SC Administrative Law Court Decisions

This case comes before me upon issuance of an Order of Remand from the Board of the South Carolina Department of Health and Environmental Control ("DHEC") with instructions to conduct a contested case hearing. DHEC, alleging Petitioner Rodney Hames ("Hames") committed certain acts of misconduct relating to the treatment of a patient in his care, seeks suspension of Petitioner's emergency medical technician ("EMT") certificate. The contested case hearing on the merits was conducted on May 8, 1997, at the Administrative Law Judge Division ("ALJD") in Columbia. Based upon the applicable law and the weight of the relevant and probative evidence presented, Hames' actions do not constitute misconduct. The complaint against him is dismissed.

There are several factual inconsistencies in the present case. Each of the parties presented relevant and probative evidence to support its version of the facts. Because the record contains evidence to support either party's position, the Court must assess the credibility of the witnesses, resolve contradictory testimony, and weigh the testimony and other relevant, probative evidence.

Upon weighing the evidence, this tribunal must apply the applicable statutory and regulatory provisions and appropriate standard of proof.

Besides disputing certain key facts in this case, the parties also assert conflicting legal positions on several matters of law at issue. Hames and DHEC disagree about which agency document is controlling in setting forth the actual statement and notice of allegations against Hames and upon what specific grounds the agency's proposed action is based. The parties also disagree on the proper standard of proof which must be applied.

Hames and DHEC differ as to which specific factual allegations and misconduct charges have been asserted against Hames. DHEC claims that the controlling notice and statement of allegations against Hames are set forth in the agency's July 12, 1995 initial complaint or suspension letter. Hames maintains that DHEC is restricted to presenting evidence of only those allegations and charges set forth in its Prehearing Statement. Even though Hames does not dispute that he received the initial complaint, he claims surprise and unfair prejudice at the contested case hearing by the State's assertion of misconduct in regard to certain aspects of his treatment of the patient in question.

The right of an accused to be fully informed of the offense charged against him is among the fundamental due process rights essential to a fair trial. Hames asserts that it is a denial of due process to hold him responsible for allegations not specifically made. The offense with which a party is charged should be specified so plainly and substantially as to enable the accused to understand the nature of the offense charged and to allow him to be prepared to meet the charge at the proper time. Warrants which are vague, indefinite and uncertain do not fully inform the accused of the nature and the cause of the accusation and are in violation of Article 1, § 18, of the South Carolina State Constitution. State v. Randolph, 239 S.C. 79, 121 S.E.2d 349 (1961); McConnell v. Kennedy, 29 S.C. 180, 7 S.E. 76, 80 (1888).

To commence an action to suspend, restrict, or revoke EMT certification, DHEC must give notice to the subject EMT of the proposed action by filing an initial complaint, specifying the alleged grounds therefor and affording the certificate holder of an opportunity to be heard and answer thereto. S.C. Code Ann. § 44-61-70 (Supp. 1996); 24 S.C. Code Ann. Regs. 61-7, § X(A) (1976). "The initial complaint shall be in the form of a brief statement, dated, and signed by the person making the complaint, which shall identify the person who is the subject of the complaint and contain a summary as to the nature of the complaint." 24 S.C. Code Ann. Regs. 61-7, § X(A)(1) (1976). In the present case, DHEC informed Hames in a letter dated July 12, 1995, that his EMS certification was being suspended for eighteen (18) months because of inappropriate actions taken during his care of a patient.

Hames claims that the allegations of misconduct for which he must answer are limited to those charges specifically cited by DHEC in its Prehearing Statement filed with the ALJD. DHEC argues persuasively, however, that the Prehearing Statement is not a formal pleading and that the grounds for the disciplinary action against Hames are those set forth in the initial complaint, referred to by DHEC counsel as the suspension letter, mailed to Hames on July 12, 1995.

DHEC's argument presents a problem for the Court in that the July 12, 1995 initial complaint is not in the record. Without the document in the record, this Court is unable to determine the specific factual allegations against Hames. DHEC failed to introduce the suspension letter as an exhibit at the hearing, even upon specific inquiry by the Court. It was not filed with the agency transmittal form which transferred jurisdiction of the case to the ALJD, nor was it prefiled as an exhibit prior to the hearing. In the absence of the initial complaint in the record, the court has no choice but to look to the Prehearing Statement as the agency's allegation of charges. DHEC's Prehearing Statement, filed August 22, 1995, sets forth the following summary of facts:

In a letter dated July 12, 1995, Rodney Hames was notified by the Emergency Medical Services Division ("EMS") that his EMS certification was being suspended for eighteen (18) months because of his inappropriate actions taken during the care of a patient. The EMS Division felt the Petitioner acted irresponsibly in his care of a patient who was in acute respiratory distress with pulmonary edema present. The Petitioner was crew chief on this call and his level of training was such that he should not have acted in the manner in which he did. The patient was laid in a supine position which was contraindicated for someone in respiratory distress with signs of pulmonary edema. The IV initiated by the Petitioner also contraindicated that which would "normally be used for a patient with signs of pulmonary edema. The IV of Normal Saline at 125 cc/hour could have been detrimental to conditions such as the one suffered by the patient in this case. The Petitioner's actions or lack of [sic] violated Paragraph B of Section X of

Regulation 61-7 in that:

10. 'That the holder of a certificate has, by action or omission, and without mitigating circumstance, contributed to or furthered the injury or illness of a patient under his care.'

After considering the aforementioned facts, the EMS Division recommended the suspension of the Petitioner's EMS certification for eighteen (18) months. The present contested case followed that recommendation.

