ORDERS:
ORDER
STATEMENT OF CASE
The present appeal by Anonymous Physician was filed just as a Medical Board Hearing
Panel was about to begin taking evidence on January 21, 2005. The Board now moves to
dismiss this matter on the ground that it is an appeal from an interlocutory decision and therefore
is not immediately appealable. A hearing was held before the Administrative Law Court (ALC
or Court) on February 8, 2005.
BACKGROUND
Previous Injunctions
The Medical Board first took action against Petitioner on August 6, 2004 by issuing a
Cease and Desist Order requiring that he stop intravenous infusions until further notice.
Petitioner appealed this action to the ALC, and the matter was resolved by an agreed-upon
modification that Petitioner would cease only the practice of intravenous infusions of hydrogen
peroxide.
On September 30, 2004, having received reports of other activities by Petitioner, the
South Carolina Department of Labor, Licensing and Regulation (LLR or Department) initiated a
proceeding in the ALC for a temporary suspension of the Petitioner’s license to practice. This
motion was filed pursuant to the ALC’s authority to enjoin violations of the Medical Board’s
practice act. More specifically, the injunction was sought pursuant to S.C. Code Ann. § 40-1-210 (2001).
Judge Carolyn Matthews issued an Order concerning the Motion for Suspension on
November 18, 2004 (Matthews Order). In that Order, Judge Matthews held among other things
that there was no evidence that the full Medical Board itself had authorized the filing of the
Motion for Suspension with the ALC. As a result, Judge Matthews denied the Board’s request
for suspension or injunctive relief. On or about November 30, 2004, the Board filed a Petition
for Review with the Circuit Court, but that appeal has yet to be heard.
Formal Complaint
In early October 2004, shortly after filing the Motion for Suspension in the ALC, the
Board commenced its own disciplinary proceeding by filing a Formal Complaint against
Petitioner. However, the aforementioned Matthews Order opined that the Formal Complaint,
although brought on the authority of officials to whom the Board had delegated authority to do
so, could not be authorized by any person or entity other than a majority of the full Board itself.
In response to that holding, the Board held a meeting several days later and authorized (or re-authorized) the Formal Complaint in this case. Another Formal Complaint was filed shortly
thereafter.
Pursuant to the most recent Formal Complaint, a Medical Board Panel Hearing was
noticed and scheduled for January 21, 2005. At that hearing, Petitioner made an oral motion that
the proceeding should be either dismissed or discontinued based on res judicata, Rule 12(b)(8),
SCRCP (“another action pending”), and due process. The Panel denied those motions and
proceeded with the hearing. Counsel for Petitioner then announced that he was filing a Notice of
Appeal with this Court by means of placing a call to someone who was standing by at the ALC
with the Notice of Appeal ready to be filed. Petitioner’s Counsel then asserted that the filing of
the Notice of Appeal rendered further proceedings before the Medical Board Panel null and void
pending the outcome of the appeal. The Panel decided to adjourn the case out of an abundance
of caution just in case Petitioner’s counsel was correct.
DISCUSSION
Interlocutory Appeal
Petitioner claims that the case below should be dismissed because the Medical Board
now has two proceedings “going on” at the same time in violation of Rule 12 (b)(8), SCRCP,
that he cannot receive a fair trial, and that the prosecution of the case is barred pursuant to the
principle of res judicata.
The Administrative Procedures Act (APA), not the Rules of Civil
Procedure, generally provide the rules for procedure before administrative agencies. See Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000) (“The APA outlines a variety of rights
and procedures available to the parties in a contested case decided by an administrative
agency.”). Furthermore, ALC Rule 68 provides that: “The South Carolina Rules of Civil
Procedure may, where practicable, be applied in proceedings before the Court to resolve
questions not addressed by these rules.” (emphasis added). However, there is no need to resort
to the Rules of Civil Procedure because S.C. Code Ann. § 1-23-380 (Supp. 2004) provides the
standard for seeking interlocutory review in APA cases. Therefore, I find that Rule 12(b)(8),
SCRCP, is inapplicable to this proceeding and those considerations of its principles are
unnecessary. Moreover, even if Rule 12(b)(8) was applicable, a denial of any Rule 12(b)(8)
motion to dismiss is not appealable in South Carolina. Breland v. Love Chevrolet Olds, Inc.,
