ORDERS:
ORDER
STATEMENT
OF THE CASE
This
matter is an appeal by Brett Russell, a
licensed physical therapist, from an Amended Final Order of the South Carolina State
Board of Physical Therapy Examiners (Board) dated February 22, 2008. In its
Amended Final Order, the Board sanctioned Russell for violating Principle 3 of
the Code of Ethics for Physical Therapists as set forth in 26 S.C. Code Ann.
Regs. 101-13 (Supp. 2007). Russell contends that two of the sanctions imposed by
the Board – a public reprimand and a $1,000 fine – were outside the scope of
the Board’s authority. Russell further contends that the Board erroneously found that Russell accepted $14,000 from a
patient of his (Patient) while serving as Patient’s physical therapist. Upon
review of this matter, the Board’s Amended Final Order is reversed, and this
matter is remanded to the Board as set forth herein.
BACKGROUND
On March 8, 2007, the
Board issued a Formal Accusation alleging that Russell served as a physical
therapist to Patient from approximately 1998 to 2002 and that, during that time
period, he solicited and received gifts and loans from Patient in excess of
$17,000.00. According to the Formal Accusation, Russell’s conduct violated Regulation
101-13, as well as S.C. Code Ann. §§ 40-45-110 and 40-1-110(c),(f),(g),(k) and
(l).
On October 11, 2007, Russell
and the Board entered into a Memorandum of Agreement and Stipulations (Memorandum).
In the Memorandum, Russell stipulated that he had a physical-therapist/patient
relationship with Patient from approximately January 7, 1998 to April 30, 2001.
He further stipulated that he accepted approximately $14,000 from Patient
during that time period. That latter stipulation, however, was inconsistent
with Exhibit 3 of the Memorandum, which indicated that of the approximately
$14,000 Russell accepted from Patient he received $5,577.20 from January 7,
1998 to April 30, 2001.
On February 22, 2008,
the Board issued an Amended Final Order in which it found that Russell admitted
to having a physical-therapist/patient relationship with Patient from approximately
January 7, 1998 to April 30, 2001. It further found that Russell admitted to accepting
approximately $14,000 from Patient during that time period. Based on those
findings, the Board concluded that Russell violated Principle 3 of the Code of
Ethics for Physical Therapists as set forth in Regulation 101-13.
Consequently, the Board imposed a fine of $1,000.00 on Russell, ordered that he
be publicly reprimanded, and required him to attend a course on ethics.
Russell
now appeals.
ISSUES
PRESENTED
1. Did
the Board err as a matter of law and abuse its discretion by publicly
reprimanding Russell and fining him $1,000?
2. Did
the Board improperly find that Russell accepted $14,000 in loans and other
payments from Patient while serving as Patient’s physical therapist?
STANDARD
OF REVIEW
This
case is before the Administrative Law Court (ALC or Court) pursuant to S.C.
Code Ann. § 1-23-600(D) (Supp. 2007) and S.C. Code Ann. § 40-1-160 (2001) upon an
appeal from a final decision of a licensing board or commission. As such, the
Administrative Law Judge sits in an appellate capacity under the APA rather
than as an independent finder of fact. In South Carolina, the provisions of
the APA -- specifically S.C. Code Ann. §1-23-380(5) (as amended by 2008 S.C. Act
No. 334) -- govern the circumstances in which an appellate body may reverse or
modify an agency decision. That section sets forth:
The court may not substitute its judgment for the judgment 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 [of the agency] 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
agency;
(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 or capricious or
characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
S.C. Code Ann. § 1-23-380(5) (as amended by 2008 S.C. Act No. 334).
DISCUSSION
The Board’s
authority to publicly reprimand
Russell and to impose a fine of $1,000
Russell argues that the
Board erred as a matter of law by publicly reprimanding Russell and by fining
him $1,000. Specifically, Russell argues that the Board did not have the
authority to impose those sanctions. The Court disagrees.
As noted above, the
Board, in its Amended Final Order, found that Russell violated Regulation
101-13.
Regulation 101-13, which sets forth the Code of Ethics for Physical Therapists, provides in part that “Physical Therapists accept
responsibility for the exercise of sound judgment.” 26 S.C. Code Ann.
Regs. 101-13 (Principle 3) (Supp. 2007). S.C. Code
Ann. § 40-45-120 (2001) sets forth sanctions that may be imposed for a
violation of Regulation 101-13. It provides:
In addition to the sanctions the
board may impose against a person pursuant to Section 40-45-110, the
board may take disciplinary action against a person as provided in Section
40-1-120 and also may impose a civil penalty of not more than two
thousand dollars for each violation of this chapter or of a regulation
promulgated under this chapter, the total penalty not to exceed ten thousand dollars.
S.C. Code
Ann. § 40-45-120 (2001) (emphasis added). Section 40-1-120 therefore specifically
authorizes the issuance of a public reprimand and/or a fine of at least $1,000
as a “disciplinary action” by the Board. See also S.C. Code Ann.
