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). |