SC Administrative Law Court Decisions

STATEMENT OF THE CASE

Appellant Roger E. Adler, M.D. appeals the final Order of the South Carolina Board of Medical Examiners (Board) in which his Petition for Readmission to Practice Medicine was granted with certain restrictions. Appellant alleges the restrictions are arbitrary, capricious and not supported by the evidence. He seeks either an Order from the Administrative Law Court (ALC or Court) directing that the Board’s Order be vacated with respect to the extent that any restrictions be placed on his license to practice medicine, or, in the alternative, that the matter be remanded and the Board be directed to enter an Order without certain restrictions.[1]

STANDARD OF REVIEW

As set forth above, this case is before the Court as an appeal of an agency action pursuant to S.C. Code Ann. § 1‑23‑600(D) (2005)[2] of the Administrative Procedures Act (APA). As such, the Administrative Law Judge sits in an appellate capacity under the APA rather than as an independent finder of fact. In South Carolina, the provisions of the APA govern the circumstances in which an appellate body may reverse or modify an agency decision. S.C. Code Ann. § 1-23-380(A)(6) (2005) sets forth, in relevant part:

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.

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 “substantial evidence” 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. South Carolina Land Resources Conservation Comm’n, 321 S.C. 219, 467 S.E.2d 913 (1996); Grant v. South Carolina 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, 466 S.E.2d 357 (1996), citing Kearse v. State Health and Human Services Finance Comm'n, 318 S.C. 198, 456 S.E.2d 892 (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. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995), citing Gibson v. Florence Country Club, 282 S.C. 384, 318 S.E.2d 365 (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, supra, citing Hamm v. AT&T, 302 S.C. 210, 394 S.E.2d 842 (1990).

PROCEDURAL HISTORY

Dr. Adler is board-certified in child and adult psychiatry and was licensed to practice psychiatry in South Carolina in 1982. After the Board of Medical Examiners filed formal charges against Dr. Adler, a hearing was held on June 7 and 8, 1999. The Disciplinary Panel issued an Order in which it found that Dr. Adler had violated the Medical Practices Act by entering into sexual relationships with two former patients.[3] The Panel also concluded that Dr. Adler had prescribed medication for the mother of one of his child-patients on one occasion when the mother was not a patient. No findings of misconduct were made as to additional allegations, which asserted Dr. Adler had engaged in sexual misconduct with respect to children he was treating.

The Board of Medical Examiners affirmed the Panel’s Report and, by Order dated August 5, 1999, revoked Dr. Adler’s license to practice medicine. On appeal, the Circuit Court vacated that decision and remanded the matter to the Board advising it to consider the need for expert testimony with regard to Dr. Adler’s conduct with Patient E. The Court further ordered that the Board “consider all relevant facts when determining what sanction, if any, is appropriate in connection with the consensual relationships.”

The Board affirmed its initial decision to revoke Dr. Adler’s license and, following another appeal to the ALC, the Circuit Court ordered that the imposition of the sanction of revocation was legal error and that any discipline imposed by the Board must be something less than a revocation. On remand, the Board issued an Order dated November 30, 2003, in which Dr. Adler's license to practice medicine was indefinitely suspended. On February 4, 2004, Dr. Adler filed a Petition for Readmission to Practice Medicine. Following a hearing on May 4, 2004, the Board denied reinstatement stating that it required a more detailed assessment than the opinion of Dr. Steele, which was provided by the Appellant. The Board found that it was necessary to have a “thorough, unbiased, and comprehensive assessment. . . in order to knowledgeably develop a resolution of this matter. . . .” The Board further explained in its decision that it “is crucial for the Board to have confidence that its decision is grounded upon a reliable and independent assessment, as well as upon experts specially trained in this area of physician misconduct.” The Board, therefore, required that Appellant undergo a psychosexual evaluation and assessment by the Behavioral Institute of Atlanta, or by an “independent group or institution, pre-approved by the Board, to perform, at his own expense, the complete assessment and recommendations.” Appellant thereafter requested that the Board approve Dr. William Henry Burke, Ph.D., LPC,[4] to conduct the required assessment. That request was granted by a letter dated May 17, 2004.

After the assessment was complete, the Board held a hearing in which it received the report and testimony from Dr. Burke, as well as additional evidence from the Appellant. Following that hearing, the Board issued an Order that Appellant’s license “remains indefinitely suspended pending compliance with . . . terms and conditions, and until further action by the Board.” The Order set forth specific circumstances under which Dr. Adler could “return to work.” It is these conditions which form the basis for this appeal.

