ORDERS:
ORDER
STATEMENT OF THE CASE
Pursuant to S.C. Code Ann. § 40-47-200(E) (2001) and S.C. Code Ann. § 1-23-600(D)
(Supp. 2004), Appellant Lori Price Lord, M.D., appeals the Final Order of the South Carolina
Department of Labor, Licensing and Regulation, State Board of Medical Examiners (Board),
dated June 9, 2004. In that order, the Board publicly reprimanded Appellant and ordered her to
pay the Board the sum of $3332.03, an amount representing the administrative costs of
adjudicating her case, as a sanction for three instances of diverting a narcotic pain medication for
her personal use and altering records to conceal the diversions in violation of S.C. Code Ann. §
40-47-200(F)(3),(7), (8), and (9) (2001), and 26 S.C. Code Ann. Regs. 81-60(B), (C), and (D)
(Supp. 2004). In addition, the Board incorporated into the order the terms of a November 17,
2002 Consent Order and Agreement between Appellant and the South Carolina Department of
Health and Environmental Control (DHEC), including the Consent Order’s provisions regarding
her compliance with the Recovering Professionals Program and its limitations upon her
authorization to prescribe controlled substances. On appeal to this tribunal, Appellant generally
contends that the Board should have imposed a private, rather than a public, reprimand upon her,
and that, in issuing the public reprimand, the Board acted without adequate, discernable
principles for differentiating between conduct warranting a private reprimand and conduct
warranting a public reprimand. However, upon consideration of the Record on Appeal, the
arguments of the parties made in their briefs and at oral argument, and the applicable law, I find
that the Board’s Final Order publicly reprimanding Appellant must be affirmed.
BACKGROUND
Appellant is currently a physician duly licensed to practice medicine in South Carolina.
During 2001, Appellant was a fourth-year anesthesiology resident at the Medical University of
South Carolina (MUSC) in Charleston, South Carolina. On three occasions in late July and early
August 2001, while working at MUSC, Appellant diverted small quantities of Fentanyl, a
narcotic analgesic, from the hospital’s anesthesia supplies and made personal use of the
Fentanyl. On each occasion, Appellant also falsified hospital records and made misleading
statements in order to conceal her diversion of the Fentanyl. And, when initially confronted
about the diversions, Appellant denied diverting the Fentanyl for her personal use. At the time
of the incidents, Appellant was eight months pregnant, was under significant stress as a medical
resident, and was an insulin-dependant diabetic whose diabetes was poorly controlled.
As a result of the diversion incidents, Appellant voluntarily enrolled in the Recovering
Professionals Program on October 1, 2001, and entered into a Consent Order and Agreement
with DHEC on November 17, 2002. The Recovering Professionals Program required Appellant
to submit to random drug tests, meet with a counselor, and attend self-help meetings; also, the
Consent Order and Agreement limited Appellant’s authority to prescribe controlled substances
and required her to complete the Recovering Professionals Program. To date, Appellant has
complied with the requirements of the Recovering Professionals Programs and the terms of her
Consent Order and Agreement with DHEC. However, Appellant has decided to leave the field
of anesthesiology and practice in the less stressful field of internal medicine.
In September 2003, the Board issued a formal complaint alleging that Appellant had
violated S.C. Code Ann. § 40-47-200(F)(3), (7), (8), and (9) (2001) and S.C. Code Ann. Regs.
81-60(B), (C), and (D) (Supp. 2004) as a result of the diversion of the Fentanyl. On March 17,
2004, Appellant entered into a Memorandum of Agreement and Stipulations with the Board, in
which she admitted to the charged violations. Subsequently, on May 3, 2004, and May 5, 2004,
the Board held hearings to determine the appropriate sanction to be imposed upon Appellant for
the violations. On June 9, 2004, the Board issued its Final Order in this matter in which it
publicly reprimanded Appellant and required her to pay the costs of the disciplinary proceeding,
as noted above.
ISSUES ON APPEAL
Appellant contends that the Board’s Final Order should be overturned on several
grounds, all related to her contention that neither Section 40-47-200 nor the Board’s regulations
provides the Board with “discernable principles” with which to determine what conduct warrants
the sanction of a public, rather than a private, reprimand. Given this lack of “discernable
principles,” Appellant argues that the Board’s decision to impose the more severe sanction of a
public reprimand against her as opposed to a private reprimand: (1) violates her due process
rights because she did not have adequate notice of what conduct would warrant a public
reprimand instead of a private reprimand; (2) does not afford her equal protection under the law
because other physicians guilty of similar conduct have only been issued private reprimands; (3)
is arbitrary and capricious and constitutes an abuse of discretion, because the Board had no
articulated basis for deciding between a public and a private reprimand; and (4) evidences an
improper delegation of legislative authority, because the Board, rather than the legislature, is
required to determine the standards for imposing public and private reprimands.
