SC Administrative Law Court Decisions

PROCEDURAL HISTORY

This matter involves two cases, which were initiated by the Board of Dentistry in October of 2004. The Board alleged in each case that the Appellants, who are licensed dental hygienists, placed sealants over obviously decayed teeth of school age children. The hygienists denied those allegations, and also alleged that their actions were within the standard of care for their industry.

Prior to the hearing, the hygienists moved for production of all complaints filed against them. This request was denied by a letter from H. Rion Alvey, Administrator of the Board of Dentistry, dated October 12, 2005. The hygienists then filed an appeal from that letter[1] with this Court. Judge Kittrell heard oral arguments on November 18, 2005, and dismissed the appeal as interlocutory by Order dated November 22, 2005.

This matter was heard by a panel of the Board on December 1 and 2, 2005. (The panel consisted of five members, none of whom were members of the Board.) By agreement of the parties and the panel, the expert testimony presented by both sides was applied in both cases. After hearing evidence, the panel issued written reports and recommendations for the hygienists on February 6, 2006. In the cases of Hygienists 1 and 2, the panel found violations of the standard of care. The panel recommended that Hygienist 2 be given a public reprimand and a fine of $500, and that Hygienist 1 be given a public reprimand, but not fined.

At the final order hearing, which was held before the Board on April 28, 2006, counsel for LLR requested that the Board follow the panel’s recommendation as to both cases. The only exception was LLR’s request that the recommended sanctions be made public and anonymous. This request was based on the fact that these hygienists were the first ones in the public school dental program to face charges of substandard care with respect to the placement of sealants over decayed teeth. The Board accepted the recommendation of an anonymous public reprimand of Hygienists 1 and 2, but did not accept the panel recommendation of a fine in the case of Hygienist 2.

At the Final Order Hearing, the hygienists moved to recuse the Board members. While two Board members did recuse themselves, the remainder declined to do so. The hygienists also renewed their motion to be supplied with copies of the initial complaints. That motion was also denied. Final Orders in the cases of Hygienist 1 and 2 were issued on May 8, 2006. This is an appeal from those orders. This matter was heard by me on January 31, 2007, following full briefing by the parties.

STATEMENT OF THE CASE

This matter is before me pursuant to S.C. Code Ann. 40-15-200 (2001) and 1-23-600(D) (Supp. 2006). The Hygienists appeal their respective Final Orders issued by the South Carolina Department of Labor, Licensing and Regulation, State Board of Medical Examiners. In those Orders, the Board reprimanded both hygienists, holding that they failed to meet the standard of care in the practice of dental hygiene by placing sealants over obvious decay on several teeth in school-based settings.

On appeal to this Court, Appellants contend that the Board’s orders were erroneous because the Board failed to recognize the existence of an independent standard of care for dental hygienists working in a public healthcare school setting. Furthermore, Appellants contend that the Board’s sanctions were erroneous in the absence of harm or risk of harm to the patients, which they argue exceeds permissible state authority under the police power in violation of Appellants’ rights. Upon consideration of the Record on Appeal, all briefs and oral arguments, I find that the Board's Final Orders publicly but anonymously reprimanding Appellants must be affirmed.

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) (2006). S.C. Code Ann. § 1-23-380(B) (2006); see also S.C. Code Ann. § 1-23-600(D) (Supp. 2006). 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) (2006). 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).

DISCUSSION

1. The Board’s Finding that Both Appellants Placed Sealants Over Obvious Decay is Supported by Substantial Evidence.

a. Hygienist 1

On April 7, 2003, Hygienist 1 placed sealants over her 14 year old patients’ (M.A.) permanent molars.[2] The issue is whether Hygienist 1 placed seals improperly over “obvious decay” on teeth nos. 3, 15, 31 and 19 of M.A. The Hygienist contends that the Respondent failed to introduce sufficient evidence to identify which of the teeth were improperly sealed. As discussed below, I find that the Board’s decision was supported by the greater weight of the evidence.

About a month after the Hygienist sealed the teeth, on May 8, 2003, M.A. was seen for the first time by a dentist, Dr. Steven Chadwick. Dr. Chadwick’s hygienist took intra-oral photographs of teeth nos. 2, 3, 14, 15, 18, 19, and 31. Each photograph was numbered to correspond with the number of the tooth photographed, and the number is visible in the lower left corner of each photograph. These photographs, which were introduced at the hearing, clearly identify the teeth that were sealed by the Appellant.