At the contested case hearing, DHEC presented evidence that Hames' patient treatment was inappropriate in several instances which were not specifically enumerated in its Prehearing Statement. Hames strenuously objected to any evidence relating to any assertion of misconduct not associated with those enumerated in DHEC's Prehearing Statement. Through the expert testimony of Terry Horton and Edgar D. DesChamps, III, M.D., DHEC alleges that Hames committed various additional acts or omissions which contributed to or furthered the injury or illness of the patient under his care, including certain aspects of Hames' cardiac arrest treatment.

Because nothing in the record indicates that Hames had notice of any factual allegations

or regulatory grounds for disciplinary action asserted against him other than those cited in DHEC's Prehearing Statement, he should not be held accountable for or required to defend against additional charges. Therefore, the only charges to be considered in this matter are that Hames failed to place the patient in an upright, sitting position with feet dangling, and he initiated a saline IV at 125 cc/hour rate rather than a keep vein open rate.

DHEC, as the moving party, bears the burden of proof and must prove its allegations by the applicable standard of proof. Generally, administrative contested cases are decided by the preponderance of the evidence standard. Professional license disciplinary cases, however, must be decided by clear and convincing evidence. Hames, citing Anonymous (M-156-90) v. State Bd. of Medical Examiners, ___ S.C. ___, 473 S.E.2d 870 (Ct. App. 1996), asserts that the proper standard of proof required in a paramedic disciplinary proceeding is clear and convincing

evidence. DHEC argues that the less stringent preponderance of the evidence standard must be applied.

Standard Provided in DHEC Regulation

Procedure in contested cases before the ALJD is principally governed by the Administrative Procedures Act ("APA"), the S.C. Rules of Evidence, and the ALJD Rules of Procedure. S.C. Code Ann. Regs. 61-72, promulgated prior to the creation of the ALJD, also sets forth procedures for DHEC contested case proceedings. Conflicts and inconsistencies exist between R. 61-72, the APA, and ALJD Rules. Regulation 61-72 is applicable in ALJD cases transmitted by DHEC only to the extent that the regulation is not in conflict with the APA and the ALJD Rules of Procedure.⁽¹⁾

The APA is silent as to the appropriate standard of proof in contested cases. The S.C. Rules of Evidence and ALJD Rules of Procedure are likewise silent. Without a statutory standard, agency regulations may impose a standard of proof. See National Health Corp. v. DHEC, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989); See also Anonymous (M-156-90) v. State Bd. of Medical Examiners, supra. S.C. Code Ann. Regs. 61-72, § 702(B) provides that the standard of proof required in DHEC contested case hearings is the preponderance of evidence. Absent countervailing constitutional constraints, the preponderance of evidence standard is the appropriate standard to apply in contested cases in which DHEC is the licensing agency.⁽²⁾ See National Health Corp. v. DHEC, supra.

I am of the opinion that Anonymous (M-156-90) v. State Bd. of Medical Examiners does not create a constitutional constraint to applying the preponderance of evidence standard in the present case. The reason is twofold. Anonymous does not apply here because an agency regulation, uncontradicted by any other applicable rules or statutes, provides the standard. Anonymous applies in only those situations in which the standard of proof is not specified by other provision of law. In the alternative, if the application of Anonymous is not contingent upon the absence of a regulation providing the requisite standard, the clear and convincing standard is still not the appropriate standard here, because paramedic certification is a professional license.

EMT Certification is Not a "Professional License"

Anonymous requires the application of the clear and convincing standard of proof in physician disciplinary proceedings and other professional disciplinary proceedings involving charges of a quasi-criminal nature and the threat of a significant deprivation of liberty. While DHEC seeks to temporarily deprive Hames of his ability to work as an EMT, a paramedic can not be considered a professional in the same sense as a physician. Furthermore, the charges are not clearly quasi-criminal.

Common definitions of "profession" give some guidance. "The labor and skill involved in a profession is predominantly mental or intellectual, rather than physical or manual." Black's Law Dictionary 1210 (6th ed. 1990). A "profession" is:

[a] calling requiring preparation including instruction in skills and

methods as well as in the scientific, scholarly or historical principles

underlying such skills and methods, maintaining by force of

organization or concerted opinion high standards of achievement

and conduct, and committing its members to continued study and

to a kind of work which has for its prime purpose the rendering of

a public service.

Webster's Third New International Dictionary (Merriam-Webster 1993).

Case law defining "professional" or "profession" is limited. The above dictionary definitions are often used, e.g., Georgetowne Ltd. Partnership v. Geotechnical Services, Inc., 430 N.W.2d 34, 38 (Neb. 1988). "A 'profession' is a vocation, calling, occupation, or employment involving labor, skill, education, special knowledge and compensation or profit, but the labor and skill involved is predominantly mental or intellectual, rather than physical or manual." Steinbeck v. Gerosa, 151 N.E.2d 170, 173 (N.Y. 1958). Implicit in the term "professional" is knowledge of an advanced type in a given field of science or learning gained by prolonged course of specialized instruction and study. Paterson v. Univ. of State of N.Y., 201 N.E.2d 27, 30 (N.Y. 1964).

Neither state regulation nor quality of services rendered is determinative of an occupation as professional. Simply because paramedics are regulated by the state does not make them "professional." See Toledo Park Homes v. Grant, 447 So.2d 343, 344 (Fla. Dist. Ct. App. 1984). '[P]rofessional' is not used to describe quality of services or to distinguish the highly proficient from amateurs, but rather denotes a person in a profession which requires use of education and service for one to attain competence and which calls for a high order of intelligence, skill and learning." Transportation Displays, Inc. v. City of New Orleans, La., 346 So.2d 359, 363 (La. Ct. App. 1977).

Case law giving guidance as to whether an EMT specifically is a professional is even more scarce, and often hinges on the controlling regulatory language and the purpose for which the designation is sought. Some jurisdictions have held emergency medical personnel to be professionals⁽³⁾ while others have disagreed.⁽⁴⁾

None have considered the question as a common law issue bearing on standard of proof in a disciplinary matter.

