ORDERS:
ORDER
STATEMENT OF THE CASE
The above-captioned appeal comes before this tribunal pursuant to S.C. Code Ann. § 40-47-170 (2001) and S.C. Code Ann. § 1-23-600(D) (Supp. 2002). Appellant, a psychiatrist, appeals the
South Carolina Board of Medical Examiners’ (Board) refusal to re-register his medical license for
2003-2004 under S.C. Code Ann. §§ 40-47-410 et seq. (2001) because of a pending disciplinary
matter against him. By an Order dated August 13, 2003, this tribunal required the parties to submit
memoranda of law regarding the issues raised in this matter, and oral arguments in this appeal were
heard before this tribunal on September 17, 2003. Based upon the arguments of counsel, the record
before me, and the applicable law, I find that the Board’s refusal to re-register Appellant’s medical
license cannot be sustained.
BACKGROUND
This case arises tangentially from a protracted disciplinary matter with a tortured procedural
history. While the instant matter is distinct from those disciplinary proceedings, a summary of the
disciplinary action taken by the Board against Appellant is necessary to provide context for this
appeal.
In a formal complaint filed on July 7, 1998, the Board charged Appellant with professional
misconduct for engaging in sexual relationships with both a former patient and a current patient
during the late 1980s and prescribing a controlled substance to an individual in the absence of a
physician-patient relationship in 1996. By an Order dated August 5, 1999, the Board found Appellant
guilty of the charges against him and revoked his license to practice medicine as a sanction for the
violations. Appellant appealed the revocation of his license to the Administrative Law Judge
Division, which affirmed the Board’s Order, see Adler v. S.C. Dep’t of Labor, Licensing &
Regulation, State Bd. of Med. Exam’rs, Docket No. 99-ALJ-11-0449-AP (S.C. Admin. Law Judge
Div. May 26, 2000), and then to the Circuit Court before Judge James E. Lockemy.
By an Order issued June 27, 2001, Judge Lockemy affirmed the Board’s findings with regard
to Appellant’s improper prescription and his relationship with a current patient, but reversed the
Board’s sanction against Appellant for his relationship with a former patient. Accordingly, Judge
Lockemy vacated the Board’s order and remanded the case to the Board for further proceedings
regarding the propriety of Appellant’s relationship with a former patient and for a reconsideration of
the sanctions against Appellant based upon those further proceedings. See Adler v. S.C. Dep’t of
Labor, Licensing & Regulation, State Bd. of Med. Exam’rs, No. 00-CP-40-2499, at 9 (S.C. Ct. Com.
Pl. 5th Cir. June 27, 2001) (“The order of the Board of Medical Examiners dated August 5, 1999 is
vacated and the matter is remanded to the Board for proceedings consistent with the findings and
conclusions set forth herein.”) (emphasis added). Upon remand, the Board took additional expert
testimony concerning the ethical implications of Appellant’s relationship with a former patient, found
that Appellant’s relationship with his former patient was improper, and revoked Appellant’s medical
license by an Order dated October 22, 2001. Appellant appealed this second revocation of his license
to the Administrative Law Judge Division, which affirmed the Board’s Order, see Adler v. S.C. Dep’t
of Labor, Licensing & Regulation, State Bd. of Med. Exam’rs, Docket No. 01-ALJ-11-0523-AP
(S.C. Admin. Law Judge Div. Jan. 29, 2002), and then to the Circuit Court before Judge J. Ernest
Kinard, Jr.
Notably, in the interim between Judge Lockemy’s remand and the Board’s reconsideration,
the Board accepted Appellant’s application for the re-registration of his license and issued him a re-registration certificate for 2001-2002.
By an Order dated March 14, 2003, Judge Kinard found the Board’s decision to revoke
Appellant’s license for his improper relationships was arbitrary and capricious, reversed the Board’s
Order, and remanded the matter to the Board to impose sanctions, if any, short of revocation against
Appellant based upon certain, listed factors. See Adler v. S.C. Dep’t of Labor, Licensing &
Regulation, State Bd. of Med. Exam’rs, No. 2002-CP-40-1020, at 3 (S.C. Ct. Com. Pl. 5th Cir. Mar.
14, 2003) (“The Board[‘s] [order] imposing the sanction of revocation was arbitrary and capricious
and evidenced by an abuse of discretion. Its decision is therefore reversed. The matter is remanded
to the Board for entry of an order consistent with the matters set forth herein.”) (emphasis added).
This remand is currently pending before the Board.
After the issuance of Judge Kinard’s Order of remand, Appellant applied to the Board for the
re-registration of his medical license for 2003-2004. However, because the Board’s appeal had the
effect of staying Judge Kinard’s order, the Board, by letter dated May 23, 2003, refused to re-register
Appellant’s license, finding that his license was still considered revoked. After the dismissal of the
Board’s appeal to the Court of Appeals, Appellant again applied for re-registration of his license. By
letter dated August 13, 2003, the Board once more refused to process Appellant’s re-registration,
finding that his re-registration could not be addressed until the Board considered his pending
disciplinary matter on remand. This appeal followed.
