ORDERS:
ORDER
STATEMENT
OF THE CASE
Appellant,
Scott J. Waguespack, appeals the Final Order of the South Carolina Board of
Medical Examiners (Board) denying his application for reinstatement of his
medical license. Appellant alleges that the Board’s decision was issued in
error. The Administrative Law Court (ALC) has jurisdiction to hear this matter
pursuant to S.C. Code Ann. § 1-23-600(D) (Supp. 2008), S.C. Code Ann. § 40-47-160
(Supp. 2008) and S.C. Code Ann. § 40-1-160 (2001). Upon consideration of the
briefs, the Board’s decision is affirmed.
BACKGROUND
Appellant’s involvement
with the Board’s disciplinary process began in the 1990’s, while he was still a
resident. According to a Final Order entered by the Board on February 10,
1994, Appellant admitted to unethical and inappropriate sexual contact with two
of his patients. Those admitted actions caused Appellant to be placed on
probation and subjected him to several probationary requirements, including having
a nurse chaperone present whenever he was in the presence of any female
patients.
In March of 1999, the
terms and conditions of the February 10, 1994 decision were terminated, and the
parties entered into a Private Agreement. Under the Private Agreement, the
requirement that Appellant be accompanied by a chaperone in the presence of
female patients continued in effect. In addition, Appellant was required to
abstain completely from mood-altering substances, including alcohol, and to be
subject to random alcohol and drug tests. He was also required to participate
in an aftercare program.
In late 2003, while
subject to the drug-testing requirements, Appellant was asked to submit a random
blood test. He refused. Appellant subsequently met with one of the Board’s
investigators to talk about the incident. During that meeting, he and the
investigator discussed various options available to Appellant. Relinquishment
of Appellant’s license was one of the options discussed, as was evaluation
(with treatment if necessary) and continued monitoring. A few days after the
meeting, Appellant and the Board’s investigator arranged to meet at the Board’s
offices. At that meeting, Appellant stated that he was tired of dealing with
the requirements and restrictions imposed by the Board and that he wanted to leave
the practice of medicine. The Board presented Appellant with an “Agreement to
Relinquish License to Practice Medicine” (Relinquishment Agreement), which
Appellant signed. Pursuant to the agreement, Appellant agreed to relinquish
“forevermore” his right to practice medicine in South Carolina, effective
immediately upon acceptance by the Board. The Board accepted the agreement on
February 3, 2004.
On
July 27, 2007, Appellant filed a Petition for Reinstatement with the Board. In
it, he contended that the Relinquishment Agreement was illusory and unconscionable
and that it violated statutory provisions and public policy. A hearing
regarding Appellant’s petition was held on November 5, 2007 before the Board. Though
Appellant was only asking the Board to consider the propriety of his
reinstatement, the Board denied Appellant’s reinstatement petition in an order
dated November 16, 2007. Appellant now appeals.
ISSUES
ON APPEAL
1. Did the Relinquishment
Agreement exceed the Board’s authority?
2. Is the Relinquishment Agreement
invalid due to lack of consideration?
3. Is the Relinquishment Agreement
unconscionable?
4. Does
the Relinquishment Agreement violate public policy?
STANDARD
OF REVIEW
As set forth above, this case is before the Court as an
appeal of an agency action. As such, the Administrative Law Judge sits in an appellate
capacity rather than as an independent finder of fact. In South Carolina, the
provisions of the Administrative Procedures Act (APA) ― specifically
Section 1-23-380(A)(6) ― govern the circumstances in which an appellate
body may reverse or modify an agency decision. That section states:
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) (Supp. 2005).
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, 321 S.E.2d 63 (Ct. App.
1984). The well-settled case law in this state has also interpreted the
“substantial evidence” rule to mean that a decision will not be set aside
simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo,
276 S.C.130, 276 S.E.2d 304 (1981). 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. Waters v. S.C. Land Resources Conservation Comm’n,
321 S.C. 219, 467 S.E.2d 913 (1996); Grant v. S.C. Coastal Council, 319
S.C. 348, 461 S.E.2d 388 (1995).