The case of Quirk v. Baltimore County, Maryland, 895 F. Supp. 773 (D.Md. 1995), which held that paramedics are not professionals for purposes of the Fair Labor Standards Act, may provide the most in-depth analysis of whether a paramedic is a professional. In Quirk, the court held that a paramedic is not a professional since a paramedic's training and work are technical in nature, a paramedic is not required to possess extensive education, and a paramedic does not have the authority to consistently exercise discretion.

While paramedics serve a vital and necessary role in the provision of health care services, a paramedic's work is primarily of a specialized, practical nature. The job title itself, "emergency medical technician" connotes a technical function. The labor and skill involved in being a paramedic is not predominantly mental or intellectual, but physical or manual. A paramedic's role is to provide emergency medical care and to transport patients to facilities where more extensive care and treatment can be rendered. The job entails an application of practical skills using a basic knowledge of medicine, rather than a scientific approach based upon extensive academic knowledge.

Paramedics have specialized skill, but that is distinguishable from professed attainment in knowledge. The training required to be a paramedic is not that of a "professional." To become an Advanced EMT in South Carolina, a candidate must complete a training program approved by DHEC, be sponsored by a licensed provider and unit medical control physician, and pass written and a practical state examinations. Paramedics are not required to have any, much less advanced, academic degree or education. In contrast, physicians must complete undergraduate and doctorate degree programs and perform internships that may take eight or more years.

"At minimum, discretion and judgment necessary to bring employee within 'professional' exemption must involve authority to make basic decisions that affect fundamental operation of enterprise in question without seeking guidance from superiors as matter of course." Hashop v. Rockwell Space Operations Co., 867 F. Supp. 1287 (S.D. Tex. 1994). Paramedics are not authorized to consistently exercise independent discretion and judgment in the performance of duty. EMTS are required to work under a physician's supervision and follow the physician's

direct orders. S.C. Code Ann. Regs. 61-7, § 802(C) provides:

All emergency medical technicians may only engage in those practices for which they have been trained in a state approved curriculum and for which the supervising physician will assume responsibility. In all cases, an EMT will perform procedures under the supervision of a physician licensed in the State of South Carolina. Means of supervision should be direct, by standing orders or by radio or telephone communications.

For the foregoing reasons, I conclude that an EMT is not a professional for purposes of this case.

According to DHEC, Hames' conduct ". . . by action or omission, and without mitigating circumstance, contributed to or furthered the injury or illness of a patient under his care," in violation of Paragraph B, Section X, of Regulation 61-7. In its Prehearing Statement, DHEC alleges Hames committed the following inappropriate acts: (a) "The patient was laid in a supine position[,] which was contraindicated for someone in respiratory distress with signs of pulmonary edema"; and (b) "The IV initiated by the Petitioner also contraindicated that which would 'normally' be used for a patient with signs of pulmonary edema. The IV of Normal Saline at 125 cc/hour could have been detrimental to conditions such as the one suffered by the patient in this case."

DHEC offered the eyewitness testimony of Patrolman Scott Smith and the expert testimony of DHEC EMS Compliance Division Manager Terry Horton and of

Edgar D. DesChamps, III, M.D., in support of its misconduct charges against Hames.

Mr. Horton's opinions and conclusions were based upon information contained in the ambulance run report and the prefiled testimony of Patrolman Scott Smith. Dr. DesChamps relied upon Horton's prefiled testimony in addition to the ambulance run report and Smith's testimony. At the hearing, Dr. DesChamps testified that he found no fault with Hames' cardiac arrest treatment, just his treatment or lack of treatment of pulmonary edema. Dr. DesChamps concluded that

Hames should have instantly treated the patient at the scene with oxygen and IV while the patient remained in a sitting position.

The classic signs of congestive heart failure and pulmonary edema and the proper steps to treat those conditions are well documented and uncontroverted. It is likewise uncontroverted that the patient experienced congestive heart failure and pulmonary edema on the night of March 29, 1995, and that he later died of cardiac arrest. Hames does not dispute that he did not keep the patient in a sitting position while in his care, as is required for a pulmonary edema patient.

Hames' failure to keep the patient in a sitting position and immediately commencing treatment with oxygen and an IV may have contributed to or furthered the injury or illness of the patient under his care. The evidence indicates that the patient was experiencing advanced stages of congestive heart failure and pulmonary edema at the time the EMS unit arrived at the scene and that cardiac arrest was imminent. Several symptoms existed, which if promptly recognized and evaluated, possibly could have been treated. Such swift evaluation and treatment may have lessened the likelihood of the patient's condition worsening; however, the patient's pulmonary edema was not timely treated, and the patient went into cardiac arrest.

If the definition of EMT misconduct were merely "conduct by action or omission which contributed to or furthered the injury or illness of a patient under his care," Mr. Hames' EMT certification may be in jeopardy. Regulation 61-7(B), Section X, however, requires DHEC to prove not only that the EMT's conduct contributed to or furthered the injury or illness of his patient, but also that no mitigating circumstance existed. There were several mitigating circumstances on the night of March 29, 1995, which exculpate Hames. DHEC failed to prove by a preponderance of the evidence that Hames' conduct, without mitigating circumstance, contributed to or furthered the injury or illness of a patient under his care," in violation of Paragraph B, Section X, of Regulation 61-7. DHEC's experts did not adequately consider all of the circumstances surrounding the incident in question in their testimony, mainly because they were not aware of all the relevant facts. In fact, Hames proved that his treatment of the patient was affected by several extenuating factors.

