ORDERS:
ORDER
STATEMENT
OF THE CASE
This
matter came before the Board of Chiropractic Examiners (the Board) for a Final
Order Hearing on May 12, 2005 to consider whether to accept, reject or modify
the Report and Recommendation of the Hearing Examiner dated March 22, 2005.
(R. 4-6 & 29-30.) The Hearing Examiner issued his Report and
Recommendation after conducting an evidentiary hearing on February 24, 2005.
(R. 4.) Appellant represented himself at that hearing and called no witnesses
other than himself. (R. 57-191.) The Hearing Examiner’s Recommendation was
that Appellant be found in violation of S.C. Code Ann. §§ 40-9-90(6),
40-1-110(k) and (l) and S.C. Code Regs. 25-6(A)(4) in that he was negligent,
“as evidenced by his deficient record keeping, billing and/or supervision
thereof.” (R. 5.) The recommended sanction for such misconduct was (1) a
public reprimand, (2) a fine of $2,000.00, (3) three years probation, and (4)
costs of investigation and prosecution, together with some additional
conditions and restrictions on Appellant’s license. (R. 6.)
After
hearing arguments from both parties, the Board, consisting of seven
chiropractors and one attorney, voted unanimously to accept the Hearing
Examiner’s Report and Recommendation, with the added provision that not only
would Appellant’s “probation . . . be extended three years from the date of
[the Board’s] order,” but that any further finding of misconduct or the
commission of “a felony . . . crime of violence or crime of moral turpitude”
during such probation would result in the revocation of his license. (R. 47.)
The previous proceeding to which the Chairman was referring resulted in a
December 13, 2000 Consent Order in which Respondent admitted to practicing
chiropractic without a license. (R. 7-9) This Consent Order placed Appellant’s
license in probationary status, such that his license was to be “revoked if he
is found in violation of any of the laws governing the practice of
chiropractic” during that period. (R. 8.) Thus, as the Chairman noted, under
the terms of that Consent Order, the Board “should have revoked [Appellant’s]
license” in the instant case, but elected not to do so. (R. 48.)
The
Board issued its written Final Order on May 25, 2005. Appellant filed this
appeal on June 28, 2005. (R. 1-3; July 6, 2005 Ord.). The appeal was heard
before me on February 2, 2006. In his appeal, Dr. Carrano is requesting the Administrative
Law Court (“ALC” or “Court”) to overturn the decision of the Board.
ISSUES ON APPEAL
A. WHETHER THE BOARD APPLIED THE CORRECT STANDARD OF CARE IN FINDING
THAT APPELLANT WAS NEGLIGENT IN MAINTAINING DEFICIENT RECORDS, BILLING AND
SUPERVISION THEREOF.
B. WHETHER, AS A MATTER OF LAW, THE SANCTIONS RECOMMENDED BY THE
HEARING OFFICER AND ADOPTED AS MODIFIED BY THE BOARD OF CHIROPRACTIC EXAMINERS
MAY BE DISTURBED ON APPEAL.
STANDARD OF REVIEW
Boards
are agencies for purposes of the Administrative Procedures Act. Ruocco v.
S.C. State Bd. of Registration for Prof’l Eng’rs and Land Surveyors, 314
S.C. 111, 114, 441 S.E.2d 829, 831 (1994) (citing S.C. Code Ann. § 1-23-10(1)
(1986)). Under the APA, "[t]his court will not substitute its judgment for
that of the agency as to the weight of the evidence on questions of fact." Tennis v. South Carolina Dep’t of Soc. Serv., 355 S.C. 551, 557, 585
S.E.2d 312, 315 (2003) (quoting Leventis v. South Carolina Dep't of Health
& Envtl. Control, 340 S.C. 118, 130, 530 S.E.2d 643, 649-50
(Ct.App.2000); S.C. Code Ann. § 1-23-380 (Supp.2002)).
We will not overrule
an agency's decision unless 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.
Tennis at
557 – 558, 585 S.E.2d at 315-316 (quoting Leventis, 340 S.C. at 130, 530
S.E.2d at 650; citing S.C. Code Ann. § 1- 23-380(A)(6) (Supp.2002)).
"Substantial
evidence is not a mere scintilla of evidence nor evidence viewed blindly from
one side, but is evidence which, when considering the record as a whole, would
allow reasonable minds to reach the conclusion that the agency reached." Id.,
355 S.C. at 558, 585 S.E.2d at 316 (quoting Waters v. South Carolina Land
Res. Conservation Comm'n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996)).
"The possibility of drawing two inconsistent conclusions from the evidence
will not mean the agency's conclusion was unsupported by substantial
evidence." Id. "Furthermore, the burden is on appellants to
prove convincingly that the agency's decision is unsupported by the
evidence." Id. (citing Hamm v. AT & T, 302 S.C. 210, 394
S.E.2d 842 (1990)).
