ORDERS:
ORDER
PROCEDURAL
HISTORY
This
is an appeal by Appellant, Sam Wayne Vetro from a Final Order of the Board of
Medical Examiners dated May 24, 2007, and from an Order of the Board, dated
June 12, 2008, denying reconsideration of the May 24, 2007, Order.
A
previous appeal by Appellant was decided by this Court by Order dated December
7, 2006. In that Order, this Court held that all issues raised by Appellant and
reached by the Court were without merit, except for Appellant’s claim that the
Board’s Order contained an inconsistency in its reference to opiates. On that issue, this Court remanded this case to the Board “so that the Board
may properly address this issue. . . .” Order, 12/7/06, p. 13.
On
remand, the Board held another Final Order Hearing on April 30, 2007. Although
the December 7, 2006 Order remanding the case did not require the Board to
address anything other than the inconsistency found by this Court in the
reference in the Board’s Order to crack cocaine and opiates, the Board
permitted Appellant to present additional information at that hearing, both
orally and in writing. At the hearing, Appellant requested that the Board
either remand the case for a panel hearing, or modify the sanction so that
Appellant would be permitted to return to practice with limitations on his
license. Appellant also presented written information from his
addictionologist.
Counsel
for the State took no position with respect to modification of the sanction,
but noted that the Board need only correct its Order to reflect that the Board
actually intended to conclude that Appellant’s license should be revoked
because of his addiction to crack cocaine.
After
reviewing the arguments of the parties, the Board denied Appellant’s requests
that the Board remand the case for a panel hearing, or that it modify the
sanction. Instead, the Board amended its Order so that it referred to addiction
to cocaine, which the Board noted was its intention, rather than the opiate
addiction referenced in its prior Order. Specifically, the Board found that
Appellant violated S.C. Code Ann. §§ 40-47-200(F)(3), (F)(6) and (F)(8) (2001)
in the following particulars:
(i) He
is addicted to alcohol or drugs to such a degree as to render him unfit to
practice medicine, as evidenced by his addiction to cocaine;
(ii) He
has sustained a physical or mental disability which renders further practice
dangerous to the public as evidenced by his addiction to cocaine;
(iii) He
engaged in dishonorable, unethical, or unprofessional conduct that is likely to
deceive, defraud, or harm the public, as evidenced by his addiction to cocaine.
The
present appeal this Court followed. Oral arguments were heard on the merits of this appeal on October 1, 2008.
FACTUAL
BACKGROUND
Appellant,
Dr. Sam Vetro, has a history of chemical dependence or addiction problems
dating back to at least 1998. In 1999, the Medical Board issued an Order
suspending Dr. Vetro’s license indefinitely, but staying the suspension as long
as Appellant complied with certain terms and conditions, primarily related to
his remaining free of alcohol and drugs, and his participation in an approved
aftercare program.
On
September 14, 2005, a Formal Complaint was filed against Appellant by the State
Board of Medical Examiners, charging Appellant with several violations of the
Medical Practice Act, S.C. Code Ann. § 40-47-5 et seq. (2001 and Supp. 2005).
The complaint alleged that Dr. Vetro committed the following acts:
1. That Dr. Vetro joined the Recovering Professional’s Program
(RPP) due to his crack cocaine addiction on April 25, 2000 and was discharged
from the program on or about February 6, 2004.
2. That Dr. Vetro self-reported a relapse and rejoined the RPP
on or about September 29, 2004. That Dr. Vetro then entered the Lighthouse for
detoxification and began Intensive Outpatient Treatment at Shepherd’s Center in
Conway, South Carolina.
3. That Dr. Vetro relapsed again in January of 2005 and was
again admitted to the Lighthouse for detoxification.
4. That on or about January 24, 2005, Dr. Vetro reported to Talbott Recovery Center in Atlanta, Georgia due to his crack cocaine addiction. That Dr. Vetro
relapsed again in February, 2005, and was enrolled in the COPAC program May 23,
2005.