The evaluation and treatment of the patient were accomplished under much less than ideal conditions. Hames was given inaccurate information about the patient's location and condition by the dispatcher, and again given incorrect information about the patient's condition by onlookers at the scene. He was hampered at the emergency scene by a hostile crowd and poor lighting. He was required to attend to the patient at a location which was more than fifty yards from the ambulance and its equipment and supplies. Such delays, inconveniences and distractions allowed the patient's condition to worsen and hindered expedient examination and treatment.

The patient was experiencing congestive heart failure and pulmonary edema for quite some time prior to Hames' arrival at the scene. Patrolman Smith testified that the patient stayed in a sitting position while waiting for the ambulance. Even still, his condition continued to deteriorate. By the time Hames and his partner got to the patient, the patient was in the late stages of congestive heart failure and on the brink of cardiac arrest. He was verbally unresponsive and hypotensive.

The experts assumed that the patient was placed in a supine position and remained in that position for the duration of Hames' treatment. The evidence shows that Hames placed the patient in a supine position only to check his airway for obstruction. That action was consistent with the A-B-C procedure for initial assessment and treatment of any patient in an emergency setting, and especially for a patient who may be choking. Upon finding no airway obstruction, Hames placed the patient in a reclined position, not a completely supine position, as alleged. While an upright, sitting position may have been preferable, the patient could not be moved on the stretcher to the ambulance in such a position. The darkness at the scene and the location of the EMS crew's equipment and supplies, dictated moving the patient to the ambulance as expeditiously as possible for further treatment. The unevenness of the terrain between the patient's location and the ambulance prevented transporting him in an upright, sitting position. Under those circumstances, it was reasonable for Hames to transport the patient in a reclined position.

Even if cardiac arrest was not imminent at the time Hames began his examination and treatment of the patient, mitigating circumstances existing prior to and during Hames' care of the patient explain and justify Hames' conduct. Because of those mitigating circumstances, Hames' actions on March 29, 1995, do not constitute misconduct.

The official charges in this matter should be those specific charges contained in the initial complaint served upon Hames by DHEC; however, since the initial complaint was never introduced as part of the record in these proceedings, the charges cited in DHEC's Prehearing Statement are controlling. DHEC has the burden of proving that Hames committed the misconduct alleged by a preponderance of evidence. A DHEC regulation provides that standard of a proof in contested cases involving the Department and the regulation is uncontradicted by any other applicable rule, statute, or constitutional provision. The more stringent clear and convincing standard is applicable in only those situations in which the standard of proof is not specified by other provision of law and/or in professional licensing cases. A paramedic certificate does not require the same level of protection as a professional license.

Hames is charged by DHEC with violating Paragraph B of Section X of Regulation 61-7,

". . . by action or omission, and without mitigating circumstance, contributed to or furthered the injury or illness of a patient under his care," for allegedly laying a patient in respiratory distress with signs of pulmonary edema in a supine position and initiating an IV contraindicated for a patient with signs of pulmonary edema. DHEC failed to prove that the IV was initiated prior to the patient going into cardiac arrest. While the placement of the patient in a supine position may have contributed to or furthered his illness, Hames' actions were not without several mitigating circumstances. Considering the totality of the circumstances, Hames' conduct was reasonable and justified. DHEC did not prove by a preponderance of the evidence that Hames' conduct, without mitigating circumstance, contributed to or furthered the injury or illness of a patient under his care," in violation of Paragraph B, Section X, of Regulation 61-7.

I find, by a preponderance of the evidence, the following facts:

1. On or about March 29, 1995, Petitioner Rodney M. Hames (hereinafter "Hames") was an Advanced EMT, or "paramedic," certified by DHEC and employed by Laurens County EMS.
2. Hames has been an EMT for approximately twelve (12) years and has been certified by DHEC as an Advanced EMT since 1993.
3. Hames and his partner, Intermediate EMT Patrick Hughes, were working as an ambulance unit for Laurens County EMS on the evening of March 29, 1995, when they received a dispatch call to 102 Buice Circle, Clinton, South Carolina.
4. Hames and Hughes responded to the call and took a patient into their care and transported the patient to the hospital.
5. As the ambulance crew member with the highest level of EMT certification, Hames was crew chief on the call.
6. On July 12, 1995, DHEC notified Hames that it was commencing an action to suspend his paramedic certification for eighteen months as a result of inappropriate actions taken during the care of the patient on March 29, 1995.
7. By letter received by DHEC on July 20, 1995, Hames requested a contested case hearing and this matter was transmitted to the ALJD for a hearing.
8. Upon notice to all parties, the contested case hearing was conducted May 8, 1997.

1. The first responsibilities of patient care by an EMS are three basic life saving actions, summarized as "A-B-C."
2. "A" stands for airway. The first and most important action is to insure that the patient has a patent and functional airway free of obstructions.

1. "B" stands for breathing. Once a patent airway is provided, the EMT must determine whether the patient has adequate respiratory effort and ventilation. If either is inadequate, the EMT must supplement the patient's efforts in whole or in part.
2. "C" stands for circulation. Once a patient's airway and breathing are secured, attention is turned to the circulatory system. Adequacy of cardiac function is assessed by pulse rate and quality, central and peripheral circulation markers, skin color and temperature, central organ function (i.e. mental status and urine output), and blood pressure.
3. Once the "A-B-C" assessment and treatment is completed, secondary interventions may be performed.
4. EMS personnel for the Laurens County Department of Emergency Medical Services are required to follow the Patient Care Treatment Protocols and Standing Orders endorsed by Laurens County EMS Medical Director Gail Bundow, M.D.
5. Protocol C-10 of the Laurens County Department of EMS Patient Care Treatment Protocols (contained in Attachment 2B of Respondent's Exhibit #2), sets forth the appropriate procedures for treatment of congestive heart failure.
6. Protocol C-6 of the Laurens County Department of EMS Patient Care and Treatment Protocols and Standing Orders provide the treatment steps to be taken for a patient in cardiac arrest.