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 Servs. Fin. Comm’n, 318 S.C. 198, 200, 456 S.E.2d
892, 893 (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. Grant v. S.C. Coastal Council, 319 S.C.
348, 353, 461 S.E.2d 388, 391 (1995) (citing Gibson v. Florence Country Club,
282 S.C. 384, 386, 318 S.E.2d 365, 367 (1984)). Finally, the party challenging
an agency action has the burden of proving convincingly that the agency’s
decision is unsupported by substantial evidence. Waters, 321 S.C. at
226, 467 S.E.2d at 917.
DISCUSSION
Board’s
Authority
Appellant contends that
the portion of the Relinquishment Agreement barring reinstatement of Appellant’s
license exceeded the Board’s statutory authority. Appellant notes that S.C.
Code Ann. § 40-1-150 (2001) specifically contemplates that licensees who
voluntarily surrendered their licenses will be able to seek reinstatement.
Section 40-1-150 states
in pertinent part:
A licensee who is under investigation for a violation
provided for in Section 40-1-110 or the licensing act of the applicable board
for which disciplinary action may be taken may voluntarily surrender
authorization to practice to the board. The voluntary surrender invalidates
the authorization to practice at the time of its relinquishment, and no person
whose authorization to practice is surrendered voluntarily may practice the
profession or occupation unless the board, by a majority vote, reinstates
the license.
S.C. Code Ann. § 40-1-150 (2001)
(emphasis added).
A similar issue was
addressed by the Tennessee Court of Appeals in Bacardi v. Tenn. Bd. of
Registration in Podiatry, 124 S.W.3d 553 (Tenn. Ct. App. 2003). In that
case, a podiatrist sought judicial review of a decision by the Tennessee podiatry board refusing to set aside a settlement agreement in which the podiatrist
relinquished his right to reapply for his state license. The podiatrist
claimed that the board was without authority to make the settlement agreement
since no statutory or regulatory provision existed which prohibited reapplication.
On appeal of the matter to the Tennessee Court of Appeals, the court disagreed
with the podiatrist. It explained that the Tennessee Administrative Procedures
Act expressly encouraged informal settlements of controversies and that no
authority existed which prohibited the board from settling a dispute on the
terms set out in the agreement. Id. at 561-62. The court further noted
that “[a]lthough there is no express statutory or regulatory provision
prohibiting a reapplication for a license, Dr. Bacardi, by his unequivocal
Agreement, waived this right.” Id. at 561.
Here, South Carolina’s
APA, like Tennessee’s, allows for the informal disposition of administrative
proceedings. S.C. Code Ann. § 1-23-320(f) (2005) provides that “[u]nless
precluded by law, informal disposition may be made of any contested case by
stipulation, agreed settlement, consent order or
default.” (emphasis added). Moreover, Appellant has not cited any statute or
regulation that specifically prohibited the Board from entering into a
settlement agreement containing the terms set forth in the Relinquishment
Agreement, and the Court is not aware of any such statute or regulation. The
Court notes in this regard that, had the matter not been settled and had the
Board determined that grounds for discipline existed, the Board would have had
the authority to “permanently revoke” Appellant’s license. See S.C.
Code Ann. § 40-1-120(A)(4) (2001). Finally, while Section 40-1-150 does not prohibit licensees who voluntarily surrender
their licenses from seeking reinstatement, Appellant expressly waived his right
to do so pursuant to the Relinquishment Agreement. Accordingly, like the
Tennessee Court of Appeals in Bacardi, the Court concludes that the
Relinquishment Agreement did not exceed the Board’s statutory authority.
Appellant, however, contends
that the Relinquishment Agreement should not be considered a settlement
agreement since a disciplinary proceeding had not been commenced against
Appellant prior to the execution of the Relinquishment Agreement. The Court
disagrees.
In its order denying
Appellant reinstatement, the Board expressly found that the Relinquishment
Agreement “was entered in the context of a pending disciplinary proceeding.”
Upon review of the record, the Court concludes that the Board’s finding was
supported by substantial evidence. First, the Relinquishment Agreement itself
is evidence of the fact that a dispute existed. See Peoples Nat.
