic when the physician's order required that she infuse one dose of the antibiotic. Further,
allegedly Hayes then failed to notify her supervisor or the patient's physician of complaints
expressed by the patient or that there were problems with the infusion of the antibiotic. Finally,
allegedly Hayes failed to document the incident in the nursing notes.
On July 8, 1994, the Board filed a complaint against Hayes based upon the above two incidents.
The Board asserted Hayes had committed misconduct alleging Hayes had "violated a ... regulation
... of the board" as that phrase is used in S.C. Code Ann. §40-33-935 (Supp. 1994). More
specifically, the Board alleged that Hayes violated S.C. Code Regs. 91-19.c(2) (Supp. 1994) in
that she failed to demonstrate and apply the knowledge, skill and care that is ordinarily possessed
and exercised by other nurses of the same licensure status and required by the generally accepted
standards of the profession. Second, the Board alleged that Hayes violated S.C. Code Regs.
91-19.c(3)(h) (Supp. 1994) in that Hayes omitted, in a grossly negligent fashion, to record
information concerning a patient which would be relevant to that patient's condition. Finally, the
complaint alleged Hayes violated S.C. Code Ann. Regs. 91-19.c(3)(j) (Supp. 1994) in that she
failed to make or keep accurate entries in records as required by law, policy and standards for the
practice of nursing.
According to Hayes' brief, Hayes and a Board employee, Maggie S. Johnson (Johnson),
conducted negotiations on the contents of a Stipulation and Petition which, if signed by Hayes and
accepted by the Board, was intended to result in Hayes being placed on a one year probation with
conditions. In a letter dated February 23, 1994 from Johnson to Hayes, Johnson states "this is my
final revision." (Emphasis in original.) This letter was not a part of the Record on Appeal as filed
by the Board; however, counsel for the Board has stipulated to inclusion of the February 23, 1994
letter. Proposed Stipulations as of March 2, 1994 do not contain a requirement that the employer
of Hayes be "Board approved" but rather such language was added later by the Board in reaching
the final stipulations. Again, however, while no revisions of the Stipulations are in the Record on
Appeal as filed by the Board, counsel for the Board stipulated such revisions are part of the
Record on Appeal.
On August 11, 1994, a final Stipulation and Petition was signed by Hayes with this Stipulation
containing a statement that Hayes "agrees to be employed by a Board-approved employer and to
submit written employer reports every three months during the period of discipline." The
Stipulation agreed that Hayes would be on probation for one year from the date of the Board's
action on the petition. The Board acted on September 29, 1994, by accepting the Stipulation and
Petition and on October 4, 1994, gave notice to Hayes that the Order of September 29, 1994 had
been filed.
On November 15, 1994, by letter from Hayes to Johnson, Hayes gave notice that Mr. Curtis
Williams, Chairman of the Board of Paramedic Service Center, would provide employer reports
on Hayes. Consistent with such notice, on November 16, 1994, Mr. Jay C. Williams, CEO of
Paramedic Service Center, Myrtle Beach, South Carolina, wrote stating he was carrying out the
duties under the Stipulation as the employer of Hayes and that he was extremely pleased with the
work performance and demeanor of Hayes.
On November 28, 1994, Johnson notified Hayes that a job description was needed of her
employment with Paramedic Service Center which request resulted in a letter of December 8,
1994, from Hayes to Johnson giving a job description of Hayes' employment as an Independent
Insurance Exam Contractor. The description explains that Hayes performs insurance exams
including medical history, blood pressure, pulse, height, weight, chest and waist measurements
and urine specimens. Such duties also included blood draws and electro-cardiograms when
needed.
On December 16, 1994, Johnson wrote to Hayes asking if Williams was her father. The letter
advised Hayes that Johnson believed the Board wanted Hayes supervised by an RN. The letter
advised Hayes that the issue of supervision would be addressed by the Disciplinary Review
Committee on January 5, 1995, at 12:15 p.m. and that Hayes could be present at that meeting.
