SC Administrative Law Court Decisions

This matter is before me pursuant to the motion of the Petitioner, Anonymous Physician, to vacate the Order of Temporary Suspension of Petitioner's medical license by the Respondent State Board of Medical Examiners (Board), issued on July 2, 1998. For the following reasons, I conclude that the Order of the Board must be vacated and the Petitioner's license reinstated pending the conclusion of disciplinary proceedings, under certain conditions enumerated herein.

The Petitioner is a duly licensed physician in the State of South Carolina and has been practicing psychiatry for approximately seventeen years in Charleston, South Carolina. On July 1, 1998, the Petitioner was arrested on a charge of allegedly committing a lewd act upon a nine year old minor. The charge was based upon a claim made by the minor to the Charleston Police Department. On July 2, 1998, the Board issued an Order of Temporary Suspension, removing the Petitioner from the practice of medicine. The Order of Temporary Suspension was issued under the authority of S.C. Code Ann. § 1-23-370(c)(1986), which allows an agency to summarily suspend a license if the agency makes a finding in its Order that the public health, safety, or welfare imperatively requires emergency action. The Petitioner submitted a Petition for Reinstatement to the Board on July 16, 1998.⁽¹⁾ Although the full Board held a regularly scheduled meeting on July 20, 1998, the Board did not hold a hearing on the Petition, stating that its agenda was full. Instead, the Administrator of the Board, by letter dated July 31, 1998, informed the Petitioner's attorney that the President of the Board had denied the Petition for Reinstatement. Thereafter, the Petitioner brought this action for injunctive relief.

The Board based its Order of Temporary Suspension upon S.C. Code Ann. § 1-23-370(c)(1986), which provides:

No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. 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.

(Emphasis added). This section, which provides for suspension of a license without a prior hearing, imposes two requirements upon the agency suspending a license.

First, the agency must make a specific finding of fact in its order that the summary suspension is required because the public health, safety, or welfare requires emergency action. In this case, the Board's sole finding in its Order for Temporary Suspension reads as follows: "WHEREAS, the Board finds that Respondent's lewd acts upon a minor, as described above, if true as alleged, constitute a serious threat to the public health, safety, or welfare. . . ." (Emphasis added). It is apparent that the Board made no factual finding in its Order, but instead merely repeated the allegations against the Petitioner and made a conclusory finding that the allegations, "if true as alleged," threatened the public welfare. There is no indication that the Board made any independent investigation or evaluation of the charges against the Petitioner which would provide an evidentiary basis for its finding, nor did the Board make any finding as to the truth or falsity of the allegations. Where an administrative body is required to make findings of fact, implicit findings of fact are not sufficient. Where material facts are in dispute, the administrative body must make specific, express findings of fact. A recital of conflicting testimony followed by a general conclusion is insufficient. Able Communications, Inc. v. S.C. Public Service Comm'n, 290 S.C. 409, 351 S.E.2d 151 (1986); Brayboy v. Clark Heating Co., Inc., 306 S.C. 56, 409 S.E.2d 767 (1991). Under the circumstances of this case, I find that the Board has failed to meet the requirements of § 1-23-370(c).

Second, an agency which seeks to summarily suspend a license must afford the licensee a prompt hearing. Section 1-23-370(c) requires that any proceedings for revocation or other disciplinary action against a licensee must by "promptly instituted and determined." The Order of Temporary Suspension in this matter provides for no proceeding or hearing to take place before the Board. Although the Board certainly had the opportunity at its July meeting to afford the Petitioner a hearing on the Petition for Reinstatement at its July meeting, it declined to do so. Instead, the Board summarily denied the Petition by letter. The Board's counsel admitted at the hearing that the Board intended to institute disciplinary proceedings in the standard manner--first, a hearing before the Disciplinary Panel, and then consideration by the full Board of the Panel's recommendations. It appears that this matter, in the normal course of events, would not have been considered by the Board until at least its October, 1998 meeting. Such a timetable can hardly be considered a "prompt" institution and determination of Petitioner's case, and denies the Petitioner any of the procedural safeguards required pursuant to Section 1-23-370(c). When the State seeks to revoke or deny a professional license, liberty and property interests are implicated and procedural due process requirements must be met, including notice and opportunity for a hearing appropriate to the nature of the case. S.C. Const. art. I, § 22; Brown v. S.C. State Bd. of Educ., 301 S.C. 326, 391 S.E.2d 866 (1990).

This court realizes the seriousness of the allegations against the Petitioner. However, this court is equally cognizant of the Petitioner's liberty and property interests in his professional license. To summarily suspend the Petitioner's license without meeting the requirements of Section 1-23-370(c) or affording him a meaningful opportunity to contest that suspension constitutes a denial of due process. Accordingly, the Board's Order of Temporary Suspension must be vacated and the Petitioner's license to practice medicine must be reinstated pending a prompt resolution of any disciplinary matters against the Petitioner. Petitioner's license is reinstated upon the following conditions, to which Petitioner has already agreed to adhere:

1. The Petitioner shall limit his practice to the South Carolina Department of Mental Health Clinics where he has previously practiced, or to contractual work on behalf of any other State agency.

2. Any sessions the Petitioner conducts with minor patients shall be in the presence of either the minor's parent(s) or a staff medical provider.

In imposing these conditions, this court makes no findings as to the truth or falsity of the allegations against the Petitioner. Since this court has vacated the Board's order based upon the Board's failure to meet the procedural requirements of Section 1-23-370, it is unnecessary to reach the additional grounds for relief asserted by the Petitioner.

For the foregoing reasons, the Order of Temporary Suspension issued by the Respondent on July 2, 1998, is hereby vacated and the Petitioner's license to practice medicine is hereby reinstated under the express conditions enumerated above. The Board is ordered to promptly institute any disciplinary action against the Petitioner, and to hold a Disciplinary Panel hearing in this matter no later than forty-five (45) days from the date of this Order. The Board shall thereafter consider this matter at its October, 1998 meeting.

AND IT IS SO ORDERED.

Chief Judge

August 5, 1998

Columbia, South Carolina.

1. In his Petition for Reinstatement, the Petitioner submitted the results of a polygraph test, which was conducted by a qualified examiner and independently reviewed, indicating that the Petitioner was not being deceptive when he denied the allegations which served as the basis for the Order of Temporary Suspension.