339 S.C. 89, 529 S.E.2d 11 (2000).
Petitioner also appealed this case after the Panel refused to dismiss his case because he
believes the case is barred under by the doctrine of res judicata (the merits have already been
litigated) and that he cannot receive a fair trial before the Medical Board. The Administrative
Law Court has appellate jurisdiction to review final decisions of contested cases before
professional and occupational licensing boards within the Department of Labor, Licensing, and
Regulation. S.C. Code Ann. § 1-23-600(D) (Supp. 2004). The ALC’s appellate review of those cases is
conducted pursuant to S.C. Code Ann. § 1-23-380(A) (Supp. 2004). Section 1-23-380 (A) sets forth that:
“[a] preliminary, procedural, or intermediate agency action or ruling is immediately reviewable
if review of the final agency decision would not provide an adequate remedy.” Therefore, this
Court may address an interlocutory order of the Board only when review of the Board's final order through the
normal appellate process would not provide an adequate remedy to Petitioner.
In addressing whether the Board’s decision would provide an adequate remedy, it is certainly
important to consider the general view concerning interlocutory appeals. The South Carolina
courts seek to avoid “piecemeal” litigation. Breland, supra. Obviously, if appeals within a case
are allowed, litigation would be greatly protracted. In that regard, the South Carolina Supreme
Court recently reaffirmed its longstanding position in Olson v. Faculty House of Carolina, Inc.,
354 S.C. 161, 580 S.E.2d 440 (2003) that a denial of summary judgment is not an appealable
order. The Court referenced Medlin v. W.T. Grant, Inc., 262 S.C. 185, 203 S.E.2d 426 (1974) in
support of its holding. In Medlin, the Court dismissed the appeal of a denial of summary
judgment based, in part, on the defense of res judicata.
Furthermore, two South Carolina cases have addressed due process issues similar to this case. In
Adamson v. Richland County School Dist. One, 332 S.C. 121, 503 S.E.2d 752, (S.C. App. 1998)
the school district superintendent suspended a school teacher and recommended that the school
board terminate her employment. The S.C. Court of Appeals held that she must first exhaust her
administrative remedies under the Teacher Employment and Dismissal Act by seeking review
before the school board. The Court noted that “[t]he board is free to reject the Superintendent's
recommendation for dismissal, lift his suspension, and reinstate Adamson without loss of
compensation, in which case Adamson would have no reason to complain.” Furthermore, the
Court recognized that the teacher was “free to interpose ‘any and all defenses’ she has pertaining
to the suspension and dismissal recommendation, whether those defenses relate to procedural or
substantive issues.”
Likewise, in Smith v. South Carolina Retirement System, 336 S.C. 505, 520 S.E.2d 339
(S.C. App. 1999), the Court recognized that “[a] general exception to the requirement of
exhaustion of administrative remedies exists when a party demonstrates that a pursuit of them
would be a vain or futile act.” Nevertheless, the Court held that even if an appellant has good
reason to believe that their administrative remedies were futile, unless the administrative agency
has taken “a hard and fast position that [makes] an adverse ruling a certainty,” they must exhaust
their administrative remedies. Id. at 350 (quoting Thetford Properties IV Ltd. Partnership v. U.S.
Dep't of Housing and Urban Development, 907 F.2d 445, 450 (4th Cir.1990)).
Here, the grounds cited by Petitioner in his Notice of Appeal are basically that he will be
unduly harmed by having the present matter proceed to an evidentiary hearing. This case is a
good illustration of the evils of piecemeal litigation: if Petitioner is allowed to proceed with this
appeal, the merits hearing on this case could be postponed for years while a physician who
potentially may be harming the public remains in active practice. Rather than “piecemeal” this
case, Petitioner can raise his procedural or substantive issues to the Medical Board. The Panel or
the Board may choose to dismiss all or part of the charges levied against him. Furthermore, on
subsequent appeal to the ALC, the Court may reverse or modify the Medical Board's final order or remand the
case for further proceedings “if substantial rights of the appellant have been prejudiced" because the Board’s
decision is, among other things, “in violation of constitutional or statutory provisions; . . . made upon unlawful
procedure; . . . affected by other error of law; . . . [or] arbitrary or capricious or characterized by abuse of discretion.”
