ORDERS:
ORDER
INTRODUCTION
This matter is an appeal by Dr. William F. Bolt (Appellant) of a December 19, 2000 Order on Remand of the Board of
Medical Examiners of the State of South Carolina (Board). The Board publicly reprimanded Bolt, imposed a $10,000.00
fine and subjected his medical license to certain conditions. Counsel for both parties presented oral arguments at the
Administrative Law Judge Division (ALJD) on June 21, 2001.
FACTUAL BACKGROUND
Appellant is a physician licensed to practice medicine in South Carolina. Appellant practiced in the field of psychiatry
from 1963 to 1985, after which he retired for five years. In 1992 he began practicing in the field of bariatrics.
A formal complaint was served on Dr. Bolt on December 17, 1998 alleging his violations of S.C. Code Ann. § 40-47-200
and 26 S.C. Code Ann. Regs. 81-60 during the time frame of 1992 through 1998. A hearing was held on November 3,
1999 before a Hearing Panel comprised of three members of the Medical Disciplinary Commission. The Hearing Panel
issued its Report on November 14, 1999 and found Appellant guilty of violating S.C. Code Ann. § 40-47-200(F)(7) and (8)
and 26 S.C. Code Ann. Regs. 81-60(A). A hearing before the Board was conducted on February 7, 2000. The Board
issued its Final Order on March 1, 2000. The Board found Appellant guilty of violating S.C. Code Ann. § 40-47-200(F)(7)
and 26 S.C. Code Ann. Regs. 81-60(A), in failing to provide competent medical service because he did not adequately
document medical findings and treatment. The Board publicly reprimanded Appellant and ordered him to (1) pay a
$10,000.00 fine; (2) attend and complete a drug education course, at his own expense, offered by Forensic and Educational
Consultants in New Jersey; and (3) successfully complete and pass the SPEX (Special Purpose) examination within one (1)
year of the Board's Order. On August 4, 2000, Appellant requested a stay of the penalty provisions of the Final Order
pending his appeal. On November 7, 2000, this tribunal remanded the case to the Board, with instructions to set forth a
detailed explanation to support Findings of Fact numbers 3,4,5, 6, 8 and 9. This tribunal also granted Appellant's request
for a stay, but required Appellant to complete the drug education course and the SPEX examination within six months of
the November 7, 2000 Order.
On December 19, 2000, the Board issued an Order on Remand again finding Appellant guilty of violating S.C. Code Ann.
§ 40-47-200(F)(7) and S.C. Code Ann. Regs. 81-60(A).
ANALYSIS
The standard of review in appeals from the Board is set forth in the Administrative Procedures Act, specifically S.C. Code
Ann. § 1-23-380 (Supp. 2000). Section 1-23-380(A)(6) provides:
The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The
court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify
the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences,
conclusions or decisions are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2000).
In the instant case, this tribunal is presented with the questions of whether the Board's December 19, 2000 order is affected
by errors of law or is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. (1)
The essence of the issues raised by Appellant can be summarized by four main questions which are addressed below: (1)
Did the Board err in allowing Dr. Hanlin to testify as an expert witness? (2) Did the Board err in allowing the Standards of
Practice and the Bariatric Practice Guidelines of the American Society of Bariatric Physicians (ASBP) to serve as the
standard of care for bariatric physicians in South Carolina? (3) Did the Board err in disciplining Appellant for actions not
covered by any "guidelines or regulations that have been adopted by the Board for the practice of [b]ariatrics?" and (4)
Were the Board's findings of fact supported by substantial evidence?
I. Errors of law
Qualification of Expert Witness
Appellant contends that the Board erred in allowing Dr. Hanlin to testify as an expert witness. I must disagree.
The qualification of an expert witness and the admissibility of the expert's testimony are matters within the Board's
discretion. See Gooding v. St. Francis Xavier Hosp., 326 S.C. 248, 252, 487 S.E.2d 596, 598 (1997). "'[A]n expert is not
limited to any class of persons acting professionally.'" Id., quoting Botehlo v. Bycura, 282 S.C. 578, 586, 320 S.E.2d 59, 64
(Ct. App.1984). (2) Defects in an expert witness's education and experience go to the weight, rather than the admissibility, of
the expert's testimony. Gooding, 487 S.E.2d at 598 (1997).