1. Congestive heart failure is generally defined as the inability of the heart to supply sufficient oxygenated blood for the metabolic needs of the body. It occurs when either the left or right ventricle of the heart can not pump powerfully enough or fast enough to empty its chamber; as a result, blood backs up into the systemic or pulmonary circuit or both.
2. In "left heart" failure, the right side of the heart continues to pump relatively normally and to deliver normal volumes of blood to the pulmonary circulation, but the left side of the heart may no longer be able to pump out the blood being delivered from the pulmonary vessels. As a result, blood backs up behind the left ventricle, and the pressure in the left atrium and pulmonary veins increases. As the pulmonary veins become engorged with blood, serum is forced out of the capillaries into the alveoli where it mixes with air to produce foam or pulmonary edema.
3. Pulmonary edema may be caused by conditions other than congestive heart failure, such as a pulmonary embolism.
4. When fluid occupies the alveoli, oxygenation of the blood is impaired.
5. Symptoms of pulmonary edema may include: elevated blood pressure; distended neck veins; shortness of breath (dyspnea), particularly in the recumbent position (orthopnea); Cheyne stokes respirations (a very irregular pattern of labored breathing); an increased respiratory rate (tachypnea); cyanosis; wheezing; rales, coughing up of foamy, blood-tinged sputum; sweating; confusion; extreme restlessness.
6. Prehospital treatment of left heart failure is aimed at improving oxygenation and decreasing the workload of the heart, chiefly by reducing the volume of venous blood returned to the heart.
7. A patient experiencing acute pulmonary edema should be in a seated, upright position with feet dangling.
8. A patient experiencing acute pulmonary edema should be administered 100% pure oxygen, preferably by demand valve with positive pressure.
9. A patient experiencing acute pulmonary edema should also be given an IV at a "keep open" rate only.
10. Nitroglycerin and diuretic Furosemide, also known as Lasix, should also be administered to the patient, and morphine may also be administered by order of a physician.
11. If hypoxemia (a state of a lack of oxygen) is severe during pulmonary edema, cardiac arrest may follow quickly.

1. A cardiac patient's EKG rhythm should be continuously monitored and determined.
2. Cardiac arrest occurs when the heart stops beating.
3. The treatment of cardiac arrest takes precedence over the treatment of pulmonary edema
4. Upon a patient going into pulseless electric activity (PEA), 1 mg of epinephrine should be initially administered.
5. When a patient goes into asystole, 1 mg of epinephrine and 1 mg of atropine should be administered.
6. When a patient goes into PEA and then into ventricular fibrillation, patient should be defibrillated using paddles at earliest convenience at 200 joules, then 300 joules, then 360 joules, then administered lidocaine, if necessary.

1. On the evening of March 29, 1995, Clinton Police Patrolman Scott Smith responded to a call to 102 Buice Circle, Clinton, South Carolina.
2. Upon arriving at 102 Buice Circle, Patrolman Smith encountered a group of people surrounding a man later identified as Claude Shelton.
3. Mr. Shelton was located in a poorly paved and dimly lit alleyway.
4. Onlookers told Patrolman Smith that Mr. Shelton was having trouble breathing and that they were unsure whether he had taken his diabetes medication.
5. Patrolman Smith observed that Mr. Shelton was standing beside a truck, bent over, with foam-like substance coming from his mouth. His shirt was wet and a gurgling noise was coming from his mouth and throat.
6. Mr. Shelton was unable to verbally respond to Patrolman Smith's questions and exhibited signs of confusion, but was able to breath and had a strong pulse.
7. Mr. Shelton could not lie down without choking, but he did sit down in an upright position.
8. After some indeterminant amount of time, an EMS unit arrived at the scene.
9. The ambulance and crew arrived at 102 Buice Circle, at or about 9:00 p.m.
10. Rodney N. Hames and Patrick Hughes were the crew members of that EMS unit.
11. Hames and Hughes were delayed in arriving at the scene because of initially receiving inaccurate and unclear information concerning the address and location of the patient in distress.
12. Hames and Hughes were also given inaccurate and conflicting information by the dispatcher concerning the nature of the patient's symptoms, history, and possible diagnoses.
13. Upon arrival, Hames and Hughes were able to park the ambulance no closer than fifty (50) to (75) yards from the patient.
14. Hames and Hughes were met by Patrolman Smith as they got out of the ambulance, who informed them that the patient, Mr. Shelton, was having trouble breathing, was foaming at the mouth, and that the patient's family thought that he was possibly experiencing some type of diabetic reaction to sugar.



15. Hames and his partner were obstructed in their access to the patient by an uncooperative and unruly crowd of bystanders who were angry that the ambulance had taken so long to arrive.
16. Hames and Hughes unloaded equipment and pushed through the crowd of onlookers to get to the patient.
17. The patient was being supported by persons who told Hames and Hughes that the patient was choking.
18. Upon reaching the patient, Hames began to examine the patient and Hughes prepared to administer oxygen.
19. During Hames' examination of the patient, Patrolman Smith held a flashlight to provide lighting.
20. The patient was in obvious respiratory distress and was drooling at the mouth.
21. There was no sign of blood in the sputum coming from the patient's mouth.
22. The patient made no verbal responses to questions, responding only to deep painful stimuli.
23. In order to check the patient's airway, Hames momentarily laid the patient down in a supine position.
24. Hames checked the patient's mouth and throat for an airway obstruction, but found none.
25. Hames next placed an oxygen mask on the patient and ordered Hughes to get the stretcher for the ambulance.
26. The EMTs next checked the patient's blood pressure and heart rate.
27. To get the patient to an area with better lighting to facilitate treatment, and to more quickly transport the patient to the hospital, it was necessary to move the patient to the ambulance.
28. When Hughes returned with the stretcher, the patient was placed on and strapped to the stretcher in a reclining, semi-Fowler's position and taken to the ambulance.
29. Because of uneven terrain, the patient could not have been transported to the ambulance in a sitting position without the stretcher tipping over.
30. Placement of the patient in a reclining position for transport to the ambulance was reasonable.



