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SC Administrative Law Court Decisions

CAPTION:
Anonymous Dentist vs. SCDLLR

AGENCY:
South Carolina Department of Labor, Licensing And Regulation

PARTIES:
Petitioners:
Anonymous Dentist

Respondents:
South Carolina Department of Labor, Licensing And Regulation, State Board State Board of Dentistry

In re: Anonymous, Case No. 98-48

In re: Anonymous, Case No. 98-24
 
DOCKET NUMBER:
98-ALJ-11-0433-IJ

APPEARANCES:
n/a
 

ORDERS:

ORDER TO COMPEL

STATEMENT OF THE CASE

Petitioner seeks an Order of Mandamus to compel the Respondent State Board of Dentistry to produce copies of certain documents to his counsel. Arguments were heard on July 28, 1998 at the Administrative Law Judge Division. I conclude that issuance of a Writ of Mandamus is not necessary, but that Petitioner is entitled to receive copies of the requested documents. For the reasons set forth below, the Board is ordered to provide Petitioner with copies of the documents referenced herein.

BACKGROUND

On June 9, 1998, Petitioner was served with a subpoena issued by Respondent, bearing Case No. 98-24, to produce original patient records. In response, the original records were immediately delivered to the possession of the Board agents who served the subpoena. Through his counsel, Petitioner requested that the investigator who took the original records provide him with photocopies of the patient records taken from Petitioner's office. Upon realizing that he was under investigation, Petitioner also requested a copy of the affidavit which initiated the investigation pursuant to S.C. Code Ann. § 40-15-180(1)(1986). Petitioner's requests were refused.

On June 22, 1998, Respondent attempted to serve a second subpoena for patient records on Petitioner, bearing case number 98-48, but service was not effected. Petitioner's counsel was notified of the attempted service, and contacted the Board. The Board provided a faxed copy of the subpoena to Petitioner's counsel. Petitioner voluntarily provided the Board with a photocopy of the patient record requested in the second subpoena. Again, through counsel, Petitioner requested that he be provided with a copy of the initial complaint which initiated case number 98-48. His request was refused.

Petitioner's attorney contacted the Board Administrator, H. Rion Alvey, by mail on June 26, 1998 and again on July 6, 1998 to renew the requests for photocopies of the patient records removed from Petitioner's office on June 9, 1998 as well as copies of the initial complaints filed as required by § 40-15-180(1) in Cases No. 98-24 and 98-48. Petitioner's requests were denied.

On July 11, 1998, Petitioner filed a Petition for Writ of Mandamus with the Administrative Law Judge Division seeking to compel the Board to produce copies of the requested materials. Personal service was effected upon Respondent on July 13, 1998, as indicated by an affidavit of service on file. By letter dated July 15, 1998, Board Administrator H. Rion Alvey provided Petitioner's counsel with photocopies of the patient records removed from Petitioner's office on June 9, 1998. At the hearing held in this matter on July 28, 1998, Petitioner's counsel advised that she was withdrawing the Petition for Writ of Mandamus as to the patient records in light of the Board's partial voluntary compliance with her request for records. Although Respondent provided Petitioner with copies of the patient records, Respondent refuses to produce the initial complaints, based on several arguments.

DISCUSSION

Respondent initially argues that the Petition was not served properly because it was not served on the Board's attorneys and therefore, Petitioner's request to compel production of the initial complaints should be denied. This argument is flawed for two reasons. First, Petitioner served his Petition on Board Administrator H. Rion Alvey, an authorized agent of the Board. Second, Respondent did not even advise Petitioner of the existence of the charges, much less, the name of its counsel in this particular matter. ALJD Rule 5 provides that "[s]ervice shall be made upon counsel if the party is represented, or if there is no counsel, upon the party." In the instant case, there was no counsel of record at the time Petitioner filed his Petition. Therefore, Petitioner complied with the Division's procedural requirements when he served his Petition on the Board through its Administrator.

Next Respondent argues that service was ineffective because Petitioner failed to include proof of service as required by ALJD Rule 4(C), which provides that "[a]ny document filed with the Division shall be accompanied by proof of service of such document on all parties . . . ." The purpose of ALJD Rule 4(C) is to ensure that all parties are provided with adequate notice. There is ample proof that Respondent was provided with adequate notice of the Petition. Petitioner filed his Petition with this tribunal on July 11, 1998. At the hearing on this matter, Petitioner provided this tribunal and opposing counsel with proof of service, which established that the Board Administrator was served with the Petition on July 13, 1998, two days after filing the same with the Division. Moreover, Respondent has not alleged that it suffered any harm or prejudice as a result of Petitioner's failure to include proof of service with the Petition. Cf. S.C.R.C.P. Rule 4(g) ("[f]ailure to make proof of service does not affect the validity of service"); Roche v. Young Brothers, Inc. of Florence, 318 S.C. 207, 208, 456 S.E.2d 897, 898 (1995) ("We have never required exacting compliance with the rules to effect service of process. . . . Rather, we inquire whether the plaintiff has sufficiently complied with the rules such that the court has personal jurisdiction of the defendant and the defendant has notice of the proceedings."); Beckham v. Durant, 300 S.C. 329, 330, 387 S.E.2d 701, 702 (1989) ("Nowhere does the rule provide failure to file proof of service within the ten day period nullifies the service or extends the period of time for a defendant to answer").

Respondent also asserts that production of the initial complaints to Petitioner is prohibited by § 40-15-480(3) and (4). Subsection (3) of the statute provides that all "investigations and proceedings" undertaken by the Board pursuant to the enabling act "shall be confidential." Subsection (4) provides that "communications" made to the Board "shall be privileged" and specifies the circumstances under which a civil action may lie against a complaining party in connection with the filing of a complaint against a licensee.

