ORDERS:
ORDER
STATEMENT
OF THE CASE
In
this appeal, D. Lanette Atkins, M.D. (“Atkins”) challenges the final Amended Order
of the South Carolina Department of Labor, Licensing and Regulation, State
Board of Medical Examiners (“Board”) following an administrative hearing held
pursuant to S.C. Code Ann. § 40-47-117 (Supp. 2007). Atkins contends that the
Board erroneously overturned the decision of the Medical Disciplinary
Commission’s panel, which
determined that the State had failed to prove that Atkins had violated any statutes,
rules, or regulations. The Administrative Law Court (“ALC”) has jurisdiction
to hear this matter pursuant to S.C. Code Ann. § 40-1-160 (2001) and §
40-47-160 (Supp. 2007). Upon consideration of the briefs and the oral
arguments, the Board’s final Amended Order is remanded to the Board for further
consideration.
BACKGROUND
Atkins
is a psychiatrist licensed by the Board. Atkins and the Complainant in this
matter had been close friends for several years prior to the filing of the
Complaint. On at least one occasion, Atkins prescribed medication to the
Complainant for back pain. In 2001, the Complainant tested positive for HIV
using a home test he purchased online. The Complainant shared the results of
his home test with Atkins, and Atkins recommended a physician and accompanied
the Complainant to the physician’s office, where the Complainant was treated by
a nurse practitioner. With the Complainant’s permission, Atkins disclosed the
Complainant’s HIV status to his partner. Atkins also discussed the
Complainant’s condition with other individuals.
A
hearing was held before a panel of the Medical Disciplinary Commission (“Panel”)
of the Board on March 28, 2007, based on a Complaint alleging, among other
things, that Atkins had violated the Complainant’s confidentiality by revealing
his HIV status to third parties. The Panel determined that the State had
failed to prove that Atkins had violated any statutes, rules, or regulations.
The Board reviewed the decision, which included holding a new hearing on August
7, 2007. The Board affirmed the Panel’s decision except with regard to the
patient confidentiality issue. The Board issued an Amended Order on November
13, 2007 sanctioning Atkins for breaching a patient’s confidentiality, finding
that Atkins had established a physician-patient relationship with the
Complainant and that the relationship continued to exist at the time that Atkins
learned of the Complainant’s HIV status. Specifically, the Board found that
“[w]ith no formal conclusion of the physician-patient relationship, it remained
in effect at the time [Atkins] disclosed [Complainant’s] medical status.” (R.
at 2.) Because a physician-patient relationship had been established, and
because the Board found that the relationship had not been terminated by a
formal conclusion, the Board found that Atkins breached the confidentiality of
the Complainant by sharing his HIV status with individuals whom the Complainant
had not authorized Atkins to inform. Atkins appeals.
STANDARD
OF REVIEW
The
Board is authorized by law to investigate complaints against physicians and
impose sanctions when appropriate. See S.C. Code Ann. § 40-47-115 to
-120 (Supp. 2007). The Board is an “agency” under the Administrative
Procedures Act (“APA”). See S.C. Code Ann. § 1-23-310(2) (as amended
2008). As such, the
APA’s standard of review governs appeals from decisions of the Board. See S.C. Code Ann. § 1-23-380; see also Byerly Hosp. v. S.C. State
Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383,
385 (1995). The standard used by appellate bodies to review agency decisions
is provided by S.C. Code Ann. § 1-23-380(5). See S.C. Code Ann. § 1-23-600(E)
(directing administrative law judges to conduct appellate review in the same manner
prescribed in § 1-23-380). This section provides:
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). Thus, pursuant to the APA, this court’s review is limited to
deciding whether the Board’s final Amended Order is unsupported by substantial
evidence or is affected by an error of law. Bass v. Kenco Group, 366
S.C. 450, 457, 622 S.E.2d 577, 581 (Ct. App. 2005).
ISSUE
ON APPEAL
Did the Board err in
requiring that the physician-patient relationship be terminated with a “formal
conclusion”?
DISCUSSION
In
regulating the practice of physicians, the South Carolina Board of Medical
Examiners may conduct investigations and sanction physicians for misconduct. See S.C. Code Ann. § 40-47-115 to -120 (Supp. 2007). Section 40-47-70 of the
South Carolina Code provides, “A practitioner shall conduct himself or herself
in accordance with the applicable codes of ethics adopted by the board in
regulation.” The Board has adopted a code of medical ethics in 26 S.C. Code
Ann. Regs. § 81-60 (Supp. 2007). This code of ethics provides in pertinent
part, “A physician shall respect the rights of
patients, of colleagues, and of other health professionals, and shall safeguard
patient confidence within the constraints of the law.” Further, S.C.
Code Ann. § 40-47-110 provides a list of actions that constitute physician
misconduct. Among these are “violat[ion of] the code of medical ethics adopted
by the board” and “violat[ion of] a provision of this chapter or a regulation
or order of the board.” S.C. Code Ann. § 40-47-110(13), (14) (Supp. 2007).
