ORDERS:
FINAL ORDER
This matter is before the Administrative Law Judge Division ("Division") pursuant to the Motion for Injunctive Relief and
Expedited Hearing filed by the Petitioner, Anonymous Physician (M-2-96) ("Petitioner"), on October 3, 2002. Petitioner
seeks an order enjoining the State Board of Medical Examiners ("Board") from proceeding to hearing before its
Disciplinary Panel on October 30 and 31, 2002 and compelling the Board to provide discovery and other information. A
hearing on the Motion was held at the offices of the Division in Columbia, South Carolina, on October 15, 2002.
STATEMENT OF THE CASE
Petitioner is a physician practicing medicine in South Carolina. The Board filed a complaint charging Petitioner with
violating the Medical Practice Laws of South Carolina. Petitioner served the Board with various pre-hearing discovery
requests, including Interrogatories and Requests to Produce, and motions to obtain other information, including Motion for
Disclosure of Documentary Evidence, Motion for Disclosure of Witness Statement, Motion for Disclosure of Any
Exculpatory Evidence, and Request Pursuant to S.C. Code Ann. § 40-47-212 (Law. Co-op. & Supp. 2000). After receiving
no response, Petitioner served the Board with a Motion to Compel Discovery and a subsequent Motion to Compel
Discovery and for Expedited Hearing on Outstanding Motions. The Board issued an order providing that Petitioner be
given a copy of the initial complaint and denying Petitioner's remaining motions. The Board noted in its order that counsel
for the State had offered to provide Petitioner with documents to be used at the hearing and to exchange witness lists.
The Board notified Petitioner on September 16, 2002 that the disciplinary hearing would take place on October 30 and 31,
2002. On September 18, 2002, Petitioner requested a continuance of the hearing due to a notice Petitioner's lead counsel,
Mr. Lewis, had received of a status conference to be held on October 29, 2002 in the United States District Court for the
District of Hawaii on outstanding motions in another case. Petitioner notified the Board that, due to the distance and length
of travel, Mr. Lewis would not arrive back in Columbia until October 31, 2002. By letter dated September 25, 2002, the
Board denied Petitioner's request for a continuance, noting that the disciplinary hearing had been previously continued
three times, twice at the request of Mr. Lewis due to other court appearances. The Board suggested that either Ms. Crowe,
Petitioner's former counsel, or Mr. Protopapas, Mr. Lewis's associate, could handle the hearing before the Board.
Petitioner now seeks an order from this tribunal enjoining the Board from proceeding with the disciplinary hearing on
October 30 and 31, 2002. Petitioner further requests that this tribunal order the Board to provide the information sought in
Petitioner's discovery requests and other motions.
DISCUSSION
The Division has appellate jurisdiction to review final decisions of contested cases before professional and occupational
licensing boards or commissions within the Department of Labor, Licensing, and Regulation. S.C. Code Ann. § 1-23-600(D) (Law. Co-op. Supp. 2000). The Division's appellate review is conducted pursuant to S.C. Code Ann. § 1-23-380(A). Id. That section authorizes the Division to immediately review a "preliminary, procedural, or intermediate agency
action or ruling . . . if review of the final agency decision would not provide an adequate remedy." Id. at§ 1-23-380(A)
(Law. Co-op. Supp. 2000).
Although Petitioner styled this appeal as a motion for injunctive relief, it is in essence an appeal of a letter denying a
motion for a continuance and an order denying a motion to compel discovery. An order denying a motion for a continuance
is interlocutory and not immediately appealable. Townsend v. Townsend, 323 S.C. 309, 474 S.E.2d 424 (1996). An order
denying discovery is likewise interlocutory and not immediately appealable. Hamm v. South Carolina Public Service
Commission, 312 S.C. 238, 439 S.E.2d 852 (1994); Lowndes Products, Inc. v. Bower, 262 S.C. 431, 205 S.E.2d 184
(1974). See also Palmetto Alliance, Inc. v. S.C. Pub. Serv. Comm'n, 282 S.C. 430, 319 S.E.2d 695 (1984) ("'the scope and
conduct of discovery are within the sound discretion of the trial court . . ., and . . . after final judgment of the district court
or final agency order, [the Court's] review is confined to determining if that discretion has been abused.'") (emphasis
added).
Pursuant to S.C. Code Ann. § 1-23-380(A), the Division may review an intermediate agency ruling if review of the final
agency decision would not provide an adequate remedy. However, Petitioner has made no showing as to why review of the
Board's final decision in this case will not be an adequate remedy. The Board's interlocutory action and order may be
reviewed on appeal of the Board's final decision.
Petitioner argues that the Division has jurisdiction to issue a remedial writ in this matter pursuant to Rule 65, SCRCP.
ALJD Rule 16 allows the Division to "issue remedial writs as are necessary to give effect to its jurisdiction and with
respect to injunctions shall follow the procedure in Rule 65, SCRCP." However, ALJD Rule 16 is located in Part Two of
the ALJD Rules and applies only to contested cases before the Division. It is inapplicable to this appeal. Even if Petitioner
were to argue that Rule 65, SCRCP is applicable to this matter under ALJD Rule 68, which provides that "[t]he South
Carolina Rules of Civil Procedure may, where practicable, be applied in proceedings before the Division to resolve
questions not addressed by these rules," ALJD Rule 68 is a permissive rule, not a mandatory rule. A permissive rule should
not be applied to exercise jurisdiction where a statute, S.C. Code Ann. § 1-23-380(A), specifically governs the scope of the
Division's jurisdiction.
Because Petitioner has made no showing that review of the Board's final decision in this matter will not provide an
adequate remedy, this tribunal cannot review the interlocutory action and order denying Petitioner's request for a
continuance and motions to compel discovery. If Petitioner is aggrieved by the final decision of the Board, Petitioner may
then seek appellate review before the Division. (1)
ORDER
IT IS HEREBY ORDERED that this matter is DISMISSED;
AND IT IS SO ORDERED.
___________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
October 17, 2002
Columbia, South Carolina
1. No finding is made in regard to the matters raised in Petitioner's Motion. However, if this contested case was being
heard by the undersigned, the continuance would be granted. |
