ORDERS:
ORDER DENYING REQUEST FOR INJUNCTIVE RELIEF
STATEMENT
OF THE CASE
The
above-captioned matter is before this Court upon a Request for Injunctive
Relief filed by Petitioner, a physician who is currently the subject of a
disciplinary investigation by Respondent South Carolina Department of Labor,
Licensing, and Regulation, through the State Board of Medical Examiners
(Board). In her request, Petitioner seeks an order from this Court compelling
the Board to comply with certain discovery requests she has made during the
disciplinary proceedings. However, for the reasons set forth below, I find
that this request for injunctive relief must be denied.
BACKGROUND
On
November 1, 2005, the Board issued a formal complaint against Petitioner
alleging that she committed several acts of professional misconduct, including
revealing confidential patient information and prescribing medication for
persons without establishing proper physician-patient relationships. As a
result of the issuance of the complaint, Petitioner sought to depose Cheryl
McNair, the Board’s employee responsible for investigating the complaint
against Petitioner, and to require the production of the Board’s entire
investigative file regarding the complaint against Petitioner. When counsel
for the Board refused to produce either Ms. McNair or her investigative file in
response to Petitioner’s discovery requests, Petitioner filed her Request for
Injuntive Relief with this Court on May 2, 2006. In the request, Petitioner
seeks an order from this Court requiring the Board and its counsel “to comply
with the requirements of Rule 21 of the Rules of Procedure for the
Administrative Law Court by producing . . . Investigator Cheryl McNair for her
deposition together with her file and such other investigative material
contained in the Board’s file relevant to this Complaint.” Petitioner’s
Request for Injunctive Relief at 2. By a Motion to Dismiss filed on May 12,
2006, the Board moved to dismiss this matter on the grounds that Petitioner’s
challenge to the Board’s discovery process was premature, as the Board had yet
to issue a final order in her disciplinary matter, and that Petitioner’s
request inappropriately relied upon ALC Rule 21, which applies to discovery in
contested case proceedings before the Administrative Law Court, but not to the
contested case proceedings of other agencies. Subsequently, the Court
conducted a conference call with the parties to discuss the issues presented by
this matter. At the close of the call, the Court allowed the parties to
supplement their arguments with written briefs, which were filed by Petitioner
and the Board on June 13, 2006, and July 13, 2006, respectively.
DISCUSSION
The
crux of Petitioner’s argument in this matter is that principles of due process,
portions of the Administrative Procedures Act, and provisions of the Rules of
Procedure for the Administrative Law Court require the Board to allow her to
conduct her requested discovery, including the deposition of the Board’s
investigator and the production of her investigatory files. However, I find
that, whatever the merits of Petitioner’s claims to the requested discovery,
the refusal of the Board’s counsel to refuse such discovery is not immediately
reviewable by this Court.
The
South Carolina Administrative Law Court has appellate jurisdiction over final
decisions issued in contested cases before the professional and occupational
licensing boards with the South Carolina Department of Labor, Licensing, and
Regulation, including the State Board of Medical Examiners. See S.C.
Code Ann. § 1-23-600(D) (Supp. 2005), amended by Act No. 387, § 4, 2006
S.C. Acts ___; Act No. 385, § 1, 2006 S.C. Acts ___ (to be codified at S.C.
Code Ann. § 40-47-160).
However, when
this Court sits in such an appellate capacity, it is generally limited to
reviewing final contested case decisions issued by the agency in
question, such that it is precluded from hearing appeals from discovery orders
or other preliminary, procedural, or intermediate rulings issued by the agency
unless review of the final agency decision would not provide an adequate remedy
for the aggrieved party. See S.C. Code Ann. § 1-23-380(A) (2005), amended
by Act No. 387, § 2, 2006 S.C. Acts ___. This proposition that discovery
orders are generally interlocutory in nature and not immediately appealable is
a familiar one in the courts of this State. See, e.g., Lowndes
Prods., Inc. v. Brower, 262 S.C. 431, 205 S.E.2d 184 (1974); Jean H. Toal
et al., Appellate Practice in South Carolina 100-101 (1999). Moreover,
beyond such general principles, recent amendments to the Medical Practice Act
specifically, and rather emphatically, prohibit the Administrative Law Court
from reviewing such procedural and interlocutory orders issued by the Board
until the Board has issued a final decision in the matter. See Act No.
385, § 1, 2006 S.C. Acts ___ (to be codified at S.C. Code Ann. §§ 40-47-45,
40-47-110(E), 40-47-160). In fact, a provision to be codified at S.C. Code
Ann. § 40-47-118(J) states that “[d]isputes concerning depositions and the
disclosure or exchange of information [in a physician disciplinary proceeding]
must be determined by the panel or presiding officer” and that “[r]eview of
these decisions are [sic] not subject to an interlocutory appeal.” Act
No. 385, § 1, 2006 S.C. Acts ___ (to be codified at S.C. Code Ann. §
40-47-118(J)).
Therefore,
even assuming that the refusal of the Board’s counsel to comply with
Petitioner’s discovery requests constitutes a decision of the Board to deny the
discovery to Petitioner, the refusal to allow
Petitioner to conduct her requested discovery is a purely interlocutory
decision that is not immediately appealable to this Court and that may not be
reviewed by this Court until the Board issues a final order in Petitioner’s
disciplinary matter.
ORDER
As
the Board’s decision regarding Petitioner’s discovery requests is not
immediately reviewable by this Court,
IT
IS HEREBY ORDERED that the above-captioned case is DISMISSED.
AND
IT IS SO ORDERED.
______________________________
JOHN D.
GEATHERS
Administrative
Law Judge
August 10, 2006
Columbia, South Carolina
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