5. That Dr. Vetro was discharged from COPAC on June 22, 2005
with a diagnosis of cocaine dependence, occupational problems, and suicidal
ideation.
6. That on or about September 9, 2005, Dr. Vetro tested positive
for cocaine and admitted having smoked crack cocaine over the Labor Day
weekend. That when Dr. Vetro refused further long-term recovery enrollment, he
was discharged from the RPP for non-compliance.
The
Complaint further alleged that as a result of the misconduct alleged above, Dr.
Vetro has violated S.C. Code Ann. § 40-47-200(F) (2001) and S.C. Code Ann.
Regs. 81-60(A) (Supp. 2005) in the following particulars:
1. Dr. Vetro
violated Section 40-47-200(F)(3) and Regulation 81-60(A) in that he is addicted
to crack cocaine to such a degree as to render Dr. Vetro unfit to practice
medicine.
2. Dr. Vetro
violated Section 40-47-200(F)(6) and Regulation 81-60 in that he suffers from a
physical or mental disability which renders further practice by the Respondent
dangerous to the public.
3. Dr. Vetro
violated Section 40-47-200(F)(8) and Regulation 81-60 in that he has engaged in
dishonorable, unethical, or unprofessional conduct that is likely to deceive,
defraud, or harm the public.
Appellant
signed and entered into a Memorandum of Agreement and Stipulations (MOA) on
December 28, 2005. In the MOA, Dr. Vetro waived formal hearing procedures and
requested that the matter be disposed of pursuant to S.C. Code Ann. §
1-23-320(f), in lieu of, inter alia, a Panel Report of the Medical Disciplinary
Commission. Dr. Vetro also agreed to participate in a Final Order Hearing
pursuant to S.C. Code Ann. § 40-47-200 (2001 and Supp. 2005) and S.C. Code Ann.
Regs. § 81-17 (Supp. 2005) at such time as the Board shall require for the
purpose of determining an appropriate sanction. Further, Dr. Vetro stipulated
and admitted to committing all of the acts alleged in the September 14, 2005
complaint referenced above. Lastly, Dr. Vetro admitted that these acts present
grounds that constitute misconduct. The Orders of the Board revoking
Appellant’s license have been discussed above.
STANDARD
OF REVIEW
Jurisdiction
on appeal is vested in the Administrative Law Court (ALC or Court) pursuant to
the Administrative Procedures Act (APA), specifically S.C. Code Ann. §
1-23-600(D) (2005) and S.C. Code Ann. § 40-1-160 (2001 and Supp. 2005). On
appeal to the ALC, the standard of review is limited to the record presented.
The APA governs the reasons an appellate body may reverse or modify an agency
decision. That section provides:
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:
(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 (A)(6)
(2005).
An
Administrative Law Judge may not substitute his judgment for that of the agency
unless the agency's determination is affected by error of law or is clearly
erroneous in view of the reliable, probative, and substantial evidence in the
whole record. S.C. Code Ann. § 1-23-380(A)(6) (2005); Lark v. Bi-Lo, Inc., 276 S.C. 130, 132-133, 276 S.E.2d 304, 305 (1981). A decision is supported by
"substantial evidence" when the record as a whole allows reasonable
minds to reach the same conclusion reached by the agency. Bilton v. Best
Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App.
1984). The well-settled case law in this state has also interpreted the rule to
mean that a decision will not be set aside simply because reasonable minds may
differ on the judgment. See Lark, supra. The fact that the
record, when considered as a whole, presents the possibility of drawing two
inconsistent conclusions from the evidence does not prevent the agency's
finding from being supported by substantial evidence. See Waters v.
South Carolina Land Resources Conservation Comm'n, 321 S.C. 219, 467 S.E.2d
913 (1996); see also Grant v. South Carolina Coastal Council,
319 S.C. 348, 461 S.E.2d 388 (1995), Palmetto Alliance, Inc. v. South
Carolina Public Service Comm'n, 282 S.C. 430, 319 S.E.2d 695 (1984).