I find no abuse of discretion in the Board's qualification of Dr. Hanlin as an expert witness. Dr. Hanlin is a board certified
family practitioner and a percentage of his practice, albeit small, involves the treatment of obesity. Currently, bariatrics is
not recognized as a medical specialty by the American Board of Medical Specialties. Rather, the treatment of obesity is an
area considered properly within the scope of family practice. Dr. Hanlin was properly qualified as an expert witness in the
treatment of obesity. (3)
Standard of Care
Appellant also argues that the Board erred in allowing the Standards of Practice and the Bariatric Practice Guidelines of the
ASBP to serve as the standard of care for bariatric physicians in South Carolina. Related to this argument is Appellant's
contention that the Board erred in disciplining Appellant for actions not covered by any "guidelines or regulations that have
been adopted by the Board for the practice of [b]ariatrics."
The applicable standard to which all South Carolina physicians are held is set forth in Regulation 81-60(A), which states
that a physician "shall be dedicated to providing competent medical service with compassion and respect for human
dignity." The determination of what is, or is not, "competent medical service" requires reference to existing case law,
which provides that the standard of care is that of an average, competent physician acting in the same or similar
circumstances. See King v. Williams, 276 S.C. 478, 279 S.E.2d 618 (1981); see also Bonaparte v. Floyd, 291 S.C. 427,
354 S.E.2d 40, 45 (Ct. App. 1987) (To recover for medical malpractice, a plaintiff must show failure by a physician to
exercise that degree of care and skill which is ordinarily employed by the profession under similar conditions and in like
circumstances). This standard, which has been applied in medical malpractice cases, is equally applicable to a professional
disciplinary proceeding, as the inquiry is the same: whether there is a departure from the established medical standard of
care. See Toussaint v. State Bd. of Medical Examiners, 303 S.C. 316, 400 S.E.2d 488 (1991) ("[A] physician must
conform his conduct to those standards of competence acceptable within the medical community of this State.").
Notably, the South Carolina Supreme Court discarded the "locality rule" in 1981, and since then it has endorsed the practice
of allowing experts to testify regarding a national standard of care. See Moultrie v. Medical University of South Carolina,
280 S.C. 159, 311 S.E.2d 730 (1984) (trial court erred in prohibiting plaintiff's expert witness from testifying to the national
standards of care for anesthesiologists during tympanoplasties); King v. Williams, 279 S.E.2d at 620 (1981) ("Having
reconsidered and examined the viability of the 'locality' rule in South Carolina today, we hereby discard this rule and adopt
a standard of care not bound by any geographical restrictions.").
'[L]ocal practice within geographic proximity is one, but not the only factor to be considered. No longer is it proper to limit
the definition of the standard of care which a medical doctor or dentist must meet solely to the practice or custom of a
particular locality, a similar locality, or a geographic area.'
King v. Williams, 279 S.E.2d at 620 (1981), quoting Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973 (1967).
Therefore, Appellant's argument that the standard of care for physicians must be "adopted by South Carolina" or
promulgated as a state regulation must fail.
I find merit, however, in Appellant's argument that the Board erred in allowing the ASBP's Anorectic Usage Guidelines and
Bariatric Practice Guidelines to serve as the standard of care in this disciplinary proceeding. The qualifying language in the
ASBP Bariatric Practice Guidelines and Anorectic Usage Guidelines severely limits their utility as standards against which
physician conduct can be measured in a medical disciplinary hearing. The Bariatric Practice Guidelines contain the
following disclaimer:
These guidelines provide suggestions for the work-up and follow-up of the bariatric patient. They are not intended to
replace, and indeed cannot replace, the bariatrician's judgement regarding a particular patient's treatment. Neither are they
intended to represent legal requirements for providing 'good medical practice.' The bariatrician is the one most
capable of determining what is or is not appropriate for an individual patient.