Petitioner concedes that the Board's proceedings and investigations are confidential and therefore prohibited from disclosure to third parties. However, he asserts that the confidential nature of the complaint does not prohibit disclosure to the licensee whose conduct is the subject of the complaint. This tribunal agrees. Subsection (3) applies to prevent disclosure of materials relevant to the Board's investigation and proceedings to third parties, but does not prohibit disclosure to a licensee of a complaint made against him under the provisions of § 40-15-180(1).

Subsection (4) provides that communications made to the Board regarding a complaint "shall be privileged." Petitioner asserts that the "privilege" provided by subsection (4) is a provision of limited immunity for a complaining party and is not a privilege against disclosure, particularly as to the licensee who is the subject of a complaint. This tribunal agrees. The appellate courts in South Carolina have expressly concluded that virtually identical language in statutes governing the investigatory proceedings undertaken by the State Nursing Board (§ 40-33-936) and the State Board of Medical Examiners (§ 40-47-212) provides "a qualified privilege" regarding immunity provided to a party who files a complaint against a licensee with a regulatory board. See Hainer v. American Medical International Inc., 328 S.C. 128, 492 S.E.2d 103 (1997); Girgis v. South Carolina Department of Labor Licensing and Regulation (Board of Medical Examiners), Op. No. 2857, (S.C. Ct. App. Filed June 23, 1998) (Davis Adv.Sh. No. 23 at 15), 1998 WL 333506 (Ct. App. June 23, 1998) rehearing pending. In Girgis, the Court of Appeals expressly held that it was an error for the licensing board to refuse to release a copy of the initial complaint to the licensee who was the subject of a pending disciplinary action. Respondent argues that Girgis is only applicable in instances where a party is attempting to prove malice. Further, Respondent argues that because Petitioner has not made any allegation of malice, release of the initial complaint is not required in this case. This tribunal does not believe that this is what the Court intended in Girgis. Read as a whole, it is clear that the Court in Girgis construed subsection (4) as a type of limited "immunity" from liability for those who make good faith complaints against physicians, and not as a shield of confidentiality. "The clear holding of this case is that the privilege referred to in the identical statute is a privilege against liability rather than an absolute privilege against disclosure of the name of the complainant." Girgis, Op. No. 2857 (S.C. Ct. App. Filed June 23, 1998) (Davis Adv.Sh. No. 23 at 20), 1998 WL 333506, at *4 (Ct. App. June 23, 1998) rehearing pending. Further, while it appears that the physician in Girgis made his request for the initial complaint after the Board had issued a formal accusation, the Court did not cite the filing of a formal complaint as a prerequisite to triggering a licensee's right to obtain a copy of the initial complaint. Further, neither the statute nor the Girgis Court indicated that a licensee is required to make an allegation of malice against a complainant to be entitled to a copy of the initial complaint.

Respondent next argues that Petitioner's request for documents amounts to a discovery request, and therefore, is left solely within the Board's discretion. This tribunal finds this argument to be without merit. Notwithstanding the absence of Department regulations permitting discovery in Girgis, the Court held that Dr. Girgis was entitled to a copy of the initial complaint. Thus, the Court did not construe the request for the initial complaint as a discovery request. Accordingly, this tribunal will not construe the requests in the instant case as discovery requests.

Section 1-23-600(B) vests the Administrative Law Judge Division with appellate jurisdiction over final decisions of professional licensing boards. Section 1-23-380(A) authorizes this tribunal to review a preliminary, procedural, or intermediate agency action or ruling if review of the final agency decision would not provide an adequate remedy. As required by law, Petitioner exhausted all available administrative remedies before seeking judicial review. He made repeated requests to Respondent for the information, and sought judicial review only after Respondent failed to provide him with the information.(1)

The Court in Girgis did not place conditions on the licensee's right to obtain a copy of the initial complaint. Therefore, the licensee's right to this information is not limited to those circumstances where he must prepare a defense to formal charges, or where he has made an allegation of malice against the complainant. That is, Petitioner's right to obtain copies of the initial complaints is not predicated on whether the Board ultimately decides to pursue formal charges, but rather, upon the filing of the initial complaints in the first instance. Hence, the review of any final agency decision, should the Board decide to pursue charges, could not cure the Board's denial of Petitioner's right to have this information now. Likewise, the Board's decision not to pursue formal charges would not make Petitioner's entitlement to such information moot.

For the reasons set forth above, Petitioner is entitled to an order compelling the Board of Dentistry to disclose copies of the initial complaints filed against him in accordance with the provisions of S.C. Code Ann. § 40-15-180(1)(1986).

ORDER

Pursuant to the authority granted to the Administrative Law Judge Division under §§ 1-23-380 and 1-23-630, IT IS HEREBY ORDERED that within five days of the date of this order, the Board shall produce copies of the affidavits filed in accordance with § 40-15-180(1), denominated by the Board as 98-24 and 98-48, and copies of any other initial complaints filed against Petitioner under the provisions of § 40-15-180(1), which have not been disposed of at this time.

IT IS SO ORDERED.

____________________________________

John D. Geathers

Administrative Law Judge

August 24, 1998

Columbia, South Carolina

1. Further, even when a party has not exhausted all administrative remedies, "the exhaustion requirement may be excused where the facts are undisputed and the only issues are of law," as is the case in the present matter. State Dairy Comm'n of S.C. v. Pet, Inc., 283 S.C. 359, 324 S.E.2d 56, 57 (1984); see also Bernard Schwartz, Administrative Law § 8.40 (3d ed. 1991).


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