DISCUSSION

The Board’s authority to discipline and presumably to regulate the reinstatement of a physician is set forth in S.C. Code Ann. § 40-47-200(A) (1976), which in pertinent part reads as follows:

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 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 . . . practice of the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence.

Testimony of Dr. Burke

In objecting to the restrictions imposed by the Board, Appellant contends that the Board erred in considering the testimony of Dr. Burke because his opinions were rendered unbelievable in light of the fact that:

·                    Dr. Burke improperly based his opinion upon a Static 99 test, which is a test that “predicts whether or not, with some degree of accuracy, for someone who’s molested or raped in the past, their probability to do it in the future.”

·                    Until moments before his testimony, Dr. Burke had been under the mistaken impression that Dr. Adler had been found guilty of molesting minor patients.

·                    Dr. Burke admitted that the allegations regarding Dr. Adler having sexual contact with children were probably false, based on the results of the polygraph.

·                    The Abel Assessment was tainted by his sleep apnea condition.

Dr. Burke was asked to perform a Sexual Misconduct Evaluation upon the Appellant. In making that evaluation, he performed a Static 99 test upon the Appellant. Dr. Burke testified that that test is considered a minimum standard of care when performing a Sexual Misconduct Evaluation. It is helpful in getting “some general idea of one’s propensity to behave inappropriately in the future.” Moreover, Dr. Burke testified that administration of the Static 99 test was proper because the Appellant had been adjudicated as a “sex offender” by the Medical Board. Accordingly, the results of the test were relevant concerning whether to readmit the Appellant to the practice of medicine. The test revealed that the Appellant was in the “medium high” category to re-offend. In that category 36% of individuals re-offend.

Dr. Burke also performed an "Abel Assessment" upon the Appellant. That test is an instrument used to provide an objective measure of a person’s sexual interest. In fact, the Abel test is clearly the strongest evidence to indicate the probability of recidivism. (See also Testimony of Dr. Luadzer). Accordingly, the results of the Abel Assessment were also relevant concerning whether to readmit the Appellant to the practice of medicine. Nevertheless, Appellant argues that the results of the Abel Assessment should not have been admitted.

Appellant contends that the results of the Abel Assessment were tainted by drowsiness resulting from his sleep apnea condition. However, the Board did not find that Appellant had sleep apnea. It could have reasonably determined from the evidence that Appellant has sleep apnea. In fact, the Board ordered that Appellant undergo diagnosis for sleep apnea. Appellant’s own witness, Dr. Luadzers, had no evidence that Appellant had sleep apnea other than Appellant’s own statements to that effect. More importantly, even if Appellant was drowsy for whatever reason, there is sufficient evidence in the record that that condition did not effect the results of the Abel Assessment. The only reference to drowsiness during Dr. Burke’s testing of Appellant was during the “penile plethysmography” test, not during the Abel Assessment. Moreover, Dr. Burke testified that the Abel test would not have been effected if Dr. Abel dozed off at some point.

Appellant also challenges the use of the Abel Assessment because the report prepared by Dr. Burke concerning the test states Appellant does not show interest in children or sadistic behavior. However, Dr. Burke explained in his testimony that that statement in his report was a clerical error and that his finding pursuant to the Abel Assessment was that Appellant does appear to have a persistent attraction to children.

Appellant further challenges the testimony of Dr. Burke because his original assessment was based upon the belief that the Appellant had been convicted of sexual misconduct with minors. Dr. Burke learned prior to the hearing that Appellant had not been convicted of sexual misconduct with anyone under the age of eighteen (18). Nevertheless, he testified that his original belief that the Appellant had a prior adjudication of sexual misconduct with a minor did not effect his testing protocol. In other words, a prior accusation is a “probability value” that places a patient in the clinical category of child molesters. Accordingly, though evidence of those charges is not admissible evidence in a court proceeding, it is a fact that is relevant in psychologically evaluating a patient. More importantly, Dr. Burke testified that his misunderstanding that the Appellant had a prior adjudication of sexual misconduct with a minor did not alter his assessment of the Appellant or the restrictions he believed are warranted if the Appellant is to resume practicing medicine.