Bank of Rock Hill, S.C. v. Rogers, 218 S.C. 11, 18, 61 S.E.2d 391, 395
(1950) (holding that a compromise agreement of a will contest itself
constituted evidence that controversy existed). Second, the record indicates
that Appellant expected the Board to eventually take some type of disciplinary
action against him at the Board hearing, Appellant testified that he
anticipated that, as a result of his refusal to submit to the blood test, the
Board would either force him into treatment or do something “drastic” to his
license. Third and most importantly, in an affidavit introduced at the Board
hearing without objection, Wendy Cartledge, an attorney for the Board, stated that:
In late 2003, it came to the attention of the Board of
Medical Examiners that Dr. Scott J. Waguespack was refusing to comply with the
requirements of an agreement between him and the Medical Board requiring, among
other things, that he regularly submit to drug testing. As a result of this
information, LLR opened a new disciplinary file entitled “In the Matter of
Scott J. Waguespack, M.D.,” and bearing a case number, M-297-03. At the time, a number such as
this indicated an active disciplinary investigation or proceeding.
Upon receiving the above information, Dr. Waguespack met with the investigator
P.E. Morris of LLR and myself. Dr. Waguespack advised us that he would prefer
to surrender his license rather than subject himself to additional testing or
additional disciplinary proceedings. As a result, I presented Dr. Waguespack
with the Agreement to Relinquish License to Practice Medicine, which he signed.
(emphasis added). Thus, according
to Ms. Cartledge’s affidavit, a disciplinary file was opened against Appellant
prior to the execution of the Relinquishment Agreement. Although Appellant stated
in his affidavit that he “never discussed with the Board any pending disciplinary
action or proposed disciplinary action to be taken by the Board against me,”
that statement, even if true, does not foreclose the possibility that the Board
had begun a preliminary investigation. Moreover, conflicting evidence in the
record does not prevent an agency’s findings from being supported by
substantial evidence. Sharpe v. Case Produce, Inc., 336 S.C. 154, 160, 519
S.E.2d 102, 105 (1999). The final determination of witness credibility and the
weight to be accorded evidence is reserved to the Board and it is not the task
of this Court to weigh the evidence as found by the Board. Id.
Lack
of Consideration
Next, Appellant argues
that the portion of the Relinquishment Agreement making his relinquishment
“irrevocable” was not supported by consideration and therefore should be
invalidated. Specifically, Appellant contends that separate consideration was
needed to make the relinquishment irrevocable since Section 40-1-150 did not
prohibit licensees who voluntarily surrendered their licenses from seeking
reinstatement.
The Board, on the other hand, contends that separate consideration was not
needed to make the relinquishment irrevocable. Alternatively, the Board argues
that, if consideration was needed, it existed since the Board forewent bringing
a disciplinary action against Appellant.
Under the statute in
effect at the time of the Agreement, the Board was permitted to take
disciplinary action against Appellant despite Appellant’s voluntary
relinquishment of his license. S.C. Code Ann. § 40-1-150 (2001) expressly
stated that:
The surrender of an authorization to practice may not be
considered an admission of guilt in a proceeding under this article and does
not preclude the board from taking disciplinary action against the licensee as
provided for in this article or the board’s licensing act including, but
not limited to, imposing conditions that must be met before the board
reinstates the license.
(emphasis added). Moreover, as the
Board points out, at least one court has specifically held that the avoidance
of the professional stigma of a revocation order can constitute consideration
for a promise to forego reapplying for reinstatement of one’s professional
license. See State ex rel. Mahur v. Ohio State Dental Bd., No. 04AP-764, 2005 WL 736232 (Ohio Ct. App. March 31, 2005) (unpublished
decision).