S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2004). Therefore, since these procedures are an adequate remedy for the
due process violations alleged by Petitioner, his interlocutory appeal is not currently reviewable by the ALC and the
jurisdiction of this case remains with the Medical Board. See, e.g., Rhodes v. Southern Ry. Co.,
68 S.C. 494, 47 S.E. 689, 691-692 (1904).
Res Judicata
Even if Petitioner’s res judicata defense is proper to consider in this proceeding, I find
that he has failed to establish that defense. The doctrine of res judicata is based upon the well-established rule that the public interest is served by having an end to litigation and that no one
should be sued twice for the same cause of action. First National Bank of Greenville v. U.S.
Fidelity & Guaranty Co., 207 S.C. 15, S.E.2d 47 (1945). Administrative res judicata is
comparable to the doctrine of judicial res judicata and precludes not only the relitigation of the
same issues in an administrative hearing but also in a subsequent judicial proceeding. 5 Jacob A.
Stein, Glenn A. Mitchell & Basil J. Mezines, Administrative Law § 40.01 (Supp. 1996); see also
Earls v. Aycock, 276 S.C. 471, 279 S.E.2d 614 (1981) (holding that the mere fact an
administrative agency rather than a judicial body rendered the previous decision does not prevent
the application of res judicata). It prevents the parties from relitigating in a second action any
issue actually litigated or that might have been litigated in the first action so long as the first and
second actions are between the identical parties and the first action culminated in a final
judgment. Griggs v. Griggs, 214 S.C. 177, 51 S.E.2d 622 (1949). “The doctrine requires three
essential elements: (1) the judgment must be final, valid and on the merits; (2) the parties in the
subsequent action must be identical to those in the first; and (3) the second action must involve
matter properly included in the first action.” Owenby v. Owens Corning Fiberglas, 313 S.C.
181, 183, 437 S.E.2d 130, 131 (Ct. App.1993). More specifically, a party seeking to invoke a res
judicata defense must establish that the former suit adjudicated “the precise question sought to
be raised in the second suit.” See Griggs at 627.
As set forth above, Petitioner maintains that the previous case before Judge Matthews
was an adjudication of the merits of the current Medical Board case. However, as reflected in
the Matthews Order and in the pleadings seeking an appeal of that order, it was a request for an
injunction pursuant to Section 40-1-210 by the Department. Petitioner argues that Section 40-1-210 is inapplicable to cases involving the Medical Board because the Board may use only
Section 40-47-210 which specifically authorizes injunctions by the Board. Petitioner further
urges this Court to construe Section 40-47-210 to mean that when an agency seeks to obtain an
injunction, the underlying charges of wrongdoing may or must be decided by the ALC rather that
the Board in the injunction action.
Use of Section 40-1-210
Section 40-1-210 provides that “[t]he department in addition to instituting a criminal
proceeding, may institute a civil action through the Administrative Law [Court], in the name of
the State, for injunctive relief against a person violating this article . . . .” Section 40-1-210 is
part of the LLR umbrella statute created by 1996 Act No. 453, § 2 (Act 453). There are several
aspects of Act 453 which are noteworthy to this case. Act 453 created two general provisions by
which injunctions could be sought against individuals regulated by Title 40. Section 40-1-210
allows the Department to institute a proceeding.
On the other hand, Section 40-1-100(A)
provides that “[w]hen 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 immediately to cease and desist from engaging in the
conduct.” (emphasis added).
Thus, Sections 40-1-100 and 40-1-210 created a general procedure
for the Department to independently seek an injunction and a general procedure in addition to
existing procedures for various boards to seek an injunction against individuals regulated by
Title 40.
Act 453 was also created subsequent to various provisions of Chapter 47 of Title 40
(§§40-47-5 et seq.) upon which Petitioner relies. “A basic presumption exists that the legislature
has knowledge of previous legislation when later statutes are passed on a related subject.”
Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760, 762 (1993). See also Justice v. Pantry, 330
S.C. 37, 496 S.E.2d 871 (S.C. App. 1998) (“It is presumed that the Legislature [is] familiar with
prior legislation, . . . hence, if by any fair or liberal construction two acts may be made to
harmonize, no [c]ourt is justified in deciding that the last repealed the first.”) (quoting State v.
Hood, et al., 181 S.C. 488, 491, 188 S.E. 134, 136 (1936)). Moreover, Section 40-1-100 sets
forth that its provision exists “in addition to all other remedies.” Accordingly, though Section
40-47-210 specifically grants the Medical Board authority to seek injunctions, the General
Assembly clearly created not only a new provision for the Department to seek injunction but also
another general grant of authority for the Medical Board to seek an injunction .