Further, there is evidence that the teeth were obviously decayed when the Appellant sealed them. Dr. Chadwick testified that decay was visually apparent on the teeth nos. 3, 14, 15, 31, and 19 even with the sealants in place. A typical finding by Dr. Chadwick is as follows:

A. A lot of it is just eyes, okay? . . . We just looked at these and why did they seal these teeth. That’s sort of where we were coming from. The best example to me is the one labeled 31. I mean, that tooth, you can see right through the enamel and you can see the dentin and the dark.

* * *

That’s gross decay.

Q. Okay. How about 19?

A. It looks, it looks very similar. It’s obviously . . . you know, you can just look even not knowing anything about dentistry, it’s black. It’s not supposed to be black.

As Dr. Chadwick summarized his conclusions, “throughout all of these there was gross caries.”[3]

Dr. Sneed, a professor of dentistry at MUSC, also reviewed the photographs of this patient’s teeth and concluded that there was obvious decay, visible even through the sealants, on teeth nos. 31, 18, 15, 23, and perhaps 19. On tooth no. 31, for example, he noted that:

looking through the partially optically opaque sealants, you can see a halo of darkness underneath the sealant, extensive halo, which to me is indicative of and diagnostic of a pretty large amount of decay in that tooth.

It is apparent from the testimony of both doctors as well as the introduction of photographs of the teeth, that the Board based its decision upon the greater weight of the evidence. While Hygienist 1 claims that the testimony was not specific enough as to the teeth which were improperly sealed, the testimony and photographs, as previously summarized, very specifically identified the sealed teeth that were visibly decayed. Further, the Board’s Order refers to the specific teeth that the Board found to have been improperly sealed, i.e., nos. 3, 15, 31 and 19.

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). Because the Appellant has not met this burden, the Appellant’s challenge to the Board’s findings in the case of Hygienist 1 is affirmed.

b. Hygienist 2

The Board found as a fact that Hygienist 2 “placed sealant over obvious decay on several teeth, nos. 3, 14, 19 and 30” of a patient (Q.G.). As stated below, this finding is supported by the substantial evidence in the record.

Q.G. was approximately 12 years old at the time that these events occurred in 2003. He was a patient of Dr. Benjamin Adams, a dentist in Greenville. Dr. Adams first saw this patient in February and March 2003, at which time he diagnosed decay in tooth no. 30. As a result, Dr. Adams did an occlusal composite restoration on that tooth on March 4, 2003. When the patient returned to Dr. Adams on September 2, 2003, the doctor noted that there was “rampant decay” in the patient’s mouth. His chart shows that he planned to do restorations, i.e., fillings, on eleven different teeth, including nos. 3, 14, 19 and 30. He also planned to seal several other teeth that were decay-free at the time.

On September 18, 2003, the patient was seen by Hygienist 2 in connection with the public health dentistry program at his school. Hygienist 2 placed sealants over teeth nos. 3, 14, 19, and 30, all of which had been diagnosed by Dr. Adams sixteen days earlier as having decay and in need of restoration.

The testimonial evidence clearly supports the Board’s finding that the teeth were obviously decayed when the Hygienist placed sealants over the teeth. At the hearing, Dr. Adams was asked about the level of decay present on the four sealed teeth, i.e., teeth nos. 3, 14, 19 and 30 prior to their having been sealed. He testified as follows:

Q. Okay. Do you recall from memory what the level of decay was on those ones that you just called out? And I can really just limit it to the . . . because the only ones that were [subsequently] sealed, I think, were 3, 14, 19 and 30, I believe.

A. Well, clinically speaking, you don’t know the depth of it, but using my explorer and visualization, I immediately diagnosed all those teeth [i.e., 3, 14, 19 and 30] as having decay. Using my explorer, my sharp explorer with a light touch, I got a stick, as Dr. Sneed said, just like leather-like, put it in leather and it pulls back and you get a little stick, on all those. Also visualizing, especially number 3, number 3’s the one that I definitely recall seeing a dark halo on the occlusal surface from the decay present.