31. Once the patient was in the ambulance, Hames and Hughes checked his vital signs and found his pulse to be dropping, blood pressure low, and respiration shallow.
32. Patient became increasingly unresponsive and cyanotic.
33. Patient's respiration stopped and patient went into cardiac arrest.
34. Patient was then intubated with a #8E tube, and a saline IV was initiated at a 125cc/hour rate and administered oxygen by bag valve.
35. The ambulance was not equipped with an oxygen demand valve.
36. Upon patient going into pulseless electric activity (PEA), Hames administered 3 mg of epinephrine.
37. When patient went into asystole, Hames administered 2 mg of atropine and then another 1 mg of atropine.
38. Upon patient going into PEA and then into ventricular fibrillation, patient was defibrillated using paddles at 200 joules, then 300 joules, then administered lidocaine, rather than defibrillated at 200 joules, 300 joules, and then 360 joules.
39. Because care of the patient required two EMTs, Hughes radioed for back-up.
40. William Alton Wilson, Captain of Laurens County EMS and the crew's supervisor, arrived on the scene in response to the call for back-up.
41. Captain Wilson drove the ambulance to the Laurens County Hospital while Hames and Hughes cared for the patient in the rear compartment.
42. The total time that Hames and Hughes were on the scene, from arrival until departure to the hospital, was approximately eighteen (18) minutes.
43. The ambulance unit arrived at the emergency room of Laurens County hospital at approximately 9:26 p.m., at which time the patient was placed in physician care.
44. The patient later died.

1. It is unclear as to how long the patient had been suffering from pulmonary edema prior to Hames' arrival.
2. The lighting at the scene made visual observation of the patient extremely difficult.





3. Hames had to follow the proper A-B-C assessment and treatment plan in his initial evaluation of the patient before taking other treatment measures related to the patient's pulmonary edema problems.
4. Laying a patient with signs of pulmonary edema in a supine position to determine if the patient's airway was clear may unintentionally contribute to or further the illness of the patient.
5. Under the conditions, laying of the patient in the supine position to attempt to determine if the patient's airway was obstructed was a reasonable act.
6. The placement of the patient in a reclining, semi-Fowler's position for transportation by stretcher over rough terrain to the ambulance was reasonable.
7. The patient went into cardiac arrest before Hames could complete his initial evaluation of the patient, minutes after Hames arrived on the scene.
8. The IV of Normal Saline at 125 cc/hour initiated after the patient went into cardiac arrest was not unreasonable treatment for a patient in cardiac arrest.
9. The IV of Normal Saline at 125 cc/hour initiated by Hames did not contribute to or further the injury or illness of the patient.
10. In hindsight, the ideal course of treatment that Hames could have undertaken would have been to place the patient in a seated, upright position with feet dangling, administer 100% pure oxygen by demand valve with positive pressure, and commence an IV at a "keep open" rate only, while monitoring the patient's vital signs; however, the conditions at the scene were far from ideal.
11. Hames acted with all deliberate speed and care in his treatment of the patient.
12. Hames was hindered by the following mitigating circumstances in properly assessing and treating the patient's congestive heart failure and pulmonary edema conditions: delayed arrival at the scene because of inaccurate directions from the dispatcher; the advanced stage of the patient's condition; poor lighting at the scene; noise and confusion at the scene by a hostile and unruly crowd; inability to park the ambulance close to the patient; incorrect information that the patient was choking or suffering a diabetic seizure; the need to lay the patient in a supine position to check for an airway obstruction; inability to adequately treat patient at the scene; need to move the patient on the stretcher to the ambulance over rough terrain; lack of an oxygen demand valve in the ambulance; the patient's going into cardiac arrest within minutes of Hames arriving at the scene; the need to treat the patient's cardiac arrest; and the need to quickly transport the patient to the hospital.
13. Hames reasonably performed appropriate cardiac arrest treatment.

91. DHEC's expert witnesses based their conclusions, that Hames acted improperly, without mitigating circumstance, upon inaccurate or incomplete facts.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact and Discussion, I conclude as a matter of law:

1. The Administrative Law Judge Division has jurisdiction in this matter pursuant to S.C. Code Ann. §§ 44-61-70 (1976 & Supp. 1996) and 1-23-600(B) (Supp. 1995) and S.C. Code Ann. Regs. 61-72, §§ 501 & 502.
2. S.C. Code Ann. §§ 44-61-70 and 44-61-80 (1976 & Supp. 1996) provide for the training, certification, supervision, and discipline of EMTs and authorize DHEC to administer the emergency medical services (EMS) program.
3. S.C. Code Ann. § 44-61-130 (1976) sets forth the authority and functions of a duly certified EMT.
4. S.C. Code Ann. § 44-61-30 (Supp. 1996) authorizes DHEC to develop standards and prescribe regulations for the administration of the state EMS program.
5. 24 S.C. Code Ann. Regs. 61-7, §§ VIII, IX, and X (1976) provide the regulatory framework for EMT training, certification, personnel requirements, standards of conduct, and certification revocation and suspension procedures.
6. An EMT certificate may be revoked, suspended, or restricted upon a satisfactory showing of misconduct of the EMT, as defined by 24 S.C. Code Ann. Regs. 61-7, § X(B) (1976) .
7. The DHEC Division of Emergency Medical Services shall, upon receiving a complaint of EMT misconduct, initiate an investigation. Upon determination that suitable cause exists, DHEC shall commence an action to suspend, restrict, or revoke certification. DHEC must give notice to the subject EMT of the proposed action by filing an initial complaint, specifying the alleged grounds therefor and affording the certificate holder of an opportunity to be heard and answer thereto. S.C. Code Ann. § 44-61-70 (Supp. 1996); 24 S.C. Code Ann. Regs. 61-7, § X(A)(1976).
8. EMT misconduct includes, by action or omission, and without mitigating circumstance, the contribution to or furtherance of the injury or illness of a patient under the EMT's care. S.C. Code Ann. Regs. 61-7, § X(B)(10).
9. Rodney N. Hames is charged by DHEC with violating Paragraph B of Section X of Regulation 61-7 in that he, . . . "the holder of a certificate has, by action or omission, and without mitigating circumstance, contributed to or furthered the injury or illness of a patient under his care." Respondent's Prehearing Statement at 2.
10. "The suspension or revocation of the emergency medical technician certificate shall include all levels of certification." S.C. Code Ann. Regs. 61-7, § X(C).