“In
reviewing a final decision of an administrative agency under S.C. Code Ann. §
1-23-380, this Court essentially sits as an appellate court to review alleged
errors committed by the agency.” Kiawah Resort Associates vs. South Carolina
Tax Comm’n, 318 S.C. 502, 505, 458 S.E.2d 542, 544 (1995) (citing Ross
v. Medical Univ. of South Carolina, 317 S.C. 377, 453 S.E.2d 880 (1994) (an
administrative appeal must be confined to the record except in cases of alleged
irregularities in the procedure before the agency not apparent on the record). Therefore,
this Court has a limited scope of review and cannot ordinarily consider
issues that were not raised to and ruled on by the administrative agency. Kiawah
Resort Associates at 318 S.C. 505, 458 S.E.2d 544 (citing Cook v. South
Carolina Dept. of Highways and Pub. Transp., 309 S.C. 179, 420 S.E.2d 847
(1992) (issues not ruled on by the trial court will not be addressed on
appeal); 73A C.J.S. Public Administrative Law and Procedure § 191 (1983)
(as a general rule, questions that have not been raised or urged in the
proceedings before the administrative agency will not be considered by the
court on review of the order of such agency).
DISCUSSION
Appellant
contends the hearing officer and the Board did not apply the proper standard of
care in determining that he was negligent as to his record-keeping and
documentation; that the sanction imposed was unduly harsh and further that
Regulation 25-6(A)(4) of the Board of Chiropractic Examiners is too vague to
warrant a finding of misconduct.
At
the hearing on appeal, Appellant presented a number of proposed exhibits and
evidence, which are not a part of the Record on Appeal, including purported
authority taken from the worldwide web and websites such as ChiroWatch.
Pursuant
to South Carolina Appellate Court Rule 209(h), I am without authority to
consider any facts, evidence or proffered exhibits that are not part of the
Record on Appeal. Zaman v. South Carolina State Bd. of Medical Examiners,
305 S.C. 281, 408 S.E.2d 213 (1991), Timms v. Timms, 286 S.C. 291, 333
S.E.2d 74 (Ct. App. 1985).
Further,
to be preserved for appellate review, an issue must have been raised to and
ruled upon by the trial judge. Issues not raised to and ruled upon in the
trial court will not be considered on appeal. Wilder Corp. v. Klaus Wilke, et al, 330 S.C. 71, 497 S.E.2d 731 (1998).
Appellant
asserts that the Board should have applied a subjective standard, i.e., that
instead of relying on the expert’s testimony that Appellant’s records were inadequate
when compared to generally accepted billing practices within the chiropractic
profession (See R. at 105), and/or otherwise applying objective standards of
negligence based on the testimony of the expert, the state’s investigator and
the Appellant, it should have applied a standard of care based on that expected
of a chiropractor with approximately two years of experience. This proposition
must be rejected as completely at odds with the fundamental principles of law
governing both professional malpractice and negligence.
In
professional malpractice cases, the degree of care that must be observed is
that of an average competent practitioner acting in the same or similar
circumstances. King v Williams, 276 S.C. 478, 279 S.E.2d 618 (1981).
Specifically, in a professional negligence cause of action, “the standard of
care . . . is that the professional failed to conform to the generally
recognized and accepted practices in his profession.” Doe v. American Red
Cross Blood Services, 297 S.C. 430, 377 S.E.2d 323 (1989). Moreover, in
setting forth such a standard, our Supreme Court has held that courts will
“defer to the collective wisdom of a profession, such as physicians, dentists,
ophthalmologists, accountants and any other profession which furnishes skilled
services for compensation.” See Kemmerlin v. Wingate, 274 S.C.
62, 261 S.E.2d 50 (1981). It is the prerogative of the Board of Chiropractic
Examiners and other professional licensing boards to impose an appropriate
sanction based on the facts presented. See Walker v. South Carolina
Alcoholic Beverage Control Comm’n, 305 S.C. 209, 407 S.E.2d 633 (1991).
Accordingly,
I find that the Board’s experience in the field of chiropractic makes it
qualified to devise an appropriate sanction. I further find that the sanction
imposed was appropriate given the Appellant’s prior disciplinary history with
the Board and the December 13, 2000 Consent Order’s language which authorized
revocation of the license in the event of further discipline.
Appellant’s
argument that Regulation 25-6(A)(4) is too vague to warrant a finding of
misconduct is without merit. That regulation proscribes unprofessional
conduct, gross incompetence, negligence or misconduct in carrying out the
practice of chiropractic and provides notice to a licensee that acts or
activities found by the Board to be negligent are grounds for disciplinary
action. In this case the hearing officer found, and the Board affirmed, that
the Appellant had violated the Regulation 25-6(A)(4) because he had performed
chiropractic services without adequate and in some cases, with no
documentation, as evidenced by expert testimony presented at the hearing. (R.
109, 110).
In
this case, the judgment of the agency as to the finding of misconduct and the
sanction imposed was reasonable and proper. The record contains more than
sufficient evidence to support the conclusion of the hearing officer and the
Board.
ORDER
THEREFORE IT IS
ORDERED that the decision of the South Carolina Department of Labor,
Licensing and Regulation, Board of Chiropractic Examiners is hereby AFFIRMED.
AND
IT IS SO ORDERED.
______________________________
JOHN D. MCLEOD
Administrative
Law Judge
February 23, 2006
Columbia, South Carolina |