STANDARD OF REVIEW
This tribunal’s review of a final decision in a contested case decided by a professional or
occupational licensing board within the South Carolina Department of Labor, Licensing and
Regulation is governed by the provisions of S.C. Code Ann. § 1-23-380(A) (2005). S.C. Code
Ann. § 1-23-380(B) (2005); see also S.C. Code Ann. § 1-23-600(D) (Supp. 2004). Under the
standard of review laid out in Section 1-23-380, this tribunal “shall not substitute its judgment
for that of the [Board] as to the weight of the evidence on questions of fact.” S.C. Code Ann. §
1-23-380(A)(6) (2005). However, this tribunal
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 [Board];
(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 and capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
Id.; see also Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).
Substantial evidence, as referenced in Section 1-23-380(A)(6)(e), is relevant evidence
that, considering the record as a whole, a reasonable mind would accept to support the Board’s
decision. E.g., Jennings v. Chambers Development Co., 335 S.C. 249, 516 S.E.2d 453 (Ct. App.
1999). The possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported by substantial evidence. Id.
Where there is a conflict in the evidence, the administrative agency’s findings of fact are
conclusive. Id. This tribunal cannot substitute its judgment for that of the Board upon a
question as to which there is room for a difference of intelligent opinion. E.g., Chemical
Leamen Tank Lines v. S.C. Pub. Service Comm’n, 258 S.C. 518, 189 S.E.2d 296 (1972). While
a decision of an administrative agency will normally be upheld, the findings may “not be based
upon surmise, conjecture, or speculation, but must be founded on evidence of sufficient
substance to afford a reasonable basis for it.” Mullinax v. Winn-Dixie Stores, Inc., 318 S.C. 431,
443, 458 S.E.2d 76, 83 (Ct. App. 1995).
The burden is on Appellant to show convincingly that the Board’s Final Order is without
evidentiary support or is arbitrary or capricious as a matter of law. See Hamm v. Am. Tel. &
Tel. Co., 315 S.C. 119, 432 S.E.2d 454 (1993); Hamm v. Pub. Serv. Comm’n of S.C., 310 S.C.
13, 425 S.E.2d 28 (1992). The standard of proof in a medical disciplinary proceeding is a
preponderance of the evidence. See Anonymous v. State Bd. of Med. Exam’rs, 496 S.E.2d 17,
329 S.C. 271 (1998).
DISCUSSION
The gist of Appellant’s appeal, aside from her constitutional challenge to Section 40-47-200 under the non-delegation doctrine, which will be addressed in turn, is that the Board should
have issued a private, rather than a public, reprimand to her as a sanction for her violations of the
Medical Practice Act and the Board’s accompanying regulations. Specifically, Appellant
contends the applicable statutes and regulations do not provide the Board with sufficient criteria
for determining whether to issue a public or private reprimand to her for her misconduct, and
that, therefore, the Board’s decision to impose the more severe sanction of a public reprimand
upon her must be considered an arbitrary act that violates her constitutional rights to due process
and equal protection. However, these arguments are not supported by the facts in the record in
this matter or by the applicable law. Accordingly, I find that the Board’s Final Order in this case
imposing a public reprimand upon Appellant must be affirmed.
Appellant’s primary contention is that S.C. Code Ann. § 40-47-200 (2001) lacks
“discernable principles” such that the Board’s decision to impose a public, rather than private,
reprimand upon Appellant violates her due process rights and constitutes an abuse of discretion.
To the extent this argument is a challenge to the constitutionality of the provisions of Section 40-47-200, it cannot be addressed by this tribunal, see, e.g., Video Gaming Consultants, Inc. v. S.C.
Dep’t of Revenue, 342 S.C. 34, 38, 535 S.E.2d 642, 644 (2000) (holding that an administrative
law judge has no authority to pass upon the constitutionality of a statute or regulation); however,
to the extent Appellant’s argument addresses the Board’s application of Section 40-47-200, it
must fail. Section 40-47-200 authorizes the Board to impose a number of sanctions upon
physicians who have been found guilty of professional misconduct, including the sanction of a
public reprimand:
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, such as requiring the licensee to undertake additional professional
training subject to the direction and supervision of the board or imposing restraint
upon the medical or osteopathic practice of the licensee as circumstances warrant
until the licensee demonstrates to the board adequate professional competence.
S.C. Code Ann. § 40-47-200(A) (2001) (emphasis added). This section also authorizes the
Board, in addition to or in lieu of action taken against a license, to require a licensee who has
been found guilty of misconduct to pay a civil penalty of up to ten thousand dollars and the costs
of the disciplinary action. Id. In the case at hand, both the Amended Complaint issued by the
Board and the Memorandum of Agreement entered into between Appellant and the Board
plainly stated that Appellant was being disciplined pursuant to Section 40-47-200 (R. at 7-8, 26-28), and the Amended Complaint specifically identified the measures available to the Board as
sanctions for Appellant’s misconduct, including the sanction of a public reprimand (R. at 8).
Accordingly, the Board provided Appellant with sufficient notice of the specific sanctions she
was facing as a result of her professional misconduct.