§ 40-1-120(A)(1) (2001) (also authorizing public reprimands as a disciplinary
action).
In
this case, Russell admitted at the hearing before the Board that he exercised “very
poor judgment” in choosing to accept money from Patient. Moreover, in the Memorandum, Russell stipulated that
his actions “present[ed] grounds that constitute misconduct, as alleged.”
Therefore, the Board was clearly authorized under
§§ 40-45-120 and 40-1-120 to publicly
reprimand Russell and to fine Russell $1,000.
Board’s finding that Russell accepted approximately $14,000.00
from Patient
during the course of their physical-therapist/patient relationship
Russell
further argues that the Board improperly found that Russell accepted approximately
$14,000 from Patient while serving as Patient’s
physical therapist. Specifically, Russell contends that he received only $5,577.20
from Patient during that time period. Respondent, however, argues that the Board’s finding was
not erroneous since, in the body of the Memorandum, Russell stipulated to receiving
$14,000 from Patient during the course of
their physical-therapist/patient relationship.
“A
stipulation is an agreement, admission or concession made in judicial
proceedings by the parties thereto or their attorneys.” Kirkland v.
Allcraft Steel Co., Inc., 329 S.C. 389, 392, 496 S.E.2d 624, 626 (1998). “A
stipulation, although it is not itself evidence, is the equivalent of, and may
be relied on as, proof.” 83 C.J.S. Stipulations § 5 (2000). “Stipulations, of course, are binding upon those who make
them.” Kirkland, 329 S.C. at 392, 496 S.E.2d at 626. Thus, “[w]hen a
party by a stipulation makes a concession or adopts a theory on which his or
her cause of action is determined, he or she must abide by it on appeal.” 83
C.J.S. Stipulations § 5 (2000). Moreover, when
a party enters into an agreed stipulation of fact as a basis for a tribunal’s
decision, the tribunal will not go beyond the stipulation to determine the
facts upon which the case is to be decided. Griffith v. Griffith,
332 S.C. 630, 644, 506 S.E.2d 526, 534 (Ct. App. 1998). Nevertheless, “where a
conflict exists between a stipulation and an exhibit attached to the
stipulation, then it must be resolved in accordance with the exhibit.” Estate
of Revis by Revis v. Revis, 326 S.C. 470, 480, 484 S.E.2d 112, 118 (Ct.
App. 1997).
Here, in the body of the Memorandum, Russell stipulated that, from
approximately January 7, 1998 to April 30, 2001 (the period in which Russell
served as Patient’s physical therapist), he accepted roughly $14,000 from Patient.
Ordinarily, such a stipulation would be binding on Russell. However, in this
case, Russell’s stipulation was inconsistent with Exhibit 3 of the Memorandum.
Exhibit 3 – which, according to the Memorandum, sets forth documentation
“evidencing the receipt of loans and other payments from [Patient]” – indicates
that Russell received only $5,577.20 from Patient from January 7, 1998 to April
30, 2001. Pursuant to Revis, where a conflict exists between a
stipulation and an exhibit attached to the stipulation, it must be resolved in
favor of the exhibit. See Revis, 326 S.C. at 480, 484 S.E.2d at 118.
Therefore, the Court concludes that the Board erred by finding that
Russell accepted roughly $14,000 from Patient during the course of their physical-therapist/patient relationship.
Respondent, however, argues that, regardless of
the amount of the payments received by Russell from Patient, the Board’s
sanctions were nevertheless authorized under §§ 40-45-120
and 40-1-120 and therefore should be affirmed. The Court disagrees. The Board
– not this Court – is the entity that is statutorily authorized to impose
sanctions for violations of Regulation 101-13. See S.C. Code Ann. § 40-45-120 (2001). In this case, it is unclear whether
the Board would have imposed the sanction that it did had it found that Russell
received $5,577.20 – rather than $14,000 – from Patient while serving as Patient’s physical therapist. Therefore,
the Court concludes that this matter should be remanded to the Board for it to make
more explicit findings of fact regarding the misconduct of Petitioner
specifically taking into account the fact that
Russell received $5,577.20 from Patient during
the course of their physical-therapist/patient relationship – not the $14,000
found by the Board. Cf. Huber v. S.C. State Bd. of Physical Therapy
Exam’rs, 316 S.C. 24, 446 S.E.2d 433 (1994) (remanding case to Board to
reconsider its sanction after determining that one of Board’s findings was
improper). The Board should further determine the proper sanction to be imposed
on Russell in light of its new findings of fact.
ORDER
Accordingly, based on the foregoing reasons,
the Amended Final Order of the Board is REVERSED,
and this matter is remanded to the Board for further proceedings consistent
with this Order.
AND IT IS SO ORDERED.
_________________________________
Ralph King
Anderson, III
Administrative
Law Judge
September 22, 2008
Columbia, South Carolina
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