Furthermore, having the formal charges tried before the ALC in injunction proceedings
would create a class of cases normally tried before the various boards. That construction would
partially repeal the current statutory procedure granting a licensee the right to be heard by their
regulatory board. In Hodges v. Rainey, 341 S.C. 79, 88, 533 S.E.2d 578, 583 (2000), the South
Carolina Supreme Court held that: “The law does not favor the implied repeal of a statute . . .
and that if it intends to repeal existing laws it would ... expressly do so; hence, if by any fair or
liberal construction two acts may be made to harmonize, no court is justified in deciding that the
later repealed the first.”
I find that Section 40-47-210 and the general provisions providing for the Medical Board
to decide the merits of disciplinary cases, can be reasonably reconciled to read that the ALC
hears and subsequently issues orders only concerning the issue of the licensee’s suspension from
the practice of his profession. Therefore, since the temporary suspension was sought under the
Department’s authority to seek the suspension, this case deals with both different issues and
parties.
Section 40-47-210
In order to hold that the issues about Petitioner’s professional disciplinary sanctions were
“actually litigated” or “might have been litigated” in the case before Judge Matthews, it is
necessary to hold that such issues may be tried in original proceedings before the ALC.
Petitioner has argued that litigation of the merits of disciplinary proceedings in injunction
matters is authorized by the part of Section 40-47-210 which provides that the ALC “may issue
any other order in the matter it deems proper” in addition to the injunction. However, the
context of the statute strongly indicates that by using the term “any other order,” the General
Assembly meant only to include orders related to the motion for temporary injunction that are of
a similar nature. There is no suggestion of an intention to make the ALC the primary adjudicator
of Medical Board disciplinary cases in injunction matters. Such an interpretation would simply
be contrary to the policy expressed in Sections 40-47-5 et seq. In establishing the procedure for
adjudicating medical disciplinary cases, Section 40-47-200 specifically provides that the Medical
Board is the entity charged with hearing those cases, subject only to appellate review by the
ALC and other judicial tribunals. Thus, the motion for suspension heard by Judge Matthews was
clearly not an action “for the same claim” as the matter filed by the Medical Board. Rather, the
motion for suspension is properly regarded as a motion for temporary injunctive relief pending
the outcome of the Medical Board disciplinary proceeding, and cannot be regarded as a
substitute for the disciplinary proceeding itself.
Moreover, “[i]t is well-settled that statutes dealing with the same subject matter are in
pari materia and must be construed together, if possible, to produce a single, harmonious result.”
Grant v. City of Folly Beach, 346 S.C. 74, 79, 551 S.E.2d 229, 231 (2001). If possible, this
Court is obligated to reconcile conflicts and avoid a construction that would read a provision out
of a statute. Steinke v. South Carolina Dept. of Labor, Licensing and Regulation, 336 S.C. 373,
520 S.E.2d 142 (1999). Here, Petitioner’s interpretation would have to be applied to the statutes
setting forth the same or similar language. Several other statutes in Title 40 set forth that the
Administrative Law Judge “may issue any other order in the matter it deems proper” when
determining a temporary suspension matter. See S.C. Code Ann. §§ 40-9-95 (Chiropractors and
Chiropractic); 40-61-40 (Sanitarians); and 40-69-210 (Veterinarians).
A number of other
statutes in Title 40 set forth practically the same language that the Administrative Law Judge
“may issue any other order in the matter it considers proper” when determining a temporary
suspension matter. See S.C. Code Ann. §§ 40-47-660 (B) (Respiratory Care); 40-47-1000 (C)
(Physician Assistants); 40-47-1280 (C) (Anesthesiologist's Assistants); 40-63-100 (B) (Social
Workers); and 40-75-100 (B) (Professional Counselors and Marriage and Family Therapists). In
fact, several statutes which specifically authorize Circuit Court to issue injunctions regarding
administration agencies also use statutory language very similar to the statute at issue in this
case. See S.C. Code Ann. §§ 44-56-50 (Hazardous Waste Management); 44-93-50 (Infectious
Waste Management); 13-7-40(L) (Department of Health and Environmental Control); and 6-8-50 (Building Codes Enforcement).
The "primary or fundamental rule of statutory construction a court must follow is to
ascertain and give effect to the legislature's intention or purpose as expressed in the statute."
