South Carolina
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDLLR vs. Anonymous Physician

AGENCY:
South Carolina Department of Labor, Licensing and Regulation

PARTIES:
Petitioner:
South Carolina Department of Labor, Licensing and Regulation, State Board of Medical Examiners

Respondent:
Anonymous Physician

DOCKET NUMBER:
04-ALJ-11-0344-IJ

APPEARANCES:
Kenneth P. Woodington, Esquire
For Petitioner

James M. Griffin, Esquire
For Respondent

ORDERS:

ORDER DENYING MOTION FOR ORDER OF SUSPENSION

PROCEDURAL BACKGROUND

The above-captioned matter comes before this tribunal upon the motion of Petitioner South Carolina Department of Labor, Licensing and Regulation, State Board of Medical Examiners (Board), for an order from this tribunal temporarily suspending Respondent’s medical license and thereby enjoining Respondent from practicing medicine pending the conclusion of a disciplinary proceeding against him before the Board. Pet’r Mot. for Order of Suspension at 4; Pet’r Mem. of Law in Supp. of Mot. for Order of Suspension at 2. The Board alleges that Respondent, while practicing in an emergency room setting, prescribed an excessive amount of morphine for five terminally ill patients, thereby hastening the deaths of four of those patients. Pet’r Mot. for Order of Suspension at 1-4. By an Order dated October 27, 2004, this Court scheduled a hearing for November 17, 2004, “to determine whether this tribunal should issue a preliminary injunction temporarily suspending Respondent’s medical license to protect the public health while allowing the Board a reasonable opportunity to pursue and complete disciplinary proceedings against Respondent.” Order and Notice of Mot. Hr’g at 1. Based upon the testimonial and documentary evidence presented at that hearing and upon the relevant legal authority, I find that Petitioner’s motion for a temporary suspension of Respondent’s license should be denied.

ANALYSIS

The Board has the broad power to order a physician to refrain from any conduct that violates the statutes and regulations governing the practice of medicine, and to issue an emergency suspension of a physician’s medical license when required to protect public health, safety, and welfare. See S.C. Code Ann. § 40-1-100 (2001) (“When the board has reason to believe that a person is violating or intends to violate a provision of this article or a regulation promulgated under this article, in addition to all other remedies, it may order the person to immediately cease and desist from engaging in the conduct.”); S.C. Code Ann. § 40-47-210 (2001) (“Whenever the board has reason to believe that any person is violating or intends to violate any provision of this article, it may, in addition to all other remedies, order such person to immediately cease and desist and refrain from such conduct.”); S.C. Code Ann. § 1-23-370(c) (Supp. 2003) (“If the agency finds that public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.”). However, in the instant matter, the Board has decided to proceed against Respondent under S.C. Code Ann. § 40-1-210 (2001), which authorizes the Department of Labor, Licensing and Regulation to “institute a civil action through the [South Carolina Administrative Law Court (ALC)], in the name of the State, for injunctive relief against a person violating this article [i.e., Article 1 of Chapter 1 of Title 40], a regulation promulgated under this article, or an order of the board.” Id. The Board has stated that it chose to seek a temporary injunction through the ALC under Section 40-1-210, rather than use its own enforcement powers, in order to “enhance the due process available to the Respondent.” Pet’r Mem. of Law in Supp. of Mot. for Order of Suspension at 2.

Traditionally, in civil matters, a party seeking a preliminary injunction must establish that (1) it would suffer irreparable harm if the injunction is not granted; (2) it will likely succeed on the merits of the underlying litigation; and (3) there is an inadequate remedy at the law for the potential harm. See, e.g., Scratch Golf Co. v. Dunes West Residential Golf Props., Inc., 361 S.C. 117, ___, 603 S.E.2d 905, 908 (2004); Mailsource, LLC v. M.A. Bailey & Assocs., 356 S.C. 363, 367-68, 588 S.E.2d 635, 638 (Ct. App. 2003). It has also been generally recognized that a preliminary injunction is a drastic remedy entrusted to the sound discretion of the trial court. Scratch Golf Co., 361 S.C. at ___, 603 S.E.2d at 907; James F. Flanagan, South Carolina Civil Procedure 507 (2d ed. 1996). Further, in ruling upon a motion for a preliminary injunction, it is well-settled that a court should not consider the merits of the underlying case, except so far as necessary to determine whether the moving party has made a prima facie showing of a likelihood of success on the merits. Mailsource, LLC, 356 S.C. at 368, 588 S.E.2d at 638. Accordingly, the issuance of a preliminary injunction does not prejudice the rights of either party pending a hearing on the merits of the case, and when other issues are raised at such a hearing, they are determined without reference to the preliminary injunction. Id.

