ORDERS:
AMENDED ORDER
On August 5, 1998, this Court issued an Order vacating the State Board of Medical
Examiners' (Board) Order of Temporary Suspension, issued on July 2, 1998, which had temporarily
suspended the Petitioner's license to practice medicine. Upon consideration of a request by the
Petitioner, filed August 6, 1998, the Order of August 5, 1998, is hereby withdrawn and the following
Order substituted therefor.
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.
STATEMENT OF THE CASE
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.
DISCUSSION
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).
CONCLUSION
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
condition, to which Petitioner has already agreed to adhere:
Any sessions the Petitioner conducts with minor patients shall be in the presence of either
the minor's parent(s), guardian or other family member, or another medical provider.
In imposing this condition, 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.
ORDER
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 condition 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 the original Order in this matter, August 5, 1998. The
Board shall thereafter consider this matter at its October, 1998 meeting.
AND IT IS SO ORDERED.
Marvin F. Kittrell
Chief Judge
August 10, 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. |