(emphasis added). Additionally, the 1990 and 1996 Anorectic Usage Guidelines of the ASBP contain the following
disclaimer:
These Guidelines provide suggestions regarding the use of the anorectics but they are not intended to and indeed
cannot, replace the individual judgment of the treating bariatrician which remains and must remain paramount.
Thus, the bariatrician must not rely on these Guidelines, or on any other Guidelines to provide an infallible
blueprint for patient treatment. It is not the intent of these guidelines to limit the bariatricians' right to adjust the
therapy based on the patient's condition, medical problems or therapeutic response. These Guidelines are not
intended to provide specific requirements to be followed by the treating bariatrician.
(emphasis in original). (4) In light of these emphatic disclaimers, I find that it is not reasonable to accept these guidelines as
appropriate for use in determining the standard of care. Any reference to any of the ASBP guidelines in the Board's
Findings of Fact and Conclusions of Law shall be deleted.
Appellant, however, has failed to carry his burden of showing that the ASBP Standards of Practice were inappropriate for
use in determining the standard of care. See, e.g., First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514
(1994) (The burden is on the appellant to show error on the part of the trial court); Germain v. Nichol, 278 S.C. 508, 299
S.E.2d 335 (1983) (An appellant has the burden of providing the court with a sufficient record upon which to make a
decision). (5) Therefore, this tribunal can find no error in the Board's use of the ASBP Standards of Practice to evaluate
Appellant's conduct.
II. Substantial Evidence
Substantial evidence is not a mere scintilla of evidence nor evidence viewed blindly from one side, but is evidence which,
when considering the record as a whole, would allow reasonable minds to reach the conclusion reached by the agency.
Palmetto Alliance, Inc. v. S.C. Public Service Comm., 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984). The reviewing
tribunal cannot substitute its judgment for that of the Board upon a question as to which there is room for a difference of
intelligent opinion. See Chemical Leamen Tank Lines v. South Carolina Public Service Comm'n, 258 S.C. 518, 189 S.E.2d
296 (1972). Likewise, it is inappropriate to re-examine the credibility of the witnesses when conducting an appellate
review of a decision. See Armstrong v. Union Carbide, 308 S.C. 235, 417 S.E.2d 597 (Ct. App. 1992) (where the court
explained that the fact-finder "makes the final determination of witness credibility and the weight to be given evidence."). (6)
Evidence, however, cannot amount to "substantial evidence" to support the Board's decision if it is not fundamentally
reliable and probative. See, e.g., Mullinax v. Winn-Dixie Stores, Inc., 318 S.C. 431, 458 S.E.2d 76 (Ct. App. 1995) (While
a decision of an administrative agency will normally be upheld, the findings may "not be based upon surmise, conjecture, or
speculation, but must be founded on evidence of sufficient substance to afford a reasonable basis for it.") (emphasis
added); see also Glover v. Rhett Jackson Co. of Bush River Road, 274 S.C. 644, 267 S.E.2d 77 (1980) (affirming circuit
court's reversal of worker's compensation commission award where there was no competent evidence to support award). In
reviewing the Board's findings of fact, I conclude that several of them are based on surmise, conjecture or speculation and
are not based on any evidence of sufficient substance to afford a reasonable basis for them. Therefore, these findings must
be deleted or modified, as set forth below.
Finding of Fact # 3
Patient not appropriate candidate for medication
In this finding, the Board stated that in twelve cases, the patient was not an appropriate candidate for anorectic medication.
However, Dr. Hanlin, upon whose testimony the Board relied, expressly stated that he could not find any definitive
standards for this determination for the time period in question. Dr. Hanlin admitted that the standard he used in
determining that twelve of Appellant's patients were not appropriate candidates for medication were the standards in effect
at the time of the panel hearing. The only definitive testimony concerning the applicable standard of care was given by Dr.
Kyle, one of the Board's own expert witnesses. Dr. Kyle stated that he considered a patient to not be an appropriate
candidate for anorectic medication if he was below the ideal weight indicated by the Metropolitan Life tables in use during
the time period in question (1992 through 1998).