As set forth above, a decision is supported by “substantial evidence” when reasonable minds could reach the same conclusion reached by the Board. Bilton, supra. Here, the evidence would allow reasonable minds to conclude that Dr. Burke properly administered the Static 99 and Abel Assessment tests. Those tests were properly admitted to evaluate the Appellant’s readmission into the practice of medicine. Furthermore, in Small v. Pioneer Machinery, Inc., 329 S.C. 448, 465, 494 S.E.2d 835, 843 (Ct. App. 1998), the Court recognized:

Inconsistencies in the testimony of witnesses is a common occurrence in a trial. Subjecting a witness to the vicissitudes of direct and cross examination often reveals some variance in testimony. A witness testifying with exactitude in each and every instance may be highly suspect. A trial epitomizes a search for the truth. Simplistically put, disparateness in testimony goes to the weight of the testimony of the witness. The fact finder is imbued with broad discretion in determining credibility or believability of witnesses.

Dr. Burke certainly exhibited some inconsistencies in his testimony, as addressed above. Nevertheless, he explained each of the instances in which either his report varied from his testimony or the facts upon which his initial evaluations were based were incorrect. I find that a fact finder, especially the Medical Board which consists of doctors trained in scientific analysis, could evaluate the testimony and still reasonably decide that Dr. Burke’s testimony was credible.

Chaperone and Age Restrictions

The Board ordered that Appellant could return to work under the conditions that:

·                    He shall have a chaperone present in the room with him while seeing patients; and

·                    He shall only treat patients who are eighteen (18) years old and above.

Appellant argues that the evidence does not support placing the restriction upon his practice regarding the treatment of individuals under the age of eighteen (18) because he has never been found guilty of inappropriate conduct with minors.[5] He also argues that there is no justification in requiring a chaperone to be in the room while he “sees” patients, because there is no evidence to suggest, and no finding that Appellant engaged in inappropriate conduct with anyone during treatment or in his office. In support of these contentions, Appellant argues that Dr. Luadzers and Dr. Tom Steele both testified that there was no risk to any patients that the Appellant might see, regardless of their age.^[6]

There is significant evidence in the record relating to the Board’s restrictions concerning the treatment of minors and the need for chaperones. Dr. Burke testified based upon his expert evaluation of the Appellant that the Appellant’s practice should be restricted to treating patients eighteen (18) years and above only while chaperoned. Moreover, though challenged by the Appellant, there is substantial evidence that the tests performed upon the Appellant were the proper protocol for evaluating whether a “professional” sexual offender should return to the practice of medicine. Those tests revealed that the Appellant’s “significant sexual interest include adolescent white females and adult white females.” He specifically showed a 72% probability of having an interest in girls under the age of fourteen (14). In other words, he is in the high probability category of molesting “girls outside the family under the age of 14 years of age.” Furthermore, the Static 99 test revealed that the Appellant was in the “medium high” category to re-offend. In that category 36% of individuals re-offend. Appellant also exhibits Narcissistic Personality Disorder, which includes “an interpersonally exploitative personality, i.e., takes advantage of others to achieve his own ends” and “a lack of empathy.”

The conditions imposed by a Medical Board upon a physician’s reinstatement are within the Board's discretion to impose, provided they are based on factual findings supported by the evidence. In re Eastway, 95 Ohio App.3d 516, 642 N.E.2d 1135 (1994). Accordingly, conditions for reinstatement set by a Board will be upheld if they are “supported by reliable, probative and substantial evidence, and are in accordance with law.” Id at 1138. The above facts along with the Board’s previous finding supporting Appellant’s suspension support a reasonable mind reaching the conclusion that Appellant should be chaperoned and restricted to treating females above the age of eighteen (18) years of age. Accordingly, I find that the requirement that he be chaperoned while treating female patients and that he be restricted from treating females under the age of eighteen (18) is supported by the evidence. The fact that one may disagree with the necessity of those restrictions does not render them arbitrary or unsupported by the evidence. See Grant, supra. (The possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency's finding from being supported by substantial evidence.).

Nevertheless, the record establishes that Appellant’s “persistent sexual attraction toward children” is toward female children. The tests conducted by Dr. Burke did not reflect that the Appellant is attracted to men or boys. Rather, they indicated that Appellant was in the low probability category of molesting “boys outside the family under the age of 14 years of age.” Furthermore, though Appellant was originally charged with unlawful behavior toward several minors, those charges were either dismissed or found to be unsupported by the evidence. Therefore, though the past charges levied against Appellant may create cause for suspicion, there simply is no evidence in the record warranting restriction concerning the Appellant treating men or boys. Consequently, the Board’s decision to impose those restrictions should be modified unless future evidence warrants otherwise.