Further, the Board’s decision to impose one of these available sanctions upon Appellant
for her misconduct cannot be said to constitute an abuse of discretion. The particular sanction
imposed by the Board upon Appellant—a public reprimand—is not only well within the range of
the sanctions authorized in Section 40-47-200, but is also expressly identified in that section as a
sanction available to the Board. See S.C. Code Ann. § 40-47-200(A). As such, the Board’s
issuance of a public reprimand of Appellant for her admitted violations of Section 40-47-200 and
Regulation 81-60 cannot be considered an abuse of discretion. See Deese v. S.C. State Bd. of
Dentistry, 286 S.C. 182, 185, 332 S.E.2d 539, 541 (Ct. App. 1985) (holding that, because “the
sanctions [imposed by the State Board of Dentistry] were within those established by law, [the
dentist’s] contention that they were arbitrary and capricious is without merit”); Gale v. State Bd.
of Med. Exam’rs, 282 S.C. 474, 479, 320 S.E.2d 35, 38 (Ct. App. 1984) (holding that the State
Board of Medical Examiners is not required “to invoke certain sanctions for certain violations,”
but rather that “[a] showing of any misconduct listed in Section 40-47-200 may result in license
revocation, suspension, restriction or limitation”).
Appellant also contends that the Board’s decision to publicly reprimand her violated her
right to equal protection under the law, because the Board has privately reprimanded other
physicians who have been disciplined for problems with drugs. “The sine qua non of an equal
protection claim is a showing that similarly situated persons received disparate treatment.”
Grant v. S.C. Coastal Council, 319 S.C. 348, 354, 461 S.E.2d 388, 391 (1995); see also TNS
Mills, Inc. v. S.C. Dep’t of Revenue, 331 S.C. 611, 626, 503 S.E.2d 471, 479 (1998) (same). In
the case at hand, Appellant has made no such showing. While the record does contain a list
prepared by Appellant citing to fifteen private reprimands issued by the Board between 1999 and
2003 for various types of misconduct, this list does not purport to contain all sanctions imposed
by the Board during that time against physicians with drug abuse problems, or to be a
representative sample of such sanctions, nor does it contain information demonstrating that the
cases cited share significant similarities with Appellant’s case. (R. at 116-17.) In fact, from the
few facts listed, it appears that most of these physicians were not similarly situated to Appellant;
for example, only five of the cited reprimands involved physicians obtaining controlled
substances for their personal use, while the remainder dealt with record-keeping violations or
violations related to improper prescribing practices. (R. at 116-17.) These few examples of
private reprimands issued by the Board are simply insufficient to establish an equal protection
violation. Accord Dharmavaram v. Dep’t of Prof’l Regulation, 576 N.E.2d 361, 371 (Ill. App.
Ct. 1991) (holding that a physician failed to demonstrate an equal protection violation where he
summarily cited to five other physician disciplinary cases but “did not provide any of the
specific facts of the cases, mitigating circumstances, or the findings and conclusions of the
Department in [the] cases”); Rossiter v. State Med. Bd. of Ohio, 802 N.E.2d 1149, 1154 (Ohio
Ct. App. 2004) (noting that “where a physician offers no evidence to support a claim of
discrimination other than a list of other physicians who received lesser sanctions, no equal
protection violation is shown”).
Moreover, to the extent Appellant has demonstrated any disparate treatment of somewhat
similar cases, it should be noted that
[a]n agency need not exercise its discretion identically in every case. “A penalty
that is within the authority of the agency is not rendered invalid in a particular
case because it is more severe than sanctions imposed in other cases” and “mere
unevenness in the application of the sanction does not render its application in a
particular case unwarranted in law.”
Deese, 286 S.C. at 185, 332 S.E.2d at 541 (quoting Villela v. Dep’t of the Air Force, 727 F.2d
1574 (Fed. Cir. 1984)). Thus, Appellant has not established that the Board’s decision to impose
a public reprimand upon her violated her right to equal protection.
Finally, Appellant argues that the sanction provisions of Section 40-47-200 allow an
impermissible delegation of legislative authority to the Board in violation of the “non-delegation
doctrine,” because it grants the Board unbridled, uncontrolled, or arbitrary power to determine
the appropriate sanction for physician misconduct. While the success of this argument is very
unlikely, see Gale, 282 S.C. at 479-80, 320 S.E.2d at 38-39 (upholding the definitions of
misconduct in Section 40-47-200 against a challenge under the non-delegation doctrine), it is an
argument directed at the constitutionality of the statute that cannot be addressed by this Court.
See Video Gaming Consultants, Inc., 342 S.C. at 38, 535 S.E.2d at 644.
The Board’s public reprimand of Appellant for her admitted misconduct is well within its
sanctioning authority under Section 40-47-200, and Appellant has not demonstrated that, in
exercising that authority, the Board acted arbitrarily or discriminatorily. In short, Appellant has
not established any sufficient grounds upon which to disturb the sanction imposed by the Board.
ORDER
Therefore, for the reasons set forth above,
IT IS HEREBY ORDERED that the Board’s Final Order of June 9, 2004, publicly
reprimanding Appellant and imposing other sanctions upon her for her admitted misconduct
under Section 40-47-200 and Regulation 81-60, is AFFIRMED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
February 7, 2005
Columbia, South Carolina |
