ORDERS:
TEMPORARY RESTRAINING ORDER
This matter came before the Administrative Law Judge Division on Plaintiff's Complaint and
Petition for Temporary Restraining Order requesting the issuance of a Temporary Restraining
Order against the Defendant pursuant to S.C. Code Ann. Section 40-15-10, et seq. (Supp. 1993).
A hearing was conducted on August 22, 1994 at 10:00 a.m. in conference room of the Division
located at 1205 Pendleton Street in Columbia, South Carolina. The Plaintiff was represented by
its Attorney of Record, Staff Counsel, Richard W. Simmons, II, and the Defendant was not
present at this ex parte hearing. Based upon the testimony and evidence presented at the hearing,
I make the following:
FINDINGS OF FACT
David M. Addison is an investigator for the Board of Dentistry. On August 18, 1994 he received
information from two agents with the Department of Health and Environmental Control's Bureau
of Drug Control about Dr. Mogens' attempt to obtain demerol and morphine from various
pharmacies in the Myrtle Beach area to conduct an emergency dental procedure on his patient, a
live-in girlfriend who was with him when he tried to obtain the narcotics. Based upon the
conversation with Brett Schneider, the DHEC agent an investigation/inspection was conducted
pursuant to S.C. Code Ann. Section 40-15-190 (Supp. 1993).
Participating in the investigation was David Addison and the two DHEC investigators. On
Friday, August 19, the investigators met with Dr. Mogens at his office. They observed the office
in disarray with papers scattered around. A live rabbit also had free run of the office. Numerous
rabbit droppings were present and vials of narcotics were contaminated with rabbit food. Dr.
Mogens moved slowly and his speech was monotone. His pupils were dilated indicating the
presence of some drug in his system. The investigators identified themselves and the purpose of
the visit. The Defendant was informed of his rights and subsequent to Defendant's voluntary
waiver of his right to counsel, he was questioned. During this questioning it became readily
apparent that the Defendant was under the influence of controlled substances and was exhibiting
symptoms of impairment. Defendant admitted to being under the influence of several controlled
substances: Valium and Dihydro Codeine Bitartrate.
In the course of his dental practice, Defendant admitted to combining various controlled
substances, testing these combinations upon himself, and administering the combinations of
controlled substances to his patients during intervenous anesthesia. When mixing the
combinations of narcotics the Defendant the gave them "street" names such as "Headbanger" and
"Hang Glider".
During Woodstock 1994, the Defendant packed an emergency kit and other items. He purchased
a vial or vials of Demerol for the trip. He admitted to the investigators that he used Demerol for
purposed other than medicinal self-administering 50 mg. of Demerol.
The investigator for the Board asked the Defendant to cancel his appointments for that day which
had been scheduled for the morning and the afternoon. He also requested that the appointment
scheduled for Saturday, August 20 and Sunday, August 21 to be cancelled. The investigator
learned that subsequent to questioning Defendant, he was placed under arrest.
The Defendant was not present at the hearing nor was he represented by counsel because he has
been incarcerated since Friday, August 19, 1994. The investigator for the Board did not know
whether the Defendant had been released or whether he has obtained counsel. Counsel for the
Board previously represented to the Division that he was trying to determine if the Defendant had
counsel.
CONCLUSIONS OF LAW
Rule 65 of the South Carolina Rules of Civil Procedure governs the issuance of injunctions and
temporary restraining orders. It provides that a temporary restraining order must not be issued
without notice to the adverse party unless it clearly appears that immediate and irreparable injury,
loss or damage will result before notice can be served and a hearing scheduled. See Baines v. City
of Danville, 337 F.2d 579 (4th Cir. 1964), aff'd 384 U.S. 890 (1966)( An ex parte application for
a restraining order may be granted only where it appears that the applicant will suffer irreparable
injury before notice to the adverse party and a hearing can be had.)
An ex parte order is reserved for those rare occasions where no adverse interest exists or where
exigent circumstances dictate that action be taken prematurely. Herring v. Credit Bureau of
Columbia, S.C., 277 S.C.368, 252 S.E.2d 123 (1979). In the present case, there are exigent
circumstances. The dentist admitted to mixing narcotics to obtain the best effects for anesthetic
purposes and administering the mixtures to his patients. He made numerous attempts to obtain
demerol and morphine to perform a procedure on his patient who accompanied him while trying
to obtain the narcotics. He was under the influence of narcotics the morning the investigators
interviewed him and had planned to see his patients while in an impaired condition. He clearly
was a danger to his patients and his ability to perform his duties was diminished substantially. The
Board had reason to investigate pursuant to Section 40-15-190(3).
After consideration of the arguments presented by Counsel for Plaintiff, the pleadings and
affidavits filed in this action, the testimony and the exhibits and the applicable law, I find and
conclude that the allegations of the Plaintiff and the admissions of Defendant, if proven to be true,
constitute an immediate and serious danger to the public health, safety, and welfare. This Court
further finds and concludes that the danger presented by Defendant's alleged actions and
admissions requires the extraordinary measure of temporarily suspending Defendant's license to
practice dentistry in this state pending further proceedings. S.C. Code Ann. Section 40-15-370,
and Section 40-15-380 (Supp. 1993).
ORDER
IT IS ORDERED that Defendant Dr. Max S. Mogens, effective August 22, 1994, is temporarily
restrained and enjoined from engaging in the practice of dentistry until Thursday, September 1,
1994 at 5:00 p.m. when this restraining order expires unless before that time the Order for good
cause shown is extended, or unless the Defendant consents that it may be extended for a longer
period.
IT IS FURTHER ORDERED that an evidentiary hearing will be conducted at the Edgar A.
Brown Building, 1205 Pendleton Street, Columbia, South Carolina in Room 219, commencing at
3:30 p.m., Monday, August 29, 1994, to determine what, if any, further equitable relief should be
granted in this matter pending the outcome of other proceedings involving the Defendant before
the Board of Dentistry.
IT IS FURTHER ORDERED that except for the fact that the Defendant has been temporarily
suspended and any other action expressly authorized to be released as public information, all
pleadings, records, testimony, orders, and other matters related to this proceeding shall be kept
strictly confidential in accordance with S.C. Code Ann. Section 40-15-215 (Supp.1993).
AND IT IS SO ORDERED.
_____________________________
ALISON RENEE LEE
Administrative Law Judge
Columbia, South Carolina
August 22, 1994 |