Treatment for Sleep Apnea

The Board ordered that Appellant could return to work under the condition that he undergoes diagnosis and treatment for sleep apnea. Appellant contends that this condition to his reinstatement is unsupported by the evidence.

During his psychological examination, Appellant dozed off. He stated his drowsiness was the result of sleep apnea.^[7] Furthermore, in answering Appellant’s attorney’s questioning whether the validity of the testing was compromised due to Appellant’s sleep apnea, Dr. Burke stated, “I don’t believe it affected the physiological component of it, but you know it does bring into question how attentive one is during such an important exam.”

Appellant's argument is noteworthy. There is no evidence that his sleep apnea has ever interfered with his ability to practice medicine. Moreover, this was not one of the specific recommendations made by Dr. Burke. On the other hand, though the Board’s authority to regulate the practice of medicine presumably does not authorize it to investigate any potential concern it may have about a physician without justification, this evidence was clearly placed before the Board at the hearing to determine whether reinstating him would pose as a potential problem. The Board’s response to this evidence should be reviewed in the context that it is making a decision as to whether to reinstate a previously suspended physician. The Board is not only concerned that Appellant returns to practice under conditions safe for his patients, but also that Dr. Adler is medically capable of performing his duties. Furthermore, this condition is not onerous but is, rather, an action that a psychiatrist should reasonably be expected to take to insure that his patients receive sound treatment.

Therefore, though the necessity of this condition is certainly debatable, the need for this restriction is supported by substantial evidence. Furthermore, since restricting a physician’s practice is within the parameters of the Board’s disciplinary authority in determining whether to reinstate the Appellant, the Board’s imposition of the restriction was not a capricious act. See Section 40-47-200(A).

Treatment at a Pre-Approved Facility

The Board ordered that Appellant could return to work under the condition that he enter, participate, and successfully complete, to the Board’s satisfaction, one of the approved Professional Sexual Misconduct treatment programs. The Board’s Order set forth that the pre-approved programs “include” Dr. Abel’s program in Atlanta, the Meadows program in Arizona, and the Masters and Johnson program in Arizona. Appellant contends that the requirement that he attend one of only a few selected programs approved by the Board is unreasonable, not related to genuine concerns of the Board, and is arbitrary and capricious. Appellant also argues that this condition constitutes a complete denial of Dr. Adler’s ability to return to work because the costs and geographic locations of these programs are prohibitive.

Nevertheless, there is no evidence in the record to support Appellant’s assertion that the selection of these programs was arbitrary and capricious, or that the costs and geographic locations of these programs are prohibitive. Nor is there evidence that the Board has arbitrarily turned down Appellant’s request for another suitable treatment program. Rather, Appellant seeks to undergo the type of treatment of his choosing and the provider of his choosing - Dr. Luadzers. However, as noted above, the Board did not approve Dr. Luadzers to provide an independent evaluation or find him to be an expert in this matter.[8] To the contrary, Dr. Burke testified that because the treatment of “professional misconduct is a narrow field of expertise,” Appellant should be treated only by those specializing in that area. Furthermore, if Appellant believes that there is a program that is sufficient to treat a psychiatrist concerning the issues in this case, he could seek the Board’s approval of that program.

Appellant also contends that the Board gave no rationale whatsoever for its requirement that the program must be “completed” before Dr. Adler could return to work. Appellant points out that even Dr. Burke’s recommendation was that Appellant “enter, participate, and make substantial progress in” an approved program. I find that the Board in exercising its authority in this area could reasonably decide and order that a physician complete the program rather than simply enter and participate in the program. Therefore, I find that Appellant’s objections to being required to complete the treatment program are plainly without merit.

ORDER

Accordingly, based on the foregoing reasons, the decision of the Board is MODIFIED as follows concerning the Section 3 conditions:

C. Appellant shall have a chaperone present in the room while seeing female patients.

E. Appellant shall only treat female patient who are eighteen (18) years old and above.

All remaining portions of the Board’s decision are AFFIRMED.

AND IT IS SO ORDERED.

_________________________________

Ralph King Anderson, III

Administrative Law Judge

August 15, 2005

Columbia, South Carolina