On January 14, 1995, Johnson advised Hayes that the Disciplinary Review Committee on January
5, 1995 found that "because your father is supervising you and is not an RN or doctor, Paramedic
Service Center is not a Board approved employment in nursing."
Notwithstanding Johnson's notice that Paramedic was not a Board approved employer, Hayes on
February 17, 1995, submitted her second three month report to the Board based on her
employment by Paramedic and Jay C. Williams of Paramedic Service Center, also on February 17,
1995 provided Johnson an employer's progress report stating that Hayes has shown she is a
competent nurse in the area of insurance examinations and is an astute business person.
On March 1, 1995, the Board filed a complaint alleging that Hayes was on probation due to
medication errors as a home health nurse. It further alleged that Hayes had not complied with the
September 29, 1994 Order of the Board which had accepted the August 11, 1994 Stipulations.
The failure to comply was based upon the allegation that Hayes failed "to be employed by a
Board-approved employer. She is presently employed at Paramedic Service Center as President.
Paramedic Service Center is a business specializing in insurance physical and drug screening,
including testing for the HIV virus. Ms. Hayes is supervised by her father who is Chairman of the
organization." On March 7, 1995, the Board notified Hayes that the hearing on the complaint
would be held at 12:00 p. m. on March 30, 1995.
A contested case hearing on this matter was held before the Board on March 30, 1995. The
Board issued its final Order on May 16, 1995, suspending the nursing license issued to Hayes for
failure to comply with all of the conditions of the probation in that she "failed to work in a
Board-approved employment setting where she is supervised by a registered nurse or medical
doctor." Further, the Board did not approve of Paramedic Service Center as acceptable
employment "because respondent's father (who is not a licensed medical professional) serves as
her supervisor." "[H]er supervisor lacks the medical knowledge and potentially lacks the
objectivity to properly evaluate the respondent's nursing practice." The suspension would
continue until Hayes reappeared before the Board with a Board-approved employer and was
supervised by an RN or MD. Additionally quarterly written personal and employer reports were
required as to Hayes' progress. This appeal followed.
IV. Discussion of Issues
Appellant raises the following issues in her Petition and Brief:
1. Coercion in Obtaining Stipulations
Appellant asserts that she was coerced into signing the Stipulation and Petition because she feared
refusal to sign would be interpreted as an unwillingness to fully cooperate with the Board. She
further asserts that she did not feel she was guilty of any misconduct and did not agree with the
terms of the stipulations, but signed only to avoid a "long drawn out court battle." The Board
counters that the stipulations were negotiated and agreed upon, and further asserts that appellant
has failed to timely appeal any exceptions to the Stipulations and Petition. The Board asserts that
appellant freely and voluntarily entered into the agreement, as she was asked at the time of signing
if she understood and consented to the terms and she responded in the affirmative. Moreover,
paragraph 12 of the Stipulation and Petition states that she "submits to this stipulation freely and
voluntarily and not under duress, restraint or compulsion."
There is no evidence in the record that this issue was raised before the Board. As the appellate
court sitting to review the decision of the Board, this Division has a limited scope of review and
cannot ordinarily consider issues that were not raised to and ruled on by the administrative
agency. Kiawah Resort Associates v. S.C. Tax Comm'n, ___S.C. ___, 458 S.E.2d 542 (1995),
citing Cook v. S.C. Dep't of Highways and Pub. Transp., 309 S.C. 179, 420 S.E.2d 847 (1992);
73A C.J.S. Public Administrative Law and Procedure § 191 (1983)(as a general rule, questions
that have not been raised or urged in the proceedings before the administrative agency will not be
considered by the court on review of the order of such agency). This issue, therefore, is not
properly before me.
2. Oral Agreement As To Paramedic Service Center
Appellant argues that based on representations made to her by her attorney at the time the
Stipulation and Petition was executed, she believed and understood that employment with
Paramedic Service Center was approved by the Board. The Board's position is that employment
with Paramedic Service Center would not afford appellant sufficient and appropriate supervision
to rehabilitate her and allow her to re-enter the practice of nursing unmonitored.
