SC Administrative Law Court Decisions

This matter is before the court on Petitioner's motion to compel production of certain information and documents in regard to a disciplinary proceeding against Petitioner which was scheduled for hearing before the Board of Medical Examiners on August 12, 1998.⁽¹⁾ The Petitioner seeks:

(1) A list of the witnesses the Board intends to present at the hearing with a brief summary of their testimony;

(2) Copies of all documents that the Board intends to present at the hearing;

(3) Issuance of subpoenas for the patient's medical records from the Physician's former practice, and the patient's medical records of subsequent treatment at Medical University of South Carolina and Charleston Memorial;

(4) The initial complaint lodged against the Petitioner with the complainant's name; and

(5) Issuance of subpoenas for witnesses to appear at the hearing.

Respondent stipulated that it would promptly issue subpoenas for witnesses to appear at the hearing and a copy of all documents that the Board intends to present at the above hearing. That stipulation rendered those issues moot.

Petitioner also seeks a stay of the contested case hearing before the Board.

The Administrative Law Judge has appellate jurisdiction over final decisions of the Board.⁽²⁾ In exercising appellate jurisdiction, an Administrative Law Judge may hear appeals of interlocutory orders where "review of the final agency decision would not provide an adequate remedy." S.C. Code Ann. § 1-23-380(a) (Supp. 1997). Furthermore, S.C. Code Ann. § 1-23-320(d) provides that

The agency hearing a contested case may issue in the name of the agency subpoenas for the attendance and testimony of witnesses and the production and examination of books, papers and records on its own behalf or, upon request, on behalf of any other party to the case.

The administrative law judge division shall, on application of the agency enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers and records and shall have the power to punish as for contempt of court, by a fine or imprisonment or both, the unexcused failure or refusal to attend and give testimony or produce books, papers and records as may have been required in any subpoena issued by the agency.

The ALJ's enforcement of subpoenas does not, however, extend to an interlocutory review of the agency's discovery decisions. The hearing tribunal is vested with the authority to order the exchange of evidence prior to or at a contested hearing under the APA. See David E. Shipley, South Carolina Administrative Law 5-58 (2d Ed., S.C. Bar 1989). Analogously, the Board has the authority to order discovery in contested cases. However, the discovery provisions of § 1-23-320(c) and (d) are not mandatory, but rather, discretionary. See Ross v. Medical University of South Carolina, ___ S.C. ___, 492 S.E.2d 62 (1997). Since a Petitioner will have a right to appellate review of the Board's final decision, "[d]iscovery orders . . . are interlocutory and are not immediately appealable." Hamm v. South Carolina Public Service Com'n, 312 S.C. 238, 439 S.E.2d 852, 853 (S.C. 1994). Furthermore, a determination of whether a party is prejudiced by an order denying discovery is best determined in light of subsequent developments at trial. Lowndes Products, Inc. v. Bower, 262 S.C. 431, 205 S.E.2d 184 (1979).

At this interlocutory stage, the ALJD's jurisdiction is limited to compelling only that which the law unqualifiedly mandates. Within those parameters, I have reviewed the motion, heard arguments, and reviewed the applicable statutes, regulations and case law.

There is no mandate, by statute, regulation or due process, that the Board provide the Physician with a witness list. Furthermore, appellate review of the Board's final decision provides an adequate remedy for Petitioner. If, upon conclusion of the Board's contested case and issuance of its decision, Petitioner is able to demonstrate that his rights to due process were violated by the lack of discovery, the Administrative Law Judge can take corrective action. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1997); Ross, supra. Accordingly, this Court lacks subject matter jurisdiction to order the production of a witness list. To the extent that the Board may have voluntarily agreed to provide this list, I have no authority to compel them to do so.

The Petitioner argues that the Board's Administrator has no discretion to deny the Physician's request to issue subpoenas for the medical records or the witnesses. He contends that the duty to issue the subpoenas is ministerial. Due process is a flexible concept whose requirements in a particular case depend upon the importance of the interest involved and the circumstances under which the deprivation may occur. Roper Hosp. v. Clemons, 326 S.C. 534, 484 S.E.2d 598 (Ct. App. 1997). The essential inquiry in determining whether a party has been granted due process is whether the party has the opportunity to be heard at a "meaningful time and in a meaningful manner." South Carolina Nat'l Bank v. Central Carolina Livestock Market Inc., 289 S.C. 309, 345 S.E.2d 485 (1986).

In this case, the Board intends to issue a subpoena for the medical records the Petitioner seeks. However, the Board contends that Section 1-23-320(d) only authorizes the Board to order the production of those records at the contested case hearing. Courts reject a construction of words used in a statute when acceptance of a statutory interpretation would lead to a result so absurd that it could not possibly have been intended by the legislature or would defeat the plain legislative intention. Kiriakides v. United Artists Communications, Inc., 312 S.C. 271, 440 S.E.2d 364 (1994) (citing Stackhouse v. Rowland, 86 S.C. 419, 68 S.E. 561 (1910) (courts will reject

the plain and ordinary meaning of words used in a statute when to accept it would lead to a result so absurd that it could not possibly have been intended by the legislature or would defeat the plain legislative intention)). Prehearing discovery allows a party to review the evidence an opposing party may present at trial and therefore intelligently prepare for the case against him. Its aegis lies in the desire to prevent "trial by ambush." Production of the documents on the day of the hearing would often render the production of the records meaningless, as any careful review of the documents would be difficult. More importantly, any discovery of new evidence would often lead to a need for a continuance of the case until the evidence could be subpoenaed. I find that the legislature did not intend such a limitation of the production of the records only on the date of the hearing. Accordingly, the Board must issue subpoenas for the medical records immediately.

Under the applicable statute and regulations, the Board must produce a copy of the initial complaint lodged against the Physician. S.C. Dept. of Labor, et al. v. Girgis, Op. No. 2857 (S.C. Ct. App., filed June 23, 1998); S.C. Code Ann. §§ 40-47-200, 212. I find that the new regulations promulgated by the Board [Chapter 81, S.C. Reg., dated June 26, 1998] do not apply inasmuch as the complaint in this case was served prior to the effective date of the regulation. However, I further find that the Board is not required to reveal the identity of the complainant (unless that person is called to testify) and may redact the name of the complainant from the initial complaint.

"[A]n order denying a motion for a continuance is an interlocutory order not affecting the merits and, thus, is not immediately appealable." Townsend v. Townsend, 323 S.C. 309, 474 S.E.2d 424,427 (S.C. 1996). Furthermore, the Petitioner is not precluded from seeking a continuance of this case. A motion for continuance may be filed with the Board which is best equipped to exercise its discretion to determine whether to grant or deny the continuance.

IT IS THEREFORE ORDERED that :

1. The request for the witness list is denied.

2. The request for the production of the records before the hearing is granted.

3. The request for the initial complaint is granted as set forth above.

4. The request for the stay is denied.

AND IT IS SO ORDERED.

__________________________________

Ralph K. Anderson, III

Administrative Law Judge

August 14, 1998

Columbia, South Carolina

1. After the hearing on this Motion, which was held August 6, 1998, this Court rendered a decision the same day of the hearing, via a conference call with the parties, which is now memorialized in this Order.

2. The Petitioner did not explain and the Respondent did not object to the jurisdiction or the authority of this Court to compel the issuance of subpoenas in this case.