In Mahur, a dentist,
while in the midst of an appeal concerning the Ohio Dental Board’s decision to
revoke his license, entered into a consent agreement with the board in which he
agreed to relinquish his license and forego reapplying for reinstatement. The
consent agreement contained the following provision:
Within five (5) days of the approval of this CONSENT
AGREEMENT by the BOARD, the BOARD shall file a Notice of Dismissal of the
Notice of Appeal in the Tenth District Court of Appeals Case No. 99AP-422,
thereby terminating all further formal proceedings based upon the violations of
Section 4715.30, Ohio Revised Code set forth in the Notice of Opportunity for
Hearing issued by the BOARD on January 9, 1997, attached hereto as Appendix A
and incorporated herein by this reference.
Id. at *2. The dentist
subsequently filed an action seeking a writ of mandamus directing the board to
issue him an application so that he could attempt to regain his license. The
dentist claimed that the consent agreement was unenforceable due to lack of
consideration. On appeal of the matter to the Ohio Court of Appeals, the court
held that the agreement was supported by consideration. It explained that
“[o]n Mathur’s part, there was consideration in the avoidance of the
professional stigma a revocation order would have involved had he lost his case
. . .” Id. at *5.
While the present case
is quite similar to Mahur, in this case, unlike in Mahur, there
is no evidence that the Board promised to forego taking disciplinary action
against Appellant. The Relinquishment Agreement contains no such promise. Moreover,
the Board has not contended that it had a separate agreement with Appellant to
refrain from ever pursuing disciplinary action against Appellant. Thus, there
appears to be nothing that legally prevents the Board from taking such action.
The foregoing
notwithstanding, however, the Court concludes that invalidation of the
Relinquishment Agreement on the basis of lack of consideration is not warranted
here. First, the Court notes that “a contract, although not enforceable at its
inception because of lack of consideration, may nevertheless become valid and
binding to the extent that it has been performed.” 17 C.J.S. Contracts § 84 (1999); see also Howard v. Mercury Record Corp., 178 F.2d
449, 452 (5th Cir. 1950). In other words, “[i]f one makes an
executory contract which lacks consideration, he or she may avoid it when
called on for performance, but if one executes the contract by performance he
or she cannot undo his or her voluntary act.” 17 C.J.S. Contracts § 84
(1999); Sloan v. Sloan, 66 A.2d 799, 801 (D.C. Ct. App. 1949); see
also Rubenstein v. Sela, 672 P.2d 492, 493 (Ariz. Ct. App. 1983) (“While
lack of consideration is a valid defense in an action to enforce a contract,
the courts will not undo a contract that has already been performed.”); Dale
System, Inc. v. American Fixtures, Inc., 243 N.Y.S.2d 753, 756 (N.Y. Civ. Ct.
1963) (“Presence or absence of consideration . . . is material only as going to
the enforceability of the purported agreement. Once the agreement has been
executed, lack of consideration is beside the point and cannot be availed of to
upset what has already transpired.”); King v. Bank of Pangburn, 233 S.W.
920, 921 (Ark. 1921) (“The agreement to release King having been fully
performed, it becomes immaterial to determine whether it was enforceable prior
to its performance.”); Farrington v. Tennessee, 95 U.S. 679, 683 (1877) (holding that a grant “actually made” requires no consideration to support it).
Here, pursuant to the
Relinquishment Agreement, Appellant voluntarily agreed to “relinquish forevermore
his right to practice medicine in South Carolina, effective immediately upon
acceptance by the Board.”
The Board accepted the Relinquishment Agreement on February 3, 2004. Thus,
because Appellant’s permanent relinquishment of his license has already become
effective, it cannot be undone based on lack of consideration.
Second, while it does
not appear that the Board expressly promised to forego pursuing disciplinary
action against Appellant, the Board did in fact close Appellant’s disciplinary
file. Moreover, it appears that the Board relied on Appellant’s permanent
relinquishment of his license in deciding to take that action. Under the
doctrine of promissory estoppel, reliance on a promise can, under certain
circumstances, act as a substitute for consideration. See, e.g.,
17A Am. Jur. 2d Contracts § 109 (2004) (“Under the doctrine of
promissory estoppel, a promise is binding if the promise has suffered some
detriment in reliance upon it, even though such detriment was not requested as
consideration. This doctrine is a substitute for consideration, or an
exception to its ordinary requirements.”). In South Carolina, the elements of promissory estoppel are: (1) the presence
of a promise unambiguous in its terms; (2) reasonable reliance upon the promise
by the party to whom the promise is made; (3) the reliance is expected and
foreseeable by the party who makes the promise; and (4) the party to whom the
promise is made must sustain injury in reliance on the promise. Rushing v. McKinney, 370 S.C. 280, 295, 633 S.E.2d 917, 925 (Ct. App. 2006).