The Stipulation and Petition was signed on August 11, 1994. Appellant, on November 15, 1994,
gave notice to the Board of her employment with Paramedic Service Center, under the
supervision of the Chairman of the Board, Mr. Curtis Williams. After receipt of a progress
report, the Board requested a job description on November 28, 1994. These facts demonstrate
the Board was not made aware of the type and nature of her employment until after the signing of
the Stipulation and Petition. Additionally, there is no evidence in the signed document to suggest
pre-approval of Paramedic Service Center. Moreover, there is no evidence in the record to
support any variation from the written Stipulation and Petition. Appellant's argument is without
sufficient evidentiary support to show the Board's decision disapproving Paramedic Service
Center is clearly erroneous.
3. Suspension for Failure to Obtain Employment With a Board Approved Employer
Appellant argues that the Board erred in concluding that employment with Paramedic Service
Center under her father's supervision was in violation of the terms/conditions of the Petition and
Stipulation dated August 11, 1994. She asserts that employment with Paramedic should be
approved because her father supervises her job performance and submits written reports to the
Board as required.
The Board asserts that because Appellant failed to comply with the terms of the Petition and
Stipulation, her nursing license should be suspended. The Stipulation and Petition, signed by
Appellant and consented to by the Board, sets forth the condition that Appellant be employed by a
Board-approved employer. By letter dated January 5, 1995, the Board apprised Ms. Hayes that
Paramedic Service Center was "not a Board approved employment in nursing." Paramedic
Service Center is a business specializing in the performance of physical and drug screening for
insurance purposes. By her own admission, employment with Paramedic Service Center is
outside the usual nursing setting, and performance of her duties does not require a license in
nursing. Additionally, her father is neither a nurse or doctor of any sort or kind licensed to
practice in South Carolina, therefore, lacks the medical knowledge and potentially lacks the
objectivity to properly evaluate her nursing practice.
It is clear that employment with Paramedic Service Center does not comport with the
requirements of the Stipulation and Petition. There is no evidence in the record to show that the
Board erred in finding that Appellant did not comply with the terms of the Stipulation and
Petition. In fact, substantial evidence exists to support the Board's finding that employment with
Paramedic Service Center is not in a Board approved employment setting where she is supervised
by a registered nurse or medical doctor.
Appellant further argues that employment outside the usual nursing setting is not enumerated as a
ground for suspension or other discipline under S.C. Code Ann. §40-33-935 (Supp. 1994). The
Board is authorized to suspend Appellant's license pursuant to S.C. Code Ann. §40-33-930
(Supp. 1994), which reads in pertinent part: "The [B]oard . . . may order the revocation or
suspension of a license to practice nursing as a registered nurse[.] . . . The [B]oard may also
impose restraint upon the nursing practice of the licensee as circumstances warrant until the
licensee demonstrates to the [B]oard adequate professional competence." In Gale v. State Board
of Medical Examiners, 282 S.C. 474, 320 S.E.2d 35 (Ct. App. 1984), the Court of Appeals held
that the Board is not required by the statutes to invoke certain sanctions for certain violations and
that a showing of any misconduct ... may result in license revocation, suspension, restriction, or
limitation. Therefore, the Board clearly acted within its authority in imposing a suspension of
Appellant's nursing license.
Appellant further argues that she pursued employment outside the usual nursing setting because
she was unable to find suitable employment that would satisfy the conditions of the Stipulation
and Petition. Hayes admitted that an RN was employed by her company and that possibly that
individual could supervise Hayes if Hayes performed nursing duties. Counsel for the Board
implied such a procedure could be developed. Counsel for the Board also implied if suitable
employment was shown to be impossible, Hayes could petition the Board for an alteration of the
suspension to allow remedial training as approved by the Board.
Suspension of the nursing license is a sanction within the Board's scope of authority. Appellant
has failed to meet the burden of establishing grounds for reversal of the Board's decision.
Therefore, the Board's Order to Suspend Nursing License, dated May 16, 1995, is affirmed in
whole.
IT IS SO ORDERED.
________________________________
RAY N. STEVENS
Administrative Law Judge
This 22nd day of September, 1995. |