(Emphasis added). Dr. Adams further testified as follows:

Q. Would you characterize the decay that you observed on 9/2/03, how would you characterize that decay in terms of frank or incipient or somewhere in between?

A. It was frank. I would consider it frank because just with my naked eyes I could see a halo, an obvious halo, caused by decay on his virgin teeth. There was no question in my mind.

Dr. Adams also agreed that the decay he observed a few weeks before the sealants were placed “should . . . have been apparent to the hygienist who applied the sealants.” He based his opinion on the presence of an obvious halo of decay on the patient’s teeth.

Photographic evidence also supports the dentist’s findings. On October 7, 2003, several weeks after the sealants were placed by Hygienist 2, Dr. Adams took a color intra-oral photograph of the four sealed teeth. During that October 7 visit, Dr. Adams only filled one of the four molars, tooth no. 3. On that tooth, he removed the sealant and performed a fissurotomy.[4] He took another intra-oral photograph of just tooth no. 3 after the fissurotomy, and then one more photograph of the same tooth following further caries excavation. The photo after the fissurotomy and prior to the excavation confirmed Dr. Adams’ previous diagnosis of frank decay.[5]

The often-repeated standard of review in APA cases is that:

The possibility of drawing two inconsistent conclusions from the evidence does not prevent an Administrative Agency’s finding from being supported by substantial evidence. Grant v. S.C. Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995). Rather, the appellate court need only find, considering the record as a whole, evidence that would allow reasonable minds to reach the conclusion that the administrative agency reached. Id.

Bursey v. South Carolina Dept. of Health and Environmental Control, 369 S.C. 176, 631 S.E.2d 899, 906 (2006). Dr. Adams’ conclusion about frank decay, rendered particularly credible by having been reached even before the hygienist saw the patient, is clearly “evidence that would allow reasonable minds to reach the conclusion that the administrative agency reached.”

Appellant argues that Dr. Adams’ diagnosis depended on a physical examination of the teeth using his explorer which is outside the scope of her practice.[6] However, both the testimony of Hygienist 1 and Katherine Way, a hygienist employed by Dr. Chadwick, supports the position that an explorer is a common tool that is used by Hygienist.[7] Because the testimonial as well as photographic evidence supports the Board’s finding that the Hygienist placed sealants over gross decay, the Order of the Board is affirmed.[8]

2. The Standard of Care for Dental Hygienists is that Sealants should Not Be Placed Over Frankly or Obviously Decayed Teeth, Regardless of the Setting in Which they Practice,

Appellants contend that they did not violate the standard of care in their industry because the standard in the setting in which they practice -- i.e, the public school setting -- is less stringent. This contention is erroneous because there are minimal requirements of competence and professional standards that must be observed in any setting where a hygienist practices.

The standard of care in the practice of dentistry is not set forth in statutory law, but is sufficiently defined by case law. In Cox v. Lund, 286 S.C. 410, 334 S.E.2d 116 (1985), the Court established the two prong standard that must be satisfied by a plaintiff in a medical malpractice suit. This two-prong standard is similarly applied in this case when reviewing the Board's decision, when the inquiry is whether there is a departure from the established medical standard of care. Moreover, in setting forth such a standard, our Supreme Court has held that courts will “defer to the collective wisdom of a profession, such as physicians, dentists, ophthalmologists, accountants and any other profession which furnishes skilled services for compensation.” See Kemmerlin v. Wingate, 274 S.C. 62, 261 S.E.2d 50 (1981). Therefore, for the Board's decision to be upheld on appeal, the substantial evidence in the record must indicate that the Board (1) presented evidence of the generally recognized practices and procedures which would be exercised by a competent hygienist under the same or similar circumstances, and (2) presented evidence that the hygienist departed from the recognized and generally accepted standards, practices and procedures in the manner alleged by the State. See Cox, 286 S.C. at 411.

Dr. William D. Sneed, professor and Chairman of the Department of General Dentistry at MUSC, testified with respect to the standard of care where sealants are placed by dental hygienists. His testimony can be summarized as follows:

1. There is only one standard of care in South Carolina with respect to the placement of sealants by dental hygienists over frank cavitation. That standard of care applies in both public health settings and in private dental offices.

2. That standard of care is that sealants should not be placed over decay which is frank, i.e., involving gross carious lesions.