Given the standard of care as expressed by Dr. Kyle, eleven of the twelve patients cited by the Board as not being
appropriate candidates for medication were in fact appropriate candidates. These eleven patients were over their ideal
weight as expressed in the Metropolitan Life tables. (Transcript of panel hearing, page 103). Only one of the twelve
patients referenced by the Board (V.C.) was inappropriately prescribed anorectic medications as she was below her ideal
weight. Therefore, this part of Finding of Fact # 3 must be modified to reflect that in one case only was a patient not an
appropriate candidate for medication.
ASBP Standards and Guidelines not followed
The Board also stated that the "suggested standards and guidelines of the American Society of Bariatric Physicians" were
not followed in fifteen cases. The Board expressly relied on the testimony of Dr. Hanlin for this finding. However, Dr.
Hanlin's specific references to the ASBP Standards of Practice consisted of either a mislabeled reference to the ASBP
Anorectic Usage Guidelines or speculative conclusions regarding violation of the Standards. Notably, Dr. Hanlin's
conclusions were based solely on his review of 20 patient charts. Further, the Board's finding that ASBP guidelines were
not followed is improper, as these guidelines were never meant to serve as any kind of standard in medical disciplinary
hearings.
Comparison of ASBP standards to ASBP guidelines
The written document setting forth the ASBP Standards of Practice was never introduced into evidence. However, the
general requirements of the Standards of Practice can be gleaned from an examination of the ASBP guideline documents.
First, the Prologue to the 1990 Anorectic Usage Guidelines contains the following comparison of the Standards of Practice
with the Anorectic Usage Guidelines:
In 1974, the Society first published its Standards of Practice which speak primarily to an adequate patient work up.
Although the appropriateness of various therapies has been a primary concern of the Society and its members down through
the years, the Anorectic Usage Guidelines represents the Society's first formal set of guidelines regarding a particular
therapeutic modality.
(Complainant's Exhibit 4) (emphasis added). The Prologue to the 1996 Anorectic Usage Guidelines contains virtually the
same paragraph, except that the reference to "Standards of Practice" is changed to "Bariatric Practice Guidelines (revised in
1996)." (Respondent's Exhibit 1). Thus, by 1996, the former "Standards of Practice" became the "Bariatric Practice
Guidelines." The Bariatric Practice Guidelines contain the following disclaimer:
These guidelines provide suggestions for the work-up and follow-up of the bariatric patient. They are not intended to
replace, and indeed cannot replace, the bariatrician's judgement regarding a particular patient's treatment. Neither are they
intended to represent legal requirements for providing 'good medical practice.' The bariatrician is the one most
capable of determining what is or is not appropriate for an individual patient.
(emphasis added).
Based on the foregoing, it is reasonable to conclude that by 1996, there were no longer any ASBP standards that were
strictly binding on bariatricians. Further, it is reasonable to conclude that the former Standards of Practice addressed only
the initial patient work-up and, if similar in content to the Bariatric Practice Guidelines, no more than very general
requirements concerning medications and weight maintenance. (7) (See Respondent's Exhibit 1). It is unlikely, however,
that the former Standards of Practice contained a disclaimer similar to that in the 1996 Bariatric Practice Guidelines. In
fact, Dr. Hanlin quoted the Standards of Practice as stating that they were minimum standards. (Panel hearing transcript,
page 89, line 25-page 90, line 5).
Mislabeling of guidelines
On several occasions, Dr. Hanlin mislabeled information in the Anorectic Usage Guidelines as being part of the Standards
of Practice. Dr. Hanlin stated many times that the treatment of a particular patient did not meet the ASBP standards in that
Appellant continued the patient on medication after no significant clinical response (SCR) was achieved. For example, in
reviewing the chart of patient P.A., Dr. Hanlin stated that he felt that the ASBP standards were not met "because a
significant clinical response was not obtained, and, according to their standards of practice, anorectic medications should
be interrupted for a period between two and four weeks when that occurs . . . ." (Panel hearing transcript, page 53, lines 7-12)(emphasis added). However, the language regarding the continuation of medication as dependent on whether a patient
achieves SCR is found in the Anorectic Usage Guidelines. (Complainant's Exhibit 4 and Respondent's Exhibit 1).