On
appeal, Atkins argues that the Board made an error of law in imposing the requirement
of a “formal conclusion” of a physician-patient relationship. She contends
that the Board’s decision effectively required that Atkins comply with advice
by the American Medical Association (“AMA”), a national, private medical
professional organization, regarding the termination of a physician-patient
relationship. Because the AMA recommendation is not binding as a regulation or
statute, she argues, noncompliance cannot constitute a legally sufficient
ground for sanctions where there is not otherwise a violation of the applicable
law.
Atkins
does not dispute that she established a physician-patient relationship with the
Complainant for the purpose of prescribing the back medication. However, the
parties diverge in their positions as to whether this relationship was
terminated by Atkins prior to her learning of the Complainant’s HIV status. In
its Amended Order the Board determined, contrary to the Panel, that the
physician-patient relationship had not been terminated because there was no “formal
conclusion.” Although the Board did not specify what it considered to
constitute a “formal conclusion,” counsel for the Board asserted in its
appellate brief and at oral argument that because Atkins had not terminated her
relationship with the Complainant in writing, based on the AMA recommendations
for terminating a physician-patient relationship, there was no “formal
conclusion” of the relationship.
As
the Board acknowledges, the AMA recommendation relied on by the Board on appeal
has not been adopted by or incorporated by reference into the applicable
statues and regulations. As stated
above, the applicable regulatory provision states, “A
physician shall respect the rights of patients, of colleagues, and of other
health professionals, and shall safeguard patient confidence within the
constraints of the law.” 26 S.C. Code Ann. Regs. § 81-60. Nothing in
the plain language of this regulation requires a “formal conclusion” for a physician-patient
relationship to be properly terminated. Moreover, case law discussing the
termination of the physician-patient relationship in other contexts has
recognized that the relationship may be terminated with notice that is
reasonable and sufficient. See Ricks v. Budge, 64 P.2d 208, 212 (Utah 1937) (“A physician has
the right to withdraw from a case, but if the case is such as to still require
further medical or surgical attention, he must, before withdrawing from the
case, give the patient sufficient notice so the patient can procure other
medical attention if he desires.”); see also Johnston v. Ward,
288 S.C. 603, 610, 344 S.E.2d 166, 170 (Ct. App. 1986), overruled in part on
other grounds by Spahn v. Town of Port Royal, 330 S.C. 168, 499 S.E.2d 205 (1998)) (“Once
employed, a physician must attend the case as long as it requires attention,
unless the relation of physician and patient is ended by mutual consent or is
revoked by the dismissal of the physician. A physician cannot abandon a case
without reasonable notice to the patient.”) (citations omitted). Thus, the
court finds that the Board erred to the extent that it imposed as a matter of
law a requirement that the relationship be “formally” concluded to constitute a
valid termination.
It is unclear, however, whether this
error affected the Board’s conclusion that Atkins violated 25 S.C. Code Ann.
Regs. § 81-60’s requirement of confidentiality. See § 1-23-380. The
court cannot discern whether the Board’s determination that Atkins violated her
ethical duty of confidentiality necessarily turned on its misapprehension that
the physician-patient relationship had to be “formally” concluded. Accordingly,
it concludes that it must remand this matter for reconsideration, based upon
the evidence already presented, of the issue of whether Atkins was the
Complainant’s physician when she learned of the confidential information or whether the physician-patient relationship had at that time, as a matter of
fact, been terminated with reasonable and sufficient notice. See Fuller
v. Blanchard, 358 S.C. 536, 546, 595 S.E.2d 831, 836 (Ct. App. 2004) (holding
that the existence of a physician-patient
relationship is a question of fact).
ORDER
For
the foregoing reasons, it is
ORDERED that this matter is REMANDED to the Board for further proceedings
consistent with this decision.
IT
IS SO ORDERED.
______________________________
Paige J. Gossett
Administrative
Law Judge
September 11, 2008
Columbia, South Carolina
The court emphasizes that nothing in its decision
should be construed to suggest that a doctor can free herself, simply by
terminating the physician-patient relationship, from her ethical obligation not
to disclose confidences learned while serving as a patient’s physician. See Salerian v. Md. State Bd. of Physicians, 932 A.2d 1225, 1237 (Md. Ct. Spec. App. 2007) (holding
that physician’s duty to maintain patient confidences remains intact even after
the relationship ends); see also S.C. State Bd. of Med.
Exam’rs v. Hedgepath, 325 S.C. 166, 169,
480 S.E.2d 724, 726 (1997) (holding that a physician has a duty of
confidentiality to a patient, except where disclosure is compelled by law or
consented to by the patient). That is simply not the issue
before the court. The question in the instant appeal turns on whether the
Complainant’s HIV status was a “patient confidence” within the meaning of §
81-60.
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