3. A dental hygienist should be able to detect frank cavitation on a molar. The tools available to hygienists for making this determination include visual examination with the naked eye and the use of explorer tools.

Dr. Sneed further testified that the reasons for not placing sealants over frank decay are that

. . . you’d give a false sense of security to the patient and to the parent. . . .[I]t would be very difficult to achieve a hermetic seal, a very good seal.

* * *

And if it breaks, if that seal breaks and you’ve left decay, it is rampant. It becomes . . . in a matter of months you could have an exposure, a toothache, a root canal. So my concern with sealing a frankly cavitated lesion would be just that. You might get a sealant right now possibly, you may very well, but is it going to stay there. We see it all the time, a portion comes loose, now it leaks; the patient has a false sense of security, it’s an opaque sealant, mama sees something white on there, it looks fine, and it may progress extremely rapidly. The same thing happens with a cracked filling. If you have a cracked amalgam and the amalgam is loose but won’t fall out, that’s the worst possible scenario, because now it’s leaking, saliva, bacteria, sugar, so forth are getting up under there.

In contrast to this testimony of Dr. Sneed, the expert retained by the Appellants, Dr. Simonsen, took the position that “it is okay to place sealant under any circumstances.” His testimony, however, was given less credence by the Board because evidence was introduced that the expert told Dr. Sneed in an e-mail exchange over a year before the hearing that caries could progress under an inadequately placed sealant, thereby leading both to increased decay and a false sense of security on the part of the patient and the parent. While Dr. Simonsen attempted to qualify these remarks at the hearing, his e-mail, which was presumably written before he was retained by the Appellants to testify in this case, made it clear that he and Dr. Sneed are in agreement that it is inappropriate to place sealants over frank cavitation.[9] Moreover, it appears that Dr. Simonsen based even his revised view on an unduly optimistic scenario:

. . . I can’t imagine that a sealant would be placed over a carious lesion without the parent or the child being informed that there is caries present and that requires attention of the dentist.

The Board credited the opinion of Dr. Sneed (and impliedly also credited the original opinion of Dr. Simonsen) by concluding that “there is a deviation from the standard of care, regardless of setting (including the public health setting), when sealant is placed over clinically obvious decay.”

Further, Dr. Sneed’s opinion is consistent with the DHEC “Guidelines for SC School-Based Dental Prevention Programs.” Those Guidelines were incorporated into the contract between DHEC and the hygienists’ employer. On the last page of the Guidelines, there is a decision tree. It indicates that in the public health setting, sealants should be placed over “questionable” teeth, that is, those for which it is not certain that surface (enamel) decay is present, and also over teeth which have enamel or surface decay. In instances where there is decay in the dentin, that is, below the surface

(which existed in the present two cases), the Guidelines make no mention of sealing the tooth, instead noting that the tooth should be restored, i.e., filled. In other words, the “double standard” that Appellants argue for is not even found in the terms of their agreement with DHEC for just this public health setting.[10]

Also contrary to the position of Appellants’ counsel is the testimony of Hygienist 2, who testified that sealants should be placed only on “all kids that don’t have gross decay.” She also agreed that it was part of her responsibility to be able to spot gross decay. The other hygienist, Hygienist 1, likewise testified that she does not seal gross decay. Hygienist 1 also agreed that part of her training was to enable her to recognize tooth decay.

After reviewing the testimony of the Hygienist and the experts, I find that the Respondents presented substantial evidence to show that the Hygienist deviated from the generally recognized practices and procedures which would be exercised by competent hygienists under the same or similar circumstances. “It is generally recognized that the trier of fact, who has the opportunity to observe the witnesses and listen to their testimony in person, is in the best position to determine issues of witness credibility.” Dixon v. Dixon, 336 S.C. 260, 263, 519 S.E.2d 357, 358 (Ct. App. 1999). My finding, which is consistent with that of the Board’s, is that Dr. Sneed’s testimony was more than merely “substantial”; it was the more credible testimony offered because it was internally consistent and consistent with the testimony of the hygienists concerning their standard of care. Therefore, the Board’s finding that the Hygienist deviated from the standard of care in the industry is affirmed.

