ORDERS:
ORDER GRANTING MOTION TO DISMISS
This matter is before me pursuant to the Notice of Appeal filed by Walter McLawhorn
(“Appellant”) on October 1, 2002. A Motion to Dismiss was filed by the Respondent, South
Carolina Department of Labor, Licensing & Regulation, State Board of Medical Examiners
(“Board”) asserting that Appellant lacks standing to appeal a decision of the Board.
FACTUAL BACKGROUND
Appellant appeared at the July meeting of the Board to present his concerns regarding
lack of care provided by South Carolina physicians to children under Medicare/Medicaid. No
contested case was filed. The Board responded to Appellant’s concerns in a letter dated
September 16, 2002. The Board stated in the letter that while it understood Appellant’s
concerns, South Carolina physicians are not mandated to provide care for anyone, excepting
emergency and life-threatening situations. The Board further explained that it does not consider
refusal to accept Medicare/Medicaid patients to be per se unprofessional conduct and a violation
of the Medical Practice Act. Appellant filed a Notice of Appeal with the Administrative Law
Judge Division (“Division”) on October 1, 2002. In his Notice of Appeal, Appellant stated that
the Board has misinterpreted South Carolina law and failed to take proper action on behalf of
South Carolina children.
The Board filed a Motion to Dismiss on October 31, 2002, stating that no contested case
exists between the Board and Appellant, that no Final Order has been issued by the Board, and
that no hearing was held to create a record for review by this court. The Motion was
accompanied by an affidavit from John D. Volmer, Administrator of the Board. Mr. Volmer
stated in his affidavit that Appellant had made complaints against groups of physicians, but not
against any individual. He further stated that no contested case had been filed in this matter, and
that Appellant had merely appeared at the Board’s July meeting and discussed his concerns
about the provision of care to children receiving Medicaid benefits. Appellant made a Response
to the Board’s Motion to Dismiss in which he stated that he believes this matter is a contested
case and that the Board has failed to investigate his complaints.
DISCUSSION
The South Carolina State Board of Medical Examiners is responsible for the licensing
and disciplining of physicians in South Carolina. S.C. Code Ann. §§ 40-47-60 and 40-47-200.
The Administrative Law Judge Division has jurisdiction over appeals from “Any action of the
Board relating to the granting, refusal, or cancellation of a license, or any other official action of
the board relating to a license or licensee hereunder.” S.C. Code Ann. § 40-47-170. In this case,
however, there appears to be no official action or Final Order of the Board for the court to act
upon. There must be some action by the Board in regards to a license or licensee for the court to
review. The Board has taken no action against any such license or licensee.
Under S.C. Reg. 81-13, the Board will make a preliminary investigation regarding an
initial complaint. Should the Board find that there is not sufficient evidence to charge
misconduct, the complaint shall be dismissed and the Administrator of the Board shall notify the
complainant, who may petition the Board for a rehearing. In this case, it is unclear whether there
was ever an initial complaint filed against an individual physician. The Board asserts that only a
complaint against a group of physicians was filed. However, even if an initial complaint against
an individual physician was filed, the Board has followed its regulations. Appellant was notified
by the Board’s letter of September 16, 2002, that the Board did not consider refusal by a
physician to treat Medicare/Medicaid patients (excepting emergency and life-threatening
situations) to be misconduct.Appellant has the right to petition the Board for a rehearing.
Proceedings before the Board serve the purpose of protecting the public at large against
incompetent licensees and practitioners, or licensees and practitioners who commit misconduct.
See S.C. Code Ann. § 40-1-40; Wilson v. State Board of Medical Examiners, 305 S.C. 194, 406
S.E.2d 345 (1991). Appellant puts forth broad policy-based arguments which are more properly
before the legislature and does not advance a justiciable controversy. As such,
IT IS HEREBY ORDERED that this case is dismissed.
AND IT IS SO ORDERED.
_______________________________
Marvin F. Kittrell
Chief Administrative Law Judge
March 12, 2003
Columbia, South Carolina |