1. It is improper to find a licensee guilty of misconduct not alleged in the complaint. Wilson v. State Bd. of Medical Examiners, 305 S.C. 194, 406 S.E.2d 345 (1991); Burdge v. State Bd. of Medical Examiners, 304 S.C. 32, 403 S.E.2d 114 (1991).
2. It is a denial of due process in an administrative proceeding to hold a licensee responsible for allegations not specifically made. Burdge v. State Bd. of Med. Examiners, 304 S.C. 32, 403 S.E.2d 114 (1991).
3. The right of an accused to be fully informed of the offense charged against him is among the fundamental due process rights essential to a fair trial. The offense with which a party is charged should be specified so plainly and substantially as to enable the accused to understand the nature of the offense charged and to allow him to be prepared to meet the charge at the proper time. Warrants which are vague, indefinite and uncertain do not fully inform the accused of the nature and the cause of the accusation, and are in violation of Article 1, § 18, of the South Carolina State Constitution. State v. Randolph, 239 S.C. 79, 121 S.E.2d 349 (1961); McConnell v. Kennedy, 29 S.C. 180, 7 S.E. 76 (1888).
4. "The initial complaint shall be in the form of a brief statement, dated, and signed by the person making the complaint, which shall identify the person who is the subject of the complaint and contain a summary as to the nature of the complaint." 24 S.C. Code Ann. Regs. 61-7, § X(A)(1) (1976).
5. In the absence of the initial complaint in the record, the court must rely upon DHEC's Prehearing Statement to determine the agency's allegation of charges in this case.
6. DHEC's Prehearing Statement, filed August 22, 1995, sets forth the following summary of the charges against Hames:

In a letter dated July 12, 1995, Rodney Hames was notified by the Emergency Medical Services Division ("EMS") that his EMS certification was being suspended for eighteen (18) months because of his inappropriate actions taken during the care of a patient. The EMS Division felt the Petitioner acted irresponsibly in his care of a patient who was in acute respiratory distress with pulmonary edema present. The Petitioner was crew chief on this call and his level of training was such that he should not have acted in the manner in which he did. The patient was laid in a supine position which was contraindicated for someone in respiratory distress with signs of pulmonary edema. The IV initiated by the Petitioner also contraindicated that which would "normally be used for a patient with signs of pulmonary edema. The IV of Normal Saline at 125 cc/hour could have been detrimental to conditions such as the one suffered by the patient in this case. The Petitioner's actions or lack of violated Paragraph B of Section X of Regulation 61-7 in that:

10. 'That the holder of a certificate has, by action or omission, and without mitigating circumstance, contributed to or furthered the injury or illness of a patient under his care.'

1. DHEC, as the moving party, bears the burden of proof and must prove its allegations by the applicable standard of proof.
2. Neither the APA nor the rules of evidence dictates a standard of proof in this matter. Anonymous (M-156-90) v. State Bd. of Medical Examiners, ___ S.C. ___, 473 S.E.2d 870 (Ct. App. 1996).



3. The ALJD Rules of Procedure do not provide a standard of proof for contested cases.
4. Without a statutory standard, agency regulations may impose a standard of proof. See National Health Corp. v. DHEC, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989); See also Anonymous (M-156-90) v. State Bd. of Medical Examiners, ___ S.C. ___, 473 S.E.2d 870 (Ct. App. 1996).
5. S.C. Code Ann. Regs. 61-72, § 702(B) provides that the standard of proof required in DHEC contested case hearings is the preponderance of evidence.
6. S.C. Code Ann. Regs. 61-72, § 702(B) does not conflict with the APA, ALJD Rules of Procedure, S.C. Rules of Evidence, or any other applicable provision of law.
7. Absent countervailing constitutional constraints, the preponderance of evidence standard is the appropriate standard to apply in contested cases in which DHEC is the licensing agency. See National Health Corp. v. DHEC, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989); See also Medstar Ambulance Service, Inc. v. DHEC, Docket No. 96-ALJ-07-0498-CC (Order dated May 6, 1997).
8. The proper standard of proof in a professional disciplinary action against a physician is clear and convincing evidence. Anonymous (M-156-90) v. State Bd. of Medical Examiners, ___ S.C. ___, 473 S.E.2d 870 (Ct. App. 1996) [citing Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. Dist. Ct. App. 1983)].
9. Because a paramedic's training and work are technical in nature and a paramedic is not required to possess extensive education and does not have the authority to consistently exercise discretion, a paramedic is not considered a "professional." Quirk v. Baltimore County, Md., 895 F. Supp. 773 (D.Md. 1995).