Compliance with this minimal standard of practice should not “chill” the public health dental hygiene program. The Board was careful to note that the hygienists were not required to find decay when decay was not apparent to them using the tools they had available to them. Thus, the Board concluded that “In the settings involved in this and companion cases, it is especially important to determine what the hygienist was able to or should have been able to determine with the means at her disposal.” Moreover, in these first instances of violation of the standard of care in this area, the Board issued the most minimal sanctions it could have issued while still making the standard of care publicly known to the community of dental professionals.

3. Proof of Actual Harm of a Specific Nature is Not an Element of a Professional Disciplinary Proceeding.

Appellants argue that the Respondent exceeded its authority under the state’s police power and violated Appellants’ rights by finding that they committed professional misconduct in the absence of harm to the patients.

It is true that 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 in violation of constitutional or statutory provisions or in excess of the statutory authority of the Board. S.C. Code Ann. § 1-23-380(A)(6) (2006). However, this is not one of those instances because the Appellants fail to take into account the difference between a professional disciplinary proceeding and a professional malpractice claim.

In a malpractice case, the patient is seeking to recover damages because of harm actually done to him by the actions of the professional. In that context, the plaintiff can recover damages only if he actually suffers harm.

The purpose of professional disciplinary proceedings in cases of this kind is to protect the public from substandard professional care. It is therefore clear that professional misconduct is not excused simply because for some reason the patient did not suffer harm. See In Re Matter of H. Jackson Gregory, 332 S.C. 13, 503 S.E.2d 735 (1998) (Finding that an attorney violated Rule 1.1 of the Professional Rules of Conduct for failing to provide competent representation even though no harm to the parties resulted from the attorney’s inattention to detail in keeping his client’s finances).

In the present two cases, no harm resulted to some of the patients’ teeth for the simple reason that the patients visited dentists not long after the sealants were placed. However, as discussed above, this absence of harm has no bearing on the Board’s ability to discipline the hygienists. Therefore, I find that the Board acted within its authority when it found that the Appellant committed professional misconduct.

4. The Board’s Failure to Disclose the Initial Complaints In these Cases.

With respect to their request to see the original complaints filed against them, Appellants have argued that this case is identical to the Medical Board case of South Carolina Department of Labor, Licensing and Regulation v. Girgis, 332 S.C. 162, 503 S.E.2d 490 (Ct. App. 1998). The Board argues, however, and the Court agrees, that the statutes requiring that information in Dental Board cases be kept confidential are substantially different from the Medical Board statute applied in Girgis. In addition, the General Assembly has in recent years enacted a number of provisions indicating that Girgis required the agencies to disclose more than the legislature ever intended.

The Medical Board statute in effect when Girgis was decided, then-Section 40-47-212, contained the language quoted below:

Every communication . . .made by . . .any person . . . to the [Medical] Board . . . by way of complaint or testimony . . . shall be privileged; and no action or proceeding, civil or criminal, shall lie against such person . . .except upon proof that such communication was made with malice.

No part of this article shall be construed as prohibiting the respondent or his legal counsel from exercising the respondent's constitutional right of due process under the law, nor to prohibit the respondent from normal access to the charges and evidence filed against him as a part of due process under the law.

(Emphasis added.)

The statutes pertaining to the Board of Dentistry contain similar language to the first paragraph quoted above. Specifically, § 40-15-180(4) provides that

(4) Every communication . . made by or on behalf of any complainant . . . to the board . . . by way of complaint or testimony, shall be privileged, and no action or proceeding, civil or criminal, shall lie against any such person. . . by reason thereof.

In addition to this provision, however, there are two provisions in the Dental Practice Act that do not appear in the former Medical Practice Act. Section 40-15-180(3) provides:

(3) All investigations and proceedings undertaken under the provisions of this chapter shall be confidential.

(Emphasis added.) In addition, § 40-15- 215 provides that

[a]ll information, investigations, and proceedings concerning the circumstances underlying an action by the holder of the license or certificate is privileged and confidential.

(Emphases added.)

Finally, the Dental Practice Act does not contain the language, found in the former Medical Practice Act, that its provisions do not “prohibit the respondent from normal access to the charges and evidence filed against him as a part of due process under the law.” Instead, the Dental Practice Act provides that “The accused shall have the right to be confronted with and to cross-examine the witnesses against him and shall have the right to counsel.” § 40-15-180(1).