Here, pursuant to the
Relinquishment Agreement, Appellant unambiguously agreed to “relinquish
forevermore” his right to practice medicine in South Carolina. Moreover, the
record indicates that the Board closed Appellant’s disciplinary file in
reliance on the Relinquishment Agreement. For instance, in her affidavit, Ms.
Cartledge stated that the practice of the Board was to discontinue disciplinary
proceedings once a licensee permanently relinquished his license. She further
stated that “[f]ollowing Dr. Waguespack’s signing the Agreement, and its
approval by the Medical Board, File No. M-29703 was closed without further
action by the Board.” Considering the fact that the Relinquishment Agreement
was unambiguous and in writing, the Board’s reliance on it was reasonable.
Furthermore, the record
demonstrates that Appellant anticipated that, by permanently relinquishing his
license, he would avoid further disciplinary action by the Board. For example,
at the hearing before the Board, when asked whether he thought that his refusal
to submit to the blood test would result in additional action by the Board,
Appellant responded by stating that he was aware that “it could’ve led up to it
. . . if I would’ve let it go on that long, that far.” This testimony indicates
that Appellant expected his act of entering into the Relinquishment Agreement
to end the Board’s inquiry into the matter.
Finally, the Board has suffered
an injury as a result of ending its investigation in reliance on the
Relinquishment Agreement. More than five years have passed since Appellant
relinquished his license. At this point in time, were the Board to attempt to
investigate the circumstances leading up to that relinquishment, it would be at
a clear disadvantage. As our Court of Appeals has noted with respect to
statutes of limitation:
[W]ith the passage of time, evidence becomes more difficult
to obtain and is less reliable. Physical evidence is lost or destroyed,
witnesses become impossible to locate, and memories fade.
Moriarty v. Garden Sanctuary Church of God, 334 S.C. 150, 163, 511 S.E.2d 699, 706 (Ct. App. 1999). Thus,
because the elements of promissory estoppel are present here, Appellant’s
promise to permanently relinquish his license is binding despite any lack of
consideration.
For these reasons, the
Court concludes that the Relinquishment Agreement should not be invalidated on
the grounds of lack of consideration.
Unconscionability
Next, Appellant
contends that the Relinquishment Agreement is unconscionable.
“Unconscionability is
the absence of meaningful choice on the part of one party due to one-sided
contract provisions together with terms that are so oppressive that no
reasonable person would make them and no fair and honest person would accept
them.” Hardee v. Hardee, 355 S.C. 382, 390, 85 S.E.2d 501, 505 (2003). As
discussed below, the Court concludes that Appellant has failed to demonstrate that
Appellant lacked meaningful choice and that no fair and reasonable person would
accept the terms of the Relinquishment Agreement.
Absence
of Meaningful Choice
“Absence of meaningful
choice on the part of one party generally speaks to the fundamental fairness of
the bargaining process in the contract at issue.” Simpson v. MSA of Myrtle
Beach, Inc., 373 S.C. 14, 25, 644 S.E.2d 663, 669 (2007). In determining whether
a contract was affected by an absence of meaningful choice, courts take into
account “the nature of the injuries suffered by the plaintiff; whether the
plaintiff is a substantial business concern; the relative disparity in the
parties’ bargaining power; the parties’ relative sophistication; whether there
is an element of surprise in the inclusion of the challenged clause; and the
conspicuousness of the clause.” Id.