In the matter at hand, the Board alleges that Respondent, while employed in a hospital emergency room, ordered inappropriate amounts of morphine for five patients, thereby accelerating the deaths of four of those patients. The Board further contends that Respondent failed to perform a complete medical history and physical examination of the patients in question before prescribing the morphine. Specifically, the Board’s concerns center on Respondent’s treatment of (1) Patient DWB, an unresponsive 86-year-old male who received 62 mg. of morphine over a period of two hours, and who died two hours and twenty minutes after arriving at the emergency room; (2) Patient JFM, a 57-year-old male hospice patient who received 30 mg. of morphine over a period of one hour and twenty minutes, and who died two hours and fifty-seven minutes after arriving at the emergency room; (3) Patient CPS, an unresponsive 81-year-old female who received 40 mg. of morphine over a period of forty-seven minutes, and who died one hour and thirty-five minutes after arriving at the emergency room; (4) Patient MFA, an unresponsive 79-year-old female who received 52 mg. of morphine over a period of three hours and twenty-five minutes, and who died four hours and thirty-five minutes after arriving at the emergency room; and (5) Patient MR, an unresponsive 83-year-old female for whom Respondent ordered the administration of morphine, but who died before receiving the morphine.

At the hearing on the preliminary injunction, the Board presented the expert testimony of Wesley Heyward Shuler, a physician board-certified in emergency medicine, who testified that Respondent deviated from the standard of care in treating these five patients by failing to conduct complete medical histories and physical examinations, by ordering inappropriate and excessive dosages of morphine, and, in several of the cases, by failing to fully consider potentially reversible life-threatening conditions. In response to this testimony, Respondent presented the expert medical testimony of Elvira Kisteneff, a physician board-certified in internal medicine who has significant experience in emergency-room medicine and geriatric care. Dr. Kisteneff opined that Respondent did not breach the applicable standard of care in his treatment of the patients in question. Specifically, Dr. Kisteneff testified that, upon arriving at the emergency room, each patient was near death and was suffering from respiratory distress, and that the administration of morphine, in dosages within the range of those ordered by Respondent, is the preferred treatment for the management of respiratory distress for patients who are near death.

Respondent also submitted an affidavit from the director of quality management at the hospital where he was practicing which stated that a peer review investigation was conducted in response to allegations identical to those brought by the Board against Respondent. Resp’t Ex. #1. As part of this peer review, the medical files for Patients DWB and MFA were internally reviewed and were sent for an independent external review conducted by the Greely Company, an independent peer review company. After both the internal and external reviews, the peer review committee at the hospital did not recommend any restrictions or limitations on Respondent’s medical staff privileges. Subsequent to this initial peer review, the hospital learned of two similar cases, those involving Patients JFM and CPS. However, because those cases involve the same issues presented with respect to Patients DWB and MFA, the records for those cases were not subjected to either internal or external peer review by the hospital and no actions were taken with respect to the records. Finally, the hospital examined the file for Patient MR, but did not select the file for review because the medical records do not indicate that the patient was ever provided morphine. In addition to the hospital’s affidavit, Respondent submitted a copy of the report from the external peer review of the Greely Company. Resp’t Ex. #2. The report notes that the use of morphine as a deterrent to respiratory distress in cases of impending respiratory failure is recognized as a legitimate therapeutic option in terminal care cases such as those presented by Patients DWB and MFA.

Respondent also testified on his own behalf at the hearing. He stated that he followed the standard treatment protocols that he learned during his residency for the care of each of the patients in question and that, in treating the patients, he relied upon recognized guidelines for the administration of morphine to near-death patients with respiratory distress. Further, Respondent strongly denied that he committed euthanasia, or “mercy killings,” in these cases, as he considers euthanasia to be morally and ethically wrong as well as illegal. Respondent explained that, in each of the five cases, the patient was near death and suffering from respiratory distress and the patient’s surrogate specifically requested that only comfort measures be taken and that no life support measures be attempted.

Based upon the expert opinion testimony and documentary evidence presented by the parties, and upon Respondent’s testimony, I find that the Board has failed to establish that this Court should issue a preliminary injunction restraining Respondent from the practice of medicine during the pendency of the Board’s disciplinary proceedings. In particular, the Board has not demonstrated that there is a risk of harm, irreparable or not, to the public if Respondent is allowed to continue to practice medicine, nor has it made a showing that it will likely succeed on the merits of the underlying disciplinary action against Respondent. Further, because the Board has failed to make a prima facie showing that Respondent has likely violated the statutes and regulations governing the practice of medicine, it would not be entitled to a preliminary injunction even under the less restrictive standard for the issuance of statutorily authorized preliminary injunctions recently applied by South Carolina courts in two zoning matters. See City of Columbia v. Pic-a-Flick Video, Inc., 340 S.C. 278, 282, 531 S.E.2d 518, 521 (2000) (citing to 42 Am. Jur. 2d Injunctions § 38 (1969) and holding that, in order for a city to obtain an injunction for a zoning violation, it need only show “(1) that it has an ordinance covering the situation; and (2) that there is a violation of that ordinance”); County of Richland v. Simpkins, 348 S.C. 664, 669, 560 S.E.2d 902, 905 (Ct. App. 2002) (quoting Pic-a-Flick and 42 Am. Jur. 2d Injunctions § 23 (2000) (the current version of 42 Am. Jur. 2d Injunctions § 38 (1969)) and holding that, in Pic-a-Flick, “our supreme court articulated a lesser standard [for a preliminary injunction] where the injunction sought is specifically authorized by statute and the party seeking the injunction is a governmental entity”); 42 Am. Jur. 2d Injunctions § 23 (2000) (setting forth a lesser threshold for the issuance of an injunction when the injunction is specifically authorized by statute).