ORDERS:
ORDER
This matter is before me pursuant to the Petitioner's request for injunctive relief. Petitioner seeks to compel the Respondent,
South Carolina Department of Labor, Licensing and Regulation, State Board of Medical Examiners ("Board") to furnish
certain documents and information related to a pending disciplinary proceeding against him. By stipulation of all parties, no
merits hearing was held in this case, and the matter was submitted to the Court for a decision on the briefs.
STATEMENT OF THE CASE
The Petitioner is a physician licensed to practice medicine in South Carolina. On November 15, 1998, Petitioner was served
with a formal Complaint by the Board, pursuant to S.C. Code Ann. Regs. 81-13, alleging that Petitioner had violated S.C.
Code Ann. §§ 40-47-200(F)(7), 40-47-200(F)(8), and S.C. Code Ann. Regs. 81-60(A) and (B) in his treatment of eleven
patients. The disciplinary action is currently pending before the Board. In order to prepare his defense, the Petitioner
requested that the Board disclose the identities of the initial complainants against him and provide copies of the initial
complaints. The Board refused to rule on this request and indicated to the Petitioner that it would not consider the request
until the disciplinary hearing, which was then scheduled for July 14, 1999. Petitioner then filed this action with the
Administrative Law Judge Division. Petitioner requests that this Court compel the Board to provide the identities of the
initial complainants, copies of the initial complaints, the identity of the Board member who reviewed the initial complaints,
and a copy of any report made pursuant to the review of the initial complaint and patient records.
DISCUSSION
I. Jurisdiction
S.C. Code Ann. § 40-47-170 (Supp. 1998) provides that "[a]ny action of the [State Board of Medical Examiners] relating to
the granting, refusal or cancellation of a license, or any other official action of the board relating to a license or licensee
hereunder, shall be subject to review by an administrative law judge. . . ." Therefore, the Administrative Law Judge Division
has jurisdiction to hear this matter.
II. Initial Complaints and Identities of Initial Complainants
Petitioner argues that, pursuant to S.C. Code Ann. § 40-47-212 and the opinion of the South Carolina Court of Appeals in
S.C. Dept. of Labor, Licensing and Regulation v. Girgis, 332 S.C. 12, 503 S.E.2d 490 (Ct. App. 1998), he is entitled to a
copy of the initial complaints against him and to a disclosure of the identity of the initial complainants. He further argues
that he is entitled to this information as a matter of procedural due process. The Board asserts that its recently enacted
regulations, S.C. Code Ann. Regs. 81-12.5, 81-20, and 81-26, explicitly prohibit disclosure of the identity of the initial
complainants, and that the Girgis decision has thus been rendered moot.
S.C. Code Ann. 40-47-212 (1986) provides:
Every communication, whether oral or written, made by or on behalf of any person, firm or corporation to the Board or any
person designated by it to investigate or otherwise hear matters relating to the revocation, suspension or other restriction on
a license or the limitation on or other discipline of a licensee, whether by way of complaint or testimony, shall be privileged;
and no action or proceeding, civil or criminal, shall lie against any such person, firm or corporation by or on whose behalf
such communication shall have been amde by reason thereof, except upon proof that such communication was made with
malice.
No part of this article shall be construed as prohibiting the respondent or his legal counsel from exercising the
respondent's constitutional right of due process under the law, nor to prohibit the respondent from normal access to the
charges and evidence filed against him as a part of due process under the law.
(Emphasis added). In Girgis, supra, the South Carolina Court of Appeals construed this statute to require the disclosure of
the identity of the initial complainant to a respondent in a medical disciplinary proceeding. The court noted that the privilege
referred to in the statute is a privilege against liability rather than an absolute privilege against disclosure of the identity of the
complainant.
Subsequent to the Girgis decision, the Board promulgated a set of regulations governing disciplinary proceedings. Regs.
81-12.5 (State Register Doc. No. 2272, June 26, 1998) provides in pertinent part:
The identity of the person making the initial complaint shall remain privileged and confidential during the initial investigation
of the complaint and shall not be disclosed in any event. If a forma. complaint. . . is initiated, the identity of the initial
complainant shall continue to remain privileged and confidential, and shall not be disclosed under any circumstances. . .
unless the initial complainant testified as a witness in the formal proceedings.