Here, Appellant has
failed to establish that the Relinquishment Agreement was affected by an
absence of meaningful choice. At the hearing before the Board, Appellant
testified that, during his meeting with the Board investigator, the
investigator informed him that one of his options was to undergo an evaluation
and, if necessary, submit to treatment. Appellant further testified that
“that’s what I should’ve done,” but noted that, at the time, he was not
agreeable to undergoing an evaluation. Thus, by his own admission, Appellant
was given additional options by the Board other than relinquishing his license. Cf. Hardee, 355 S.C. at 390, 85 S.E.2d at 505 (2003) (holding
that wife who signed prenuptial agreement “clearly” had a meaningful choice
because she “she could have refused to sign the agreement and opted against
marrying Husband if he insisted on a prenuptial agreement.”). Additionally,
while Appellant claims that he was not given the opportunity to negotiate the
terms of the Relinquishment Agreement, that fact alone does not make a contract
unconscionable. See Munoz v. Green Tree Financial Corp., 343
S.C. 531, 541, 542 S.E.2d 360, 365 (2001) (explaining that under state law, an
adhesion contract, which is a standard form contract offered on a take-it or
leave-it basis with terms that are not negotiable, is not per se unconscionable).
Moreover, while
Appellant is not a “substantial business concern,” he is certainly a
well-educated man. He has earned a medical degree. Furthermore, the one-page Relinquishment
Agreement, which Appellant testified that he read prior to signing, contains
conspicuous provisions that warn Appellant that he will not be able to seek
reinstatement. The operative clause of the agreement states that “Respondent
does hereby agree to relinquish forevermore his right to practice medicine in South Carolina, effective immediately upon acceptance by the Board.” Additionally, the
recitals warn Appellant that the Relinquishment Agreement is “irrevocable,” that
he “will not be eligible to reapply for a license to practice medicine in this
State in the future,” and that he waives his right to “further proceedings in
this matter.”
Finally, according to
Appellant’s own affidavit, at the time that he arrived at the Board’s offices,
he informed the Board that he “wanted to walk away from the practice of
medicine.” There is no evidence that Appellant told the Board that he wanted
his departure from medicine to be temporary. Additionally, in her affidavit,
Ms. Cartledge stated that she informed Appellant that the relinquishment would
be permanent if Appellant signed the Relinquishment Agreement. In light of the
foregoing, the Court cannot conclude that the Relinquishment Agreement
contained elements of unfair surprise.
The
Board’s Acceptance of the Relinquishment Agreement
The Court also
concludes that Appellant has failed to demonstrate that the terms of the
Relinquishment Agreement were so oppressive that “no fair and honest person
would accept them.” The Board was fully aware of Appellant’s apparent violation
of the Private Agreement, and it certainly had a legitimate interest in avoiding
potentially lengthy litigation. Moreover, the Board also knew that it had the
authority to permanently revoke Appellant’s license if it determined that
grounds for discipline existed. See S.C. Code Ann. § 40-1-120(A)(4)
(2001). Furthermore, the Board had a valid reason to agree to the
irrevocability of Appellant’s relinquishment, since doing so ensured that the
Board would not be forced to investigate Appellant’s blood-test refusal at a
later date in the event that Appellant sought reinstatement. As noted above, the
passage of time makes the investigation of a matter much more difficult. See, e.g., Moriarty, 334 S.C. at 163, 511 S.E.2d at 706. In this
case, had the Board agreed to allow Appellant to seek reinstatement, it would
have faced the risk that Appellant would have done so at a much later point in
time, when evidence relating to the events that lead to his relinquishment was
difficult to gather. Accordingly, the Court concludes that it was neither
unfair nor dishonest for the Board to have accepted the terms of the
Relinquishment Agreement.
For these reasons, the
Court concludes that the terms of the Relinquishment Agreement were not unconscionable.
Public
Policy
Finally, Appellant
contends that the Relinquishment Agreement violates public policy because it contracts
away Appellant’s constitutional right to earn a living and his constitutional
right to access to the courts. The Court disagrees.
