ORDERS:
ORDER
STATEMENT OF THE CASE
This matter is before me pursuant to the motion of the Petitioner, Sobhi A. Girgis, M.D., to quash a hearing notice issued by
the Respondent, South Carolina Department of Labor, Licensing, and Regulation, State Board of Medical Examiners
("Board"), issued on June 18, 1999, and directing the Petitioner to appear before the Board at a hearing on July 19, 1999. A
hearing on the Motion was held at the offices of the Administrative Law Judge Division ("Division") on July 15, 1999.
Following the arguments of counsel, this Court orally granted the motion to quash the hearing notice. This Order shall set
forth the parameters under which the Board shall conduct further proceedings in this matter, as previously referred to in this
Court's Order of May 13, 1999.
DISCUSSION
I. Procedural History
This case has a long and tortured procedural history, which is fully detailed in this Court's Orders of May 13, 1999, and June
2, 1999, and which will not be repeated here. Following the issuance of the June 2, 1999 Order, which found the Board's
President and Executive Director in contempt for refusing to reinstate the Petitioner's medical license pursuant to the May
13 Order, the Board reinstated Petitioner's license pending further proceedings. It is the nature of these further proceedings
which is now at issue. On June 18, 1999, the Board issued a Notice of Hearing directing Petitioner to attend a hearing
before the Board on July 19, 1999. Petitioner then filed the instant Motion to Quash the hearing notice with the Division,
claiming that the notice was deficient in that it failed to afford the Petitioner due process.
II. Deficiencies in Hearing Notice
The hearing notice issued by the Board on June 18, 1999, read as follows:
TO THE RESPONDENT NAMED:
YOU ARE HEREBY NOTIFIED that the Board of Medical Examiners will consider all pending matters pursuant to the
Order of the Court of Appeals dated June 23, 1998, in the above-captioned matter at 8:15 A.M. on July 19, 1999, at 110
Centerview Drive, Kingstree Building, Room 106, Columbia, South Carolina.
FURTHER, the Respondent shall personally appear before the Board at said hearing, and shall have the right to be
represented by counsel. Respondent and/or his counsel may submit briefs and be heard in oral argument in opposition to
or in support of the Order of the Court of Appeals.
IT IS THEREFORE ORDERED that notice of intent to appear by counsel for the Respondent, if there be such counsel, shall
be given to the counsel for the Board. Counsel for the Respondent and the Board shall confer as soon as possible in regard
to filing and exchange of briefs, if briefs will be filed, and each shall be limited to thirty (30) minutes for oral argument
and presentation of their case.
(Emphasis added.)
Clearly, this Notice of Hearing indicates that the Board intended to conduct an appellate-type hearing, with briefs and oral
argument limited to thirty minutes per side. Nothing in the Notice indicates that the Petitioner would be allowed to call
witnesses, cross-examine witnesses, or present new evidence. The type of hearing described in the Notice contravenes the
instructions in this Court's Order of May 13, 1999, in which I found that the Board had jurisdiction to conduct further
contested case proceedings following the reinstatement of Petitioner's license. I have previously noted that the Petitioner
now occupies the position he was in prior to the issuance of the Board's Order which was reversed by the Court of Appeals--that of a licensed physician awaiting disciplinary proceedings. Accordingly, Petitioner is entitled to a full evidentiary
contested case hearing, with the opportunity to present evidence and to cross-examine adverse witnesses, on the disciplinary
proceedings against him, now that he has been provided a copy of the initial complaint. I therefore find that the Notice of
Hearing issued by the Board on June 18, 1999, is deficient in that it does not afford the Petitioner the right to a full
evidentiary hearing. Thus, the Petitioner's motion to quash the Notice is granted.
III. Procedure for Disciplinary Hearing
The Petitioner argues that, in order for him to be afforded due process, the Board must appoint a hearing panel to take the
evidence at the contested case hearing and provide a recommendation, pursuant to S.C. Code Ann. §§ 40-47-210 and 211
(1986 & Supp. 1998). It is clear that Petitioner's right to follow his chosen profession is protected by the Due Process
Clause. Brown v. S.C. State Bd. of Education, 301 S.C. 326, 391 S.E.2d 866 (1990). Furthermore, "when the State seeks
to revoke or deny a professional license, [due process] interests are implicated and procedural due process requirements
must be met. [Citations omitted.] The State must afford notice and the opportunity for a hearing appropriate to the nature of
the case." Id. at 329, 391 S.E.2d at 867. At a minimum, certain elements must be met in order for procedural due process
requirements to be satisfied, including adequate notice, adequate opportunity for a hearing, the right to introduce evidence,
and the right to confront and cross-examine witnesses. Huellmantel v. Greenville Hosp. System, 303 S.C. 549, 402 S.E.2d
489 (Ct. App. 1991). In this case, as previously discussed, Petitioner must be afforded a full evidentiary hearing on all issues
in the case, with the opportunity to confront and cross-examine adverse witnesses. However, "[d]ue process is flexible and
calls for such procedural protections as the particular situation demands." Stono River Envtl. Protection Ass'n v. S.C. Dep't
of Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 340, 341 (1991). Notwithstanding the procedures set forth in
S.C. Code Ann. §§ 40-47-200 and 211, the full Board is empowered, in any proceeding conducted pursuant to Article 1 of
Chapter 47 of Title 40, to subpoena witnesses, take evidence, and require the production of any documents or records which
the board deems relevant to the inquiry. S.C. Code Ann. § 40-47-210 (Supp. 1998). I therefore find, after a careful review
of the Opinion of the Court of Appeals in this matter and thorough consideration of the arguments made by the parties, that
the Petitioner's due process rights can be met in this instance if the full Board conducts an evidentiary hearing as outlined
above. However, prior to the hearing, the parties must be afforded the opportunity to participate in discovery as outlined
below.
ORDER
For all the foregoing reasons, it is hereby ORDERED that the Petitioner shall be afforded a full evidentiary hearing before
the entire Board, including the opportunity to present evidence and to cross-examine adverse witnesses. The issues at the
hearing shall not be limited to those arising from the furnishing of the initial complaint, but shall include all issues raised at
the original disciplinary hearing as well. The hearing shall be held no sooner than ninety (90) days from the date of this
Order. All parties shall have the opportunity to conduct discovery, including the taking of depositions, prior to the hearing.
IT IS FURTHER ORDERED that the Board shall not limit the time for the hearing, but shall allow the Petitioner such time
as his counsel deems necessary in which to present his evidence and conduct cross-examination. Counsel for both parties
shall consult prior to the hearing in order to determine the length of time necessary to try all issues in the case, and the Board
shall make itself available for such time as is deemed necessary by counsel. The Board's Notice of Hearing shall be in
conformance with the guidelines established in this Order.
AND IT IS SO ORDERED.
____________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
August _____, 1999 |