While the language pertaining to “access to the charges and evidence filed against the respondent as part of due process under the law” is absent from the Dental Practice Act, it is nevertheless present in § 40-1-190(B), the overall governing statute for LLR boards. Section 40-1-190(B) provides that

Nothing in this article may be construed as prohibiting the respondent or the respondent's legal counsel from exercising the respondent's constitutional right of due process under the law or as prohibiting the respondent from normal access to the charges and evidence filed against the respondent as part of due process under the law.[11]

The presence of this language in the general governing statute does not, however, serve to vitiate the more specific language in the Dental Practice Act. It is, of course, well settled that

Where there is one statute addressing an issue in general terms and another statute dealing with the identical issue in a more specific and definite manner, the more specific statute will be considered an exception to, or a qualifier of, the general statute and given such effect.

Capco of Summerville, Inc. v. J.H. Gayle Const. Co., Inc., 368 S.C. 137, 142, 628 S.E.2d 38, 41 (2006).[12] The Dental Practice Act contains a more specific, more limited, provision regarding access to information. Instead of providing for “access to the charges and evidence filed against the respondent as part of due process under the law,” as set forth in the general provisions of § 40-1-190(B), the Dental Practice Act limits such “access” by providing only that “[t]he accused shall have the right to be confronted with and to cross-examine the witnesses against him. . . .” This language, by its plain terms, requires only that a licensing board must permit cross examination of witnesses who testify before the Board against the respondent licensee.[13] This right was accorded in this case.[14]

The Dental Practice Act also contains other specific provisions not found in either the former Medical Practice Act construed in Girgis or in the general provisions of Chapter 1 of Title 40. As noted above, § 40-15-180(3) provides:

(3) All investigations and proceedings undertaken under the provisions of this chapter shall be confidential.

(Emphasis added.) In addition, § 40-15- 215 provides that

[a]ll information, investigations, and proceedings concerning the circumstances underlying an action by the holder of the license or certificate is privileged and confidential.

The term “confidential” was not to be found in the former Medical Practice Act. See former §§40-47-212, 40-47-213. Girgis, construing a statute which used only the term “privileged” and not the additional term “confidential,” concluded that “the privilege referred to in the identical statute is a privilege against liability rather than an absolute privilege against disclosure of the name of the complainant.” 332 S.C. at 170, 503 S.E.2d at 494. It is unlikely that the Court of Appeals would have held the initial complaint disclosable if the language requiring confidentiality had been present in the former Medical Practice Act.

Several post-Girgis developments also support this Court’s holding that the General Assembly has not intended for LLR to disclose initial complaints in disciplinary cases. In 2005, the General Assembly effectively abrogated any requirement of Girgis that the initial complaint must be supplied to the licensee in Medical Board cases. Section 40-47-213(A)(2), as amended by Act No. 150 of 2005, provides that

The name of the initial complainant must be provided to the licensee who is the subject of the complaint, investigation, or proceeding unless the board, hearing officer, or panel determines there is good cause to withhold that information.

(Emphases added.) This amendment of the Medical Practice Act clearly indicates that the General Assembly has never intended for the initial complaint itself to be supplied to the licensee; indeed, the amended Medical Practice Act even allows the Medical Board to withhold the identity of the complainant if there is good cause to do so. The amendment therefore provides another reason why the Board was correct in declining to provide Appellants with the initial complaints in these cases.

Another post-Girgis development shows that there was never an intent for Chapter 1 of Title 40 to supersede the more specific provisions in the statutes pertaining to each particular licensing board. The new Medical Practice Act begins with a provision setting forth the following rule of construction:

(A) Unless otherwise provided for in this chapter, Chapter 1, Title 40 applies to the profession or business regulated under this chapter. However, if there is a conflict between this chapter and Article 1, Chapter 1, Title 40, the provisions of this chapter control.

§ 40-47-5 (Supp. 2006). The Dental Practice Act has not received an overall revamping since the 1996 enactment of Chapter 1 of Title 40, but in the cases of boards like the Medical Board whose legislation has been reworked since 1996, the legislation starts out with this language to the effect that the legislation for the specific board controls the general provisions of Chapter 1. See, e.g., § 40-3-5 (Architecture Board); § 40-33-5 (Nursing Board); § 40-22-5 (Engineering Board). The consistency with which the General Assembly inserts this provision into revisions indicates a clear intent that the general provisions were never intended to supersede the legislation pertaining to individual boards.