Right
to Earn a Living
“A sound public policy
requires the enforcement of contracts deliberately made, which do not clearly
contravene some positive law or rule of public morals. . . . Courts should not
annul contracts on doubtful grounds of public policy. In such matters it is
better that the legislature should first speak.” Rice v. Multimedia, Inc.,
318 S.C. 95, 100, 456 S.E.2d 381, 384 (1995) (quoting Warren v. Pilgrim
Health & Life Ins. Co., 217 S.C. 453, 456, 60 S.E.2d 891, 893 (1950)).
Additionally, “the mere fact that a contract waives constitutional or statutory
rights or changes an established rule of law does not necessarily render it
void on the ground that it is against public policy.” 17A C.J.S. Contracts § 218 (1999).
Here, Appellant has
failed to cite a case that specifically holds that a contract in which a person
voluntarily agrees to permanently relinquish his professional license is
violative of public policy. While Appellant points out that covenants not to
compete have been successfully challenged in the past, the agreement at issue here
is not sufficiently similar to a covenant not to compete to warrant
invalidation. A covenant not to compete generally benefits no one other than
the promisee. In contrast, a voluntary relinquishment by a physician who
believes that he no longer possesses either the fitness or the inclination to
practice medicine benefits the public at large. Moreover, the notion that
there is a public policy in favor of providing reinstatement hearings to those
physicians who have previously forfeited their licenses due to a disciplinary
proceeding is undermined by the fact that the Board has the express statutory
authority to permanently revoke a physician’s license upon a
determination that grounds for discipline exist. See S.C. Code Ann. §
40-1-120(A)(4) (2001).
Furthermore, as noted
above, the General Assembly has recently amended S.C. Code Ann. § 40-47-120(E)
(Supp. 2008) such that it provides that voluntary relinquishments are to be
irrevocable. “An agreement will not be declared void as against public policy
when it is expressly authorized by a statute . . .” 17A C.J.S. Contracts § 218 (1999); see also S.C. Farm Bureau Mut. Ins. Co. v. Mumford,
299 S.C. 14, 20, 382 S.E.2d 11, 14 (Ct. App. 1989) (“Once the legislature has
made [a] choice, there is no room for the courts to impose a different judgment
based upon their own notions of public policy.”); 17A C.J.S. Contracts §
216 (1999) (“The legislative branch is much better suited than the courts to
set public policy, and where the legislature has enacted a constitutional
statute on the subject, public policy is what the statute enacts, regardless of
a judge’s individual judgment or private notions or convictions.”). While it
is certainly true that Section 40-47-120(E) was not in effect at the time that
Appellant signed the Relinquishment Agreement, it was enacted just two years
later. Although public policies may shift over time, they do not generally
change dramatically over such short periods.
For these reasons, the
Court concludes that the fact that the Relinquishment Agreement prevents
Appellant from ever earning a living as a physician in South Carolina does not
make it violative of public policy.
Access
to the Courts
The
Court also disagrees with Appellant’s argument that the Relinquishment
Agreement violates public policy because it waives his constitutional right to
access to the courts. South Carolina courts “favor settlements and agreements
amongst litigants.” Darden v. Witham, 258 S.C. 380, 388, 188 S.E.2d 776,
778 (1972). Generally, there is no question of public policy involved in the
enforcement of settlement agreements “since it is the right and privilege of
each person to contract with reference to his property and rights.” Rogers, 218 S.C. at 17, 61 S.E.2d at 394. Moreover, South Carolina courts routinely
enforce contractual provisions that waive access to courts. See, e.g., New Hope Missionary Baptist Church v. Paragon Builders, 379 S.C. 620,
667 S.E.2d 1 (Ct. App. 2008) (enforcing an arbitration provision); Spoone v.
State, 379 S.C. 138, 665 S.E.2d 605 (2008) (enforcing provision of plea
agreement in which defendant waived his right to appellate, post-conviction,
and habeas corpus review). For these reasons, the Court concludes that the
Relinquishment Agreement does not violate public policy merely because it
waives Appellant’s access to the courts.
ORDER
Accordingly,
based on the foregoing reasons, the decision of the Board is AFFIRMED.
AND
IT IS SO ORDERED.
________________________________
Ralph
King Anderson, III
Administrative
Law Judge
April 15, 2009
Columbia, South Carolina
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