SC Administrative Law Court Decisions

This matter comes before me upon a Petition for Injunctive Relief filed by Petitioner

Anonymous Physician. Petitioner seeks an order from this tribunal superseding an Order of

Temporary Suspension issued by the Board of Medical Examiners (the Board) on July 31, 2001. The

Order temporarily suspends Petitioner's license to practice medicine "pending a hearing into the

matter and until further Order of the Board." An emergency hearing on the Petition for Injunctive Relief was conducted at the Administrative Law Judge Division on August 2, 2001. At the conclusion of the hearing, this tribunal issued an oral ruling from the bench superseding the Board's Order of Temporary Suspension.

The jurisdiction of an Administrative Law Judge over decisions of the Board is appellate

jurisdiction. In exercising appellate jurisdiction, an Administrative Law Judge may review an

interlocutory order where "review of the final agency decision would not provide an adequate remedy." S.C. Code Ann. § 1-23-380(a) (Supp. 2000). I find that appellate review of the Board's final decision in this disciplinary action would not provide Petitioner an adequate remedy for the temporary suspension of his license pending the Board's hearing on the merits. Therefore, this tribunal has jurisdiction to review and correct the Board's July 31, 2001 Order.

The Board relies on S.C. Code Ann. § 1-23-370(c) (Rev. 1986) as authority for its issuance

of the Order of Temporary Suspension. Section 1-23-370(c) provides in pertinent part:

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. These proceedings shall be promptly instituted and determined.

The Board incorporated into its Order an affidavit from Special Investigator Cheryl C. McNair. Ms. McNair's affidavit indicated that she reviewed documents reflecting that Petitioner was arrested and charged with various driving offenses involving alcohol on four different occasions since January, 1996, the latest arrest being on or about July 14, 2001. Ms. McNair's affidavit further stated that these documents indicate an immediate danger to the welfare and safety of the public. At the emergency hearing before this tribunal, the Board argued that the documents reviewed by Ms. McNair gave the Board reason to believe that Petitioner might be suffering from a substance abuse problem. The Board, however, presented no competent evidence of any such problem. The only purported evidence presented was the affidavit from Ms. McNair. However, the Board presented no evidence that any of the arrests or charges involving alcohol, as set forth in Ms. McNair's affidavit, resulted in any convictions. ⁽¹⁾ Therefore, I find Ms. McNair's affidavit to have no probative value.

In conclusion, there is no evidence before me which supports the Board's finding that the public welfare requires the summary suspension of Petitioner's license. Therefore, I find it unnecessary to address the issue of whether S.C. Code Ann. § 1-23-370(c) (Supp. 2000) gives the Board the authority to summarily suspend the license of a physician without a hearing.

Petitioner's request for an order superseding the July 31, 2001 Order of Temporary

Suspension is hereby granted, nunc pro tunc as of August 2, 2001.

IT IS THEREFORE ORDERED that the Petition for Injunctive Relief is granted.

IT IS FURTHER ORDERED that this matter is remanded to the Board for scheduling of

further proceedings.

AND IT IS SO ORDERED.

__________________________________

C. Dukes Scott

Administrative Law Judge

August 3, 2001

Columbia, South Carolina

1. Petitioner's attorney submitted to the Division the affidavit of Stephen Carter, the attorney who has been representing Petitioner on the charges in question. Mr. Carter's affidavit states the status of these charges as follows:

-- the January 27, 1996 charge of Driving Under the Influence was dismissed for lack of sufficient evidence;

-- the December 1, 2000 charges of Leaving the Scene of an Accident, Open Container, and Driving Left of Center are scheduled for trial before a Magistrate on August 15, 2001;

-- the March 31, 2001 charge of Driving Under the Influence was dismissed by the charging officer for lack of evidence. The Physician pled guilty to a charge of reckless operation;

- the May 3, 2001 charge for No Driver License in Possession was dismissed on the ground that the underlying suspension was improperly entered.

-- the July 20, 2001 charges of Driving Under the Influence, Open Container, and No Driver's License in Possession are still pending.

The affidavit further states that the same highway patrolman is responsible for arresting and charging the Physician with all of the pending charges. Finally, the affidavit states that Ms. McNair was aware that the charges for driving under the influence had been dismissed.