Scholtec v. Reeves, 327 S.C. 551, 558, 490 S.E.2d 603, 606-607 (Ct. App. 1997). The language
used in the statute should be given its plain and ordinary meaning without resort to subtle or
forced construction to expand or limit the scope of the statute. Berkebile v. Outen, 311 S.C. 50,
426 S.E.2d 760 (1993). Furthermore, the interpretation of a term set forth in a statute should
support the purpose of the statute and should not lead to an absurd result. S.C. Coastal Council
v. S.C. State Ethics Comm’n, 306 S.C. 41, 410 S.E.2d 245 (1991).
Petitioner's interpretation that of language providing the ALC may issue “any other order
in the matter it deems proper” means the ALC can try the merits of medical disciplinary cases in
suspension proceedings is simply not reflective of the legislative intent for those statutes. The
reasonable interpretation of the legislative intent of Section 40-47-210 is that the ALC can issue
an order in addition to, or other than suspending, the licensee to accomplish a just result.
Petitioner’s interpretation of Section 40-47-210 would also lead to the absurd result that all
“suspension” statutes with language similarly setting forth that issue a court may issue “any
other order in the matter it deems proper” would warrant the merits of board cases being tried at
by the court rather than before the respective boards. Therefore, the prior matter before Judge
Matthews cannot be regarded as one in which the disciplinary issues “might have been litigated.”
Therefore, I conclude that this case is not barred by res judicata because the prior petition
for suspension or injunctive relief did not result in a judgment on the merits of whether
Petitioner should be suspended. In fact, there are simply no findings of fact in the Matthews
Order to support that contention. More importantly, even if that case reached a final decision on
the merits, it did not involve the same issues that are before the Medical Board in this case. The
issue in the previous case involved nothing more than whether to grant a motion for a temporary
injunction pending the separate disciplinary action filed at the Board level. Here, the case
currently before the Board involves the separate issue of determining the merits of the
disciplinary action.
Due Process
Petitioner contends that it would also violate his due process rights to be tried by the
Medical Board since it has already determined to suspend him.
S.C. Const. art. I, § 22 states, in
full:
No person shall be finally bound by a judicial or quasi-judicial decision of an
administrative agency affecting private rights except on due notice and an
opportunity to be heard; nor shall he be subject to the same person for both
prosecution and adjudication; nor shall he be deprived of liberty or property
unless by a mode of procedure prescribed by the General Assembly, and he shall
have in all such instances the right to judicial review.
“Due process of course requires a hearing before an impartial decision maker. It does not,
however, prohibit a single agency . . . from combining investigative and adjudicative functions,
one group or individuals passing upon facts developed by others within the same organization.”
Babcock Center, Inc. v. Office of Audits, 286 S.C. 398, 402, 334 S.E.2d 112, 114 (1985)
(quoting Woodland Nursing Home Corporation v. Weinberger and Travelers Insurance
Company, 411 F. Supp. 501 (S.D.N.Y.1976)). Furthermore, in Garris v. Governing Bd. of South
Carolina Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48 (1998), the South Carolina Supreme
Court addressed the issue of receiving a fair trial pursuant to Article I, Section 22 when an
agency investigates and prosecutes a licensee for a regulatory violation. The Court held that
“[t]he fact that investigative, prosecutorial, and adjudicative functions are performed within the
same agency, or even performed by the same persons within an agency, does not, without more,
constitute a violation of due process.” Moreover, “[a]gency officials or members who adjudicate
a matter are presumed to be honest, fair, and unbiased.” Id. at 54. Nevertheless, the Court held
that an agency violates Section 22 when the same persons serve as prosecutor and adjudicator
placing “future adjudicators in situations where they had the opportunity to form . . . premature
opinions.” Id. at 55.
Here, this case is yet to be tried or reviewed by the Medical Board. Though Petitioner
claims that his due process right will be violated if he is forced to try this case before the
Medical Board, his construction of Section 22 would operate to void other licensees' existing
statutory due process right to be heard by their regulatory board. Moreover, the case resulting in
the Matthews Order was litigated before the ALC under the authority of the Department and not
the Medical Board. Therefore, though Petitioner may “feel” he will not receive due process, there
is no record reflecting evidence to overcome the presumption that his Panel hearing will be unbiased. Accordingly, I
find that even if Petitioner’s due process claim is properly before this Court, he has failed to
establish the merits of his claim.
ORDER
IT IS THEREFORE ORDERED that this case is Dismissed.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
February 18, 2005
Columbia, South Carolina |