Regs. 81-20 and 81-26, promulgated at the same time as Regs. 81-12.5, contain similar provisions concerning the
confidentiality of the identity of the initial complainant. The Board asserts that, since the initial complainant in the
Petitioner's case will not be called as a witness in the formal proceedings, there is an absolute prohibition against revealing
the identity of the complainant pursuant to Regs. 81-12.5. The regulation does, on its face, prohibit the disclosure of the
initial complainant's identity.
An administrative regulation is valid as long as it is reasonably related to the purpose of the enabling legislation. Hunter &
Walden Co. v. S.C. State Licensing Bd. for Contractors, 272 S.C. 211, 251 S.E.2d 186 (1978). Although a regulation has
the force of law, it must fall when it alters or adds to a statute. Society of Professional Journalists v. Sexton, 283 S.C. 563,
324 S.E.2d 313 (1984). A rule may only implement the law. Banks v. Batesburg Hauling Co., 202 S.C. 273, 24 S.E.2d 496
(1943). In this case, I find that Regs. 81-12.5, 81-20 and 81-26, insofar as they may be construed to prohibit disclosure of
the identity of the initial complainant and of the initial complaint itself to a respondent in a medical disciplinary proceeding,
are in direct conflict with the plain meaning of S.C. Code Ann. § 40-47-212 and its interpretation by the Court of Appeals in
Girgis, supra. Section 40-47-212 specifically states that it shall not be construed to deny the respondent access to the
charges and evidence against him. Moreover, the regulations are also in direct conflict with the language of S.C. Code Ann.
§ 40-47-213 (1986). That statute prohibits disclosure of any information pertaining to complaints, investigations, or other
proceedings before the Board. However, it further provides that the prohibition does not apply to "persons involved and
having a direct interest in the complaint, investigation, or other proceeding." Without question, the respondent in a medical
disciplinary proceeding has a "direct interest" in the complaint or investigation. Since § 40-47-213 specifically allows
disclosure to the respondent in a disciplinary proceeding, the regulations are invalid in their attempt to deny the Petitioner
access to information pertaining to the complaint, including the identity of the initial complainant. The Board's argument to
the contrary, therefore, must fail. See Woodward v. S.C. Dept. of Labor, Licensing and Regulation, Board of Medical
Examiners, 98-ALJ-11-0587-AP (June 1, 1999).
III. Identity of Board Member and Copy of Board's Report
The Petitioner further requests that the Board provide him with the identiy of the Board member who reviewed the initial
complaint, and a copy of any investigative report which furnished the basis of the formal complaint. I find that disclosure of
this information is required pursuant to S.C. Code Ann. §§ 40-47-212 and 40-47-213. I further find that disclosure of the
identity of the Board member who reviewed the initial complaint is necessary under the Supreme Court's holding in Garris v.
Governing Bd. of the S.C. Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48 (1998). In Garris, the Supreme Court held
that "members [of a board] who participate in the investigation or prosecution of a case must distance themselves from the
adjudicatory process, and should refrain from even discussing that case with future adjudicators." Id., 511 S.E.2d at 55.
Disclosure of the identity of any Board members who participated in the investigation of Petitioner's case will ensure that
those members are excluded from the adjudicatory process.
IV. Due Process and Sixth Amendment Arguments
Petitioner also argues that the Board's failure to provide him the information he seeks violates his rights to due process
under the Fourteenth Amendment and his right to confront his accuser under the Sixth Amendment. Having determined that
South Carolina law mandates disclosure of the information in question, it is unnecessary for me to address these arguments.
ORDER
For all the foregoing reasons, it is hereby ORDERED that the Board shall provide the Petitioner with copies of the initial
complaints against him, the identities of the initial complainants, the identities of any Board members involved in the
investigative process, and copies of any investigative reports used in the formulation of the formal complaint.
AND IT IS SO ORDERED.
_______________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
March 9, 2000 |