1. It is an essential element of the legislatively designed administrative regulatory scheme for disciplinary proceedings that all factors relevant to continued licensure must be scrupulously considered. The public interest and the need for the continued services of qualified medical personnel must be meticulously weighed against the countervailing concern that society be protected from professional ineptitude. Wilson v. State Bd. of Medical Examiners, 305 S.C. 194, 406 S.E.2d 345 (1991).



2. The trial judge must judge the witnesses' demeanor and veracity. Contradictions of witnesses by others are for solution by the trial judge as fact finder. The fact finder must pass upon the credibility of the witnesses and give such weight to the testimony and all parts of it as in its judgment is deserved. Woodall v. Woodall, ___ S.C. ___, 471 S.E.2d 154 (1996); Arkwright Mills v. Clearwater Mfg. Co., 217 S.C. 530, 61 S.E.2d 165 (1950); Cammer v. Atlantic Coast Line R. Co., 214 S.C. 71, 51 S.E.2d 174 (1948).
3. The initiation of an IV of Normal Saline at 125 cc/hour, as initiated by Hames, was not an action or omission, without mitigating circumstance, which contributed to or furthered the injury or illness of the patient under his care.
4. The laying of the patient in the supine position to attempt to determine if the patient's airway was obstructed was a reasonable act.
5. The lack of blood in the sputum coming from the patient's mouth was a mitigating circumstance.
6. The lack of adequate lighting at the scene is a mitigating circumstance.
7. The laying of the patient in the supine position to attempt to determine if the patient's airway was obstructed, as performed by Hames during his initial treatment of the patient, was not an action or omission, without mitigating circumstance, which contributed to or furthered the injury or illness of the patient under his care.
8. The placement of the patient in a reclining, semi-Fowler's position for transportation by stretcher over rough terrain to the ambulance was reasonable.
9. The presence of a large unruly crowd of bystanders at the scene is a mitigating circumstance.
10. The statements made to Hames that the patient was choking was a mitigating circumstance.
11. The fact that Hames had to follow the proper A-B-C assessment and treatment plan in his initial evaluation of the patient before taking other treatment measures related to the patient's pulmonary edema problems is a mitigating circumstance.
12. The fact that the patient went into cardiac arrest minutes after Hames arrived on the scene is a mitigating circumstance.
13. The fact that the patient went into cardiac arrest before Hames could complete his initial evaluation of the patient is a mitigating circumstance.
14. Although the evidence is in dispute, and the possibility exists of drawing two inconsistent conclusions, the greater weight of the evidence does not support DHEC's charges of misconduct against Hames. The record contains relevant and credible evidence which, when weighed in its totality, does not lead to the conclusion that Hames committed an act of misconduct. See Wilson v. State Bd. of Medical Examiners, 305 S.C. 194, 406 S.E.2d 345(1991); See also Boggs v. State Bd. of Medical Examiners, 288 S.C. 144, 146, 341 S.E.2d 635, 636 (1986).

For the foregoing reasons, I find and conclude that Rodney N. Hames did not commit misconduct in the performance of his EMT duties on the night of March 29, 1995.

IT IS THEREFORE ORDERED that the charges against him in this matter be dismissed.

_____________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

August 14, 1997

Columbia, South Carolina

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1. The ALJD was established as an autonomous governmental entity to conduct and render decisions in contested case hearings involving other state agencies. See generally S.C. Code Ann. § 1-23-500, et seq. (Supp. 1996). The General Assembly vested the Administrative Law Judge Division with the authority to promulgate its own rules of practice and procedure. S.C. Code Ann. § 1-23-650 (Supp. 1996). The primary rule of statutory construction is to ascertain the intention of the legislature. First South Savings Bank, Inc. v. Gold Coast Assocs., 301 S.C. 158, 390 S.E.2d 486 (Ct. App. 1990). By creating the ALJD, authorizing the ALJD to adopt its own contested case procedures, and putting DHEC contested cases within the ALJD's jurisdiction, the legislature intended the ALJD Rules of Procedure to supersede conflicting procedural regulations previously promulgated by DHEC.

2. The applicability of R. 61-72 was not an issue in Anonymous (M-156-90) v. State Bd. of Medical Examiners, ___ S.C. ___, 473 S.E.2d 870 (Ct. App. 1996), which involved a licensing matter originally heard by the Board of Medical Examiners. The Board of Medical Examiners, nor its new parent agency, the Department of Labor, Licensing and Regulation, has a rule or regulation dictating a standard of proof in a contested case matter.

3. See, e.g.: Professional Firefighters of Fla. v. Dept. of Health and Rehabilitative Services, 396 So. 1194 (Fla. 1981) (paramedics had standing to challenge new regulation that would require certification, as "occupation or profession" not previously subject to regulation); Heck v. Robey, 630 N.E.2d 1361 (Ind. Ct. App. 1994) (paramedic was "public safety professional" under Indiana's "fireman's rule" exception to the rescue doctrine).

4. See, e.g.: Natsch v. City of Southfield, 397 N.W.2d 294 (Mich. Ct. App. 1986) (EMTs are members of a "health occupation" and not "state licensed health professionals," as statutorily defined); Hidalgo v. Wilson Cert. Exp., Inc., 676 So.2d 114 (La. Ct. App. 1996) (ambulance driver not a professional under state medical malpractice act); Quirk v. Baltimore County, Md., 895 F. Supp. 773 (D.Md. 1995) (paramedics not considered "professionals" for purposes of determining whether county was exempt from overtime requirements of Fair Labor Standards Act); Blamires v. Bd. of Review of Dep't of Employment Sec. of Indus. Comm'n, 584 P.2d 889 (Utah 1978) (EMT not independently established trade, occupation or profession for determining elements of "employment").