In
applying the substantial evidence rule, the factual findings of the
administrative agency are presumed to be correct. Rodney v. Michelin Tire
Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996), (citing Kearse
v. State Health and Human Finance Comm'n, 318 S.C. 198, 456 S.E.2d 892
(1995)). Furthermore, the reviewing court is prohibited from substituting its
judgment for that of the agency as to the weight of the evidence on questions
of fact. See Grant, 319 S.C. at 353, 461 S.E.2d at 391 (citing Gibson
v. Florence Country Club, 282 S.C. 384, 318 S.E.2d 365 (1984)). Finally,
the party challenging an agency action has the burden of proving convincingly
that the agency's decision is unsupported by substantial evidence. See Waters,
321 S.C. at 226, 467 S.E.2d at 917.
STATEMENT
OF ISSUES ON APPEAL
1. Whether
the Board’s decision was made in violation of constitutional and statutory
provisions or other error of law.
2. Whether
the Board’s decision below was erroneous in view of the reliable, probative,
and substantial evidence on the whole record.
3. Whether
the Board’s decision below was arbitrary and capricious and a clear abuse of
discretion.
4. Whether
the sanction was within the Board’s statutory authority and is therefore not
subject to review.
5. Whether
the remaining issues argued by Appellant are governed by the doctrine of the
law of the case.
ANALYSIS
A. Issues 1
through 3.
Appellant
raises at most only one new issue in the present appeal. He argues it under
several different headings of his brief. Essentially, Appellant argues that
there is no evidence to support the Board’s conclusion relating to cocaine
addiction. However, Appellant directly admitted “his crack-cocaine addiction”
in Paragraph D of the Memorandum of Agreement and Stipulations signed by him on
December 28, 2005. Paragraph E of the same document also contains an admission
that he was diagnosed in June 2005 with cocaine dependence. Finally, he
admitted that he tested positive for cocaine in September 2005 and refused
treatment at that time. These admissions by Appellant provide ample evidence to
support the Board’s conclusion that he had a cocaine addiction.
Appellant
also claims that there is evidence, in the form of an April 17, 2007 letter
from his addictionologist, that his drugs screens had been negative since early
2006. Copies of the drug screen reports were attached. However, at the time of
the 2006 hearing there was some evidence to the same effect; specifically, the
Board was informed that he had resumed compliance with the RPP program. This
evidence of some degree of apparent drug-free behavior did not persuade the
Board that a sanction other than revocation was warranted. Given Appellant’s
prior history of addictions to various substances, his relapses, and his
admissions regarding his condition, the Board clearly was presented with ample
evidence to support a conclusion that Appellant’s drug problems were of such a
nature that the sanction of revocation was appropriate under any or all of the
three statutes cited by the Board in its conclusions. Likewise, the Board was
entitled, based on the prior history and Appellant’s admissions, to conclude
that the information in the addictionologist’s April 17, 2007, letter did not
warrant changing the sanction. (The addictionologist did not appear at the 2007
hearing.) Moreover, at the May 2008 hearing on the motion for reconsideration,
Appellant presented no evidence concerning his behavior at any date subsequent
to the April 17, 2007 letter. Thus, the record before the Board in 2008 did not
contain any information recent enough to warrant the Board changing its
original decision.
Appellant also
contends, as he did on the earlier appeal, that the Board’s Order was erroneous
in view of the reliable, probative and substantial evidence on the whole
record. As Appellant notes, a decision is supported by substantial evidence
when 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.” Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634,
641, 321 S.E.2d 63, 68 (Ct. App. 1984). In this case, the short answer is that
when a licensing body had before it uncontroverted, indeed admitted, evidence
of three cocaine addiction relapses in the space of twelve or thirteen months, as
well as another addiction dating back to 1999 or earlier, it was undoubtedly
reasonable for the Board to conclude that the licensee suffered from cocaine
addiction. It was likewise undoubtedly reasonable for the Board to conclude
that the licensee should have his license revoked in order to insure that
public safety is protected.