Notably, the 1990 and 1996 Anorectic Usage Guidelines contain the following disclaimer:
These Guidelines provide suggestions regarding the use of the anorectics but they are not intended to and indeed
cannot, replace the individual judgment of the treating bariatrician which remains and must remain paramount.
Thus, the bariatrician must not rely on these Guidelines, or on any other Guidelines to provide an infallible
blueprint for patient treatment. It is not the intent of these guidelines to limit the bariatricians' right to adjust the
therapy based on the patient's condition, medical problems or therapeutic response. These Guidelines are not
intended to provide specific requirements to be followed by the treating bariatrician.
(emphasis in original).
Based on the foregoing, I find that it would be unreasonable to accept Dr. Hanlin's testimony that continuing a patient on
medication after no SCR is achieved violated the ASBP Standards of Practice or any other binding standard. At the most, a
deviation from the Anorectic Usage Guidelines was established, and the Guidelines themselves permit and even encourage
deviations when appropriate. (Complainant's Exhibit 4 and Respondent's Exhibit 1). More importantly, it was improper
for the Board to use the Guidelines as a standard for evaluating Appellant's conduct, given the ASBP's expressed intention
that these guidelines not be used as requirements.
Speculative conclusions
In any event, Dr. Hanlin's own testimony confirms that deviation from the ASBP guidelines may be appropriate. He
admitted that the ASBP literature states that in determining whether to interrupt medications after no SCR is achieved, the
bariatrician has to take into account the reason for a patient's weight gain (Panel hearing transcript, pages 100-101).
Further, Dr. Hanlin admitted that he did not know whether Appellant had explored the reason for weight gain with his
patients who did not achieve SCR, and that it is possible that Appellant merely failed to document such information.
(Panel hearing transcript, page 102). Furthermore, Dr. Hanlin admitted that it is proper to use anorectic medications for
weight maintenance and that Appellant's patient charts did not indicate whether a particular patient was trying to merely
maintain versus lose weight. Moreover, the Anorectic Usage Guidelines acknowledge that medication can be safe and
effective for years of maintenance. Additionally, the Guidelines acknowledge that long term treatment and follow-up of
months to years may be required for most patients.
Based on the foregoing, Dr. Hanlin's conclusion that Appellant should have interrupted medications for several patients is
speculative and not of sufficient substance to support a finding that the ASBP standards or guidelines were not followed.
Additionally, with reference to at least one patient, Dr. Hanlin testified that there was "no evidence that the patient was
counseled regarding the risks and benefits of anorectic drug usage, and there was no evidence that the patient was
counseled on the importance of diet and exercise, and no lab work was performed before starting the medication." (Panel
hearing transcript, page 71, lines 4-11). This testimony was representative of Dr. Hanlin's other conclusions on whether
Appellant's treatment met ASBP standards for several of the patients in question. (See Complainant's Exhibit 3).
The ASBP Standards of Practice require an adequate patient work-up. (See above discussion). The Standards may also
require counseling on diet and exercise and the risks and benefits of proposed treatment modalities. (See Respondent's
Exhibit 1 and above discussion). However, the lack of documentation of an initial patient work-up or patient counseling
does not necessarily lead to a foregone conclusion that these events did not take place. (8) To make such a conclusion
requires speculation and conjecture, which does not serve as evidence of sufficient substance to support a finding that the
ASBP Standards were not followed.
Based on the foregoing, Finding of Fact # 3 should be modified to delete the statement that the ASBP standards and
guidelines were not followed in fifteen cases.
Other standards of care not followed
The Board also found that Appellant failed to exercise the reasonable degree of care and skill expected of a physician
practicing in South Carolina in that he (1) failed to review weight loss adjuncts including diet, exercise, and behavioral
modification; (2) continued to prescribe anorectic medications to patients even though they had gained weight; and (3)
failed to initiate drug-free intervals where the patients would be taken off of the anorectic medication. This finding was
expressly based on Dr. Hanlin's findings and conclusions regarding each of the 20 patient charts he examined. For the
reasons that follow, this part of Finding of Fact # 3 must also be deleted.