ISSUE
The sole issue in the instant appeal is whether the Board properly refused to re-register
Appellant’s medical license for 2003-2004, upon his application, because of the disciplinary matter
pending against him. Neither the merits of that disciplinary matter nor the manner in which those
disciplinary proceedings are being conducted are presently before this tribunal.
DISCUSSION
The basic medical license re-registration statute, S.C. Code Ann. § 40-47-410 (2001),
provides that:
All persons authorized to practice medicine or osteopathy in this State shall by the
first of July of each year apply to the State Board of Medical Examiners for a
reregistration certificate which shall be furnished by the Board after payment of a fee
to be set by the Board.
Id. (emphasis added). This statute and the other re-registration provisions, see S.C. Code Ann. §§
40-47-420 to 40-47-450 (2001), describe a basically ministerial process by which the Board annually
re-registers medical licenses to “persons authorized to practice medicine” upon application and
payment of a fee. In the case at hand, Appellant has submitted a timely application for re-registration
with the correct fee. However, the Board contends that, because of the disciplinary proceedings
pending against him, Appellant is not “authorized to practice medicine” and therefore cannot be re-registered under Section 40-47-410. This argument must fail.
While there is a disciplinary action currently pending before the Board regarding Appellant’s
conduct, there is no current, valid order of the Board revoking, suspending, or otherwise limiting
Appellant’s authorization to practice medicine. The two prior Orders of the Board revoking
Appellant’s license have been reversed by the Circuit Court and are no longer valid.
And, the Board
has yet to take action on the remand of Appellant’s disciplinary proceedings. In short, there are no
outstanding, valid orders issued by the Board impairing Appellant’s authorization to practice
medicine. Accordingly, the Board is required to re-register Appellant’s medical license pursuant to
Section 40-47-410.
It should be noted, however, that, while the Board is presently required to re-register
Appellant’s medical license, it is not without authority to limit Appellant’s authorization to practice
medicine. First, and most obviously, the Board may, within its discretion, take action on Judge
Kinard’s remand of the disciplinary proceedings and issue an order suspending or otherwise
restricting Appellant’s license to practice medicine based upon the existing disciplinary findings
against him. Further, if Appellant is deemed to be a great enough threat to public safety, the Board
is empowered by the Administrative Procedures Act to summarily issue an emergency suspension of
Appellant’s license pending further proceedings against him. See S.C. Code Ann. § 1-23-370(c)
(Supp. 2002) (“If the agency finds that public health, safety or welfare imperatively requires
emergency action, and incorporates a finding to that effect in its order, summary suspension of a
license may be ordered pending proceedings for revocation or other action.”). Similarly, if the Board
“has reason to believe” that Appellant is violating or intends to violate any provisions of the Medical
Practice Act, it may order Appellant to immediately cease and desist and refrain from such conduct,
and it may apply to an administrative law judge for a temporary injunction restraining Appellant from
such conduct. See S.C. Code Ann. § 40-47-210 (2001).
Finally, it should also be noted that, in concluding that the Board must re-register Appellant’s
medical license, this tribunal is not deciding that Appellant is fit to practice medicine in this state.
That issue is simply not before this tribunal. In fact, having taken judicial notice of the prior decisions
before the Administrative Law Judge Division in Appellant’s disciplinary proceedings, see Adler v.
S.C. Dep’t of Labor, Licensing & Regulation, State Bd. of Med. Exam’rs, Docket No. 99-ALJ-11-0449-AP (S.C. Admin. Law Judge Div. May 26, 2000); Adler v. S.C. Dep’t of Labor, Licensing &
Regulation, State Bd. of Med. Exam’rs, Docket No. 01-ALJ-11-0523-AP (S.C. Admin. Law Judge
Div. Jan. 29, 2002), this tribunal finds Appellant’s prior conduct to have been reprehensible.
Nevertheless, unless and until the Board takes new action to revoke, suspend, or otherwise limit
Appellant’s license to practice medicine, it is required under the purely ministerial provisions of
Section 40-47-410 to re-register Appellant’s license upon his submission of the requisite application
and fee.
In conclusion, the ministerial act of re-registration must not be obfuscated by and intertwined
with the separate and substantive disciplinary matter pending on remand before the Board. The sole
question presented in this case is whether the Board was required to re-register Appellant’s medical
license. Here, as the Board’s prior actions revoking Appellant’s license have been vacated and
reversed, and as the Board has not, to date, taken further action against Appellant’s license, there is
no extant legal impediment to the Board’s re-registration of Appellant’s medical license.
ORDER
Based upon the foregoing discussion,
IT IS HEREBY ORDERED that the Board’s decision to deny Appellant’s application for
the re-registration of his medical license is REVERSED.
IT IS FURTHER ORDERED that, upon Appellant’s re-submission of his re-registration
application and fee, the Board must ISSUE a re-registration certificate to Appellant for his license,
unless, at the time of the application, the Board has taken further action against Appellant such that
he is no longer authorized to practice medicine.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
September 23, 2003
Columbia, South Carolina |