B. Sanction.
Appellant
argues, citing several other disciplinary cases, that sanction of revocation in
this case was arbitrary and capricious. This claim is one that has been raised and rejected many times in South Carolina. The then-applicable statute, S.C. Code Ann. § 40-47-200(A), provided that
the “The State Board of Medical Examiners, if it has reason to believe grounds
exist, may order the revocation or suspension of a license to practice medicine
or osteopathy, publicly or privately reprimand the holder of a license to
practice medicine or osteopathy, or take other reasonable action short of
revocation or suspension. . . .” Obviously, it cannot be disputed that the
sanction imposed in this case fell within these statutory limits.
In Deese v. South Carolina State Bd. of Dentistry, 286 S.C. 182, 185, 332
S.E.2d 539, 541 (Ct. App.1985), the Court of Appeals rejected a challenge
similar to the present one, holding that “[s]ince the sanctions were within
those established by law, Deese's contention that they were arbitrary and
capricious is without merit.” A similar conclusion was reached in South
Carolina Board of Examiners in Optometry v. Cohen, 256 S.C. 13, 180 S.E.2d
650 (1971).
The
same result and reasoning have also been applied in a number of cases in the Administrative Law Court. In McMeekin v. Board of Medical Examiners, 1997 WL 436038
(ALJ Div. 1997), for example, Judge Bates held that
An administrative sanction cannot be said to be unduly
harsh if it is within the Board's authority to impose. South Carolina Bd. of Examiners in Optometry v. Cohen, 256 S.C. 13, 180 S.E.2d 650 (1971).
An administrative tribunal's imposition of a particular penalty is justified,
and not an abuse of discretion, if it is within the sanctions available for the
misconduct found.
Accord, Bolt v. Board of Medical Examiners,
2002 WL 1730051 (ALJ Div. 2002); Kreutner v. Board of Medical Examiners,
2002 WL 1486992 (ALJ Div. 2002); Anonymous Physician v. Board of Medical
Examiners, 2000 WL 682165 (ALJ Div. 2000). Based on all of the above
authorities, it is clear that any claim of arbitrariness of the sanction in the
present case must fail.
C. Issues
previously decided.
The
remaining issues in the Brief of Appellant were all previously raised in the
earlier appeal, and were decided unfavorably to Appellant. Because these
issues were previously argued and decided by this Court, the “law of the case”
doctrine prevents Appellant from arguing them again before this Court. The long-established rule has been stated by the Supreme Court as follows:
It is well settled in this jurisdiction that a decision
of this court on a former appeal is the law of the case. The questions therein
decided are res judicata and this court will not on a subsequent appeal review
its former decision. See cases collected in West's South Carolina Digest,
Appeal and Error, 1097 and 1099.
Huggins v.
Winn-Dixie Greenville, Inc., 252 S.C. 353, 357, 166 S.E.2d 297, 299 (1969).
Given
that the above issues need not be reconsidered by this Court, there are no
other issues presented by Appellant, aside from the ones mentioned above, that
the Court needs to consider in this second appeal.
CONCLUSION
Based
on the foregoing, I conclude that the Board’s decision in this matter was within
its statutory authority and supported by reliable, probative and substantial
evidence, and therefore was neither arbitrary nor capricious, nor an abuse of
discretion. I further conclude that the issues previously decided adversely to
Appellant in the prior appeal of this case should not be revisited, in light of
the doctrine of the law of the case.
ORDER
IT IS THEREFORE
ORDERED that the Orders of the South Carolina Department of Labor,
Licensing and Regulation, State Board of Medical Examiners, dated May 24, 2007
and June 12, 2008 are AFFIRMED.
IT IS FURTHER
ORDERED that any issue raised by Appellant which was not fully addressed
above is deemed without merit and therefore DENIED.
AND IT IS SO
ORDERED.
______________________________
JOHN D. MCLEOD
Administrative Law Judge
November 12, 2008
Columbia, South Carolina
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