5. Appellants’ Motion to Recuse Was Properly Denied, Because Appellants Did Not Make A Prima Facie Showing of Bias by the Board Members Who Heard this Case.

Appellants claim that persons engaged in the private practice of dentistry want to suppress the use of preventive care in school settings by hygienists because “caries-free teeth, or reduced incidence of caries, are not economically beneficial to the private practice of dentistry when providers can recover larger revenues from restorative dentistry than they can from preventative care.”

In Kizer v. Dorchester County Vocational Educ. Bd. of Trustees, 287 S.C. 545, 340 S.E.2d 144 (1986), the Supreme Court of South Carolina held that school board members, and presumably other administrative tribunals,

are clothed with a presumption of honesty and integrity in the discharge of their decision-making responsibilities. [Citations omitted] In order to disqualify a hearing tribunal, actual bias rather than a mere potential for bias must be shown. [Citations omitted] Individual decision makers must not have exhibited bias as to the factual questions to be decided at hearing, and evidence of actual bias which offends due process consists of statements on the merits by those who must make factual determinations on contested fact issues where fact finding is critical. [Citations omitted] It is not actual bias to have made statements as to policy issues related to a dispute. . . .Id at 148.

The allegations of the Appellants are several steps removed from amounting to a prima facie showing of possible bias.

First, Appellants’ allegations are not statements of fact, but rather conclusory and broad assertions that members of the Board would be prejudiced towards hygienists who exercise preventative care. The Court of Appeals has held that “it is not enough for a party to allege bias; a party seeking disqualification of a judge must show some evidence of bias or prejudice.” Reading v. Ball, 291 S.C. 492, 494, 354 S.E.2d 397, 398 (Ct. App. 1987). As stated by the Supreme Court of Alabama, “recusal is not required by a mere accusation of bias unsupported by substantial fact.” Acromag-Viking v. Blalock, 420 So.2d 60, 61 (Ala. 1982). Appellants have shown no facts, but have only offered unsubstantiated arguments in support of their claims.

Secondly, the allegations would appear to relate to statements concerning policy issues, which were held in Kizer, supra, not to be proper subjects of a motion to recuse. Appellants’ allegations about general policy have no relation to the issues in these cases, which as Kizer held, are “factual determinations on contested fact issues where fact finding is critical.” Nor would Appellants’ allegations even remotely suggest that any member of the current Dental Board might be inclined to reach predetermined conclusions about the facts of these cases.[15]

Finally, Appellants suggest that recusal is appropriate under the standard enunciated in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988). There, it was held that recusal is required “if a reasonable person, knowing all the circumstances, would expect that the judge would have actual knowledge [of facts that would make him susceptible to a charge of bias].” 486 U.S. at 861. However, the facts of Liljeburg are far different from those here. In that case, the district judge was a current trustee of a university that had a cognizable interest in the litigation. Such a connection to the case was sufficient, the Supreme Court held, to cause an objective observer to question the judge’s impartiality. In the present case, however, there is simply no connection between being a dentist and having the ability to conduct a fair hearing on the issue of whether dental sealants might have been improperly placed in a few apparently isolated cases.

As previously indicated, one Board member, Dr. Millwood, recused himself at the outset of the hearing.[16] Although Appellants had made no particular showing indicative of potential bias, the Board nevertheless did permit counsel for Appellants to conduct a voir dire of the sitting Board members. Following that voir dire, each remaining member of the Board, except Dr. Bedell as already indicated, declined to recuse himself or herself. This was not error, in light of the absence of a showing of bias by the Appellants. See State v. Hawkins, 310 S.C. 50, 425 S.E.2d 50 (1992) (holding that a judge’s alleged financial interest as a taxpayer in a county being sued by the criminal defendant did not entitle the defendant to recusal of the judge from the criminal case because nothing indicated actual bias or prejudice by the judge).

Because Appellants have made no showing of what additional evidence they would desire to present, nor, more importantly, have they made any attempt to show that they were not able to present it to the Board, the Appellants Motion to Recuse was properly denied.

ORDER

For the foregoing reasons, the Court concludes that the Orders of the Board in these two cases must be, and hereby are, affirmed.

AND IT IS SO ORDERED.

______________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

October 25, 2007

Columbia, South Carolina