Failure to review weight loss adjuncts
Dr. Hanlin's conclusion that Appellant failed to review weight loss adjuncts is based solely on his review of Appellant's
patient charts. Dr. Hanlin concluded that because there was no documentation in the charts that Appellant had reviewed
weight loss adjuncts with his patients, Appellant must have failed to do so. This conclusion is pure conjecture.
Continuation of medication without drug-free intervals
Dr. Hanlin testified that on several occasions Appellant noted in patient charts "SPCM," which meant "satisfactory
progress, continue medication," even though the patient had gained weight. Dr. Hanlin stated that in his opinion, it is not
satisfactory progress for an obese patient to gain weight from one visit to another. However, he qualified this opinion by
indicating that at times a patient being treated for weight loss may gain weight for a justifiable reason and that the reason
should be noted in the patient visit. (Panel hearing testimony, page 54, line 7-page 55, line 5). Dr. Hanlin concluded that
since Appellant did not document the reason for a patient's weight gain, Appellant was not paying attention to the
individual patient. This conclusion is purely speculative. If Appellant failed to note the reason for a patient's weight gain
in the chart, the only problem that is supported by evidence of sufficient substance is Appellant's failure to provide
adequate documentation in his patients' charts. It is entirely possible that there were good reasons for a patient's weight
gain in each of the cases cited by Dr. Hanlin and that they were merely undocumented.
Conclusion on Finding of Fact # 3
In summary, Finding of Fact # 3 should be modified as follows:
The State presented expert testimony and a written review by the expert of a number of the Respondent's patient records.
Bariatric practice is not a recognized medical specialty. The State's expert, a board certified family practitioner, was
properly qualified in this field as the treatment of obesity is an accepted facet of family practice. The State's expert
concluded, and we concur, that the Respondent's practice was deficient as follows: the documentation in the medical
records was inadequate in 19 of the 20 cases (specifically, these 19 cases were: P.A., B.B., V.C., L.C., B.C., S.C., B.D.,
D.H., G.H., C.H., W.K., C.O., A.P.. J.S., M.S., R.S., D.B., N.T., and B.V.), and the patient was not an appropriate
candidate for controlled medication in 1 of the 20 cases (V.C.).
Finding of Fact # 4
Finding of Fact # 4 echoes Dr. Hanlin's testimony regarding the "SPCM"entries in patient charts. The Board states in this
finding that
[p]eriods of weight gain should have prompted a review of weight loss adjuncts such as diet, exercise, and behavioral
modification, and should have prompted drug-free intervals. There is no documentation that [Appellant] did either. . .
Adequate weight loss in the patient makes the possibility of illegal diversion of drugs much less likely. A lack of weight
loss or weight gain is a red flag that the patient may be diverting his anorectic medication to illegal use. These concepts are
important parts of the acceptable standard of care for the use of controlled anorectic medication. [Appellant] violated these
concepts and the standard of care in the cases at issue.
There is no evidence of sufficient substance to support the finding that Appellant violated the "concepts" cited by the
Board. To conclude that Appellant did not review weight loss adjuncts based on his failure to provide documentation of
any such review is purely speculative. Further, it is entirely possible that there were good reasons for a patient's weight
gain in the cases cited by Dr. Hanlin and that these reasons were merely undocumented. Therefore, all of Finding of Fact #
4 shall be deleted.
Finding of Fact # 7
The Board found that Appellant at times was seeing as many as 75 to 80 patients per day. The Board further stated that this
patient load contributed to the deficiencies in Appellant's practice, "as appropriate standards of treatment could not be
maintained at the pace necessary to see this many patients." The patient sign-up sheets admitted into evidence
unequivocally establishes that Appellant was seeing 75 to 80 patients per day for a period of time. However, some or all of
these patients could have been at Appellant's office for return visits rather than initial visits. In fact, the Board's own expert
witness stated that these were return visits. (Complainant's Exhibit # 3, page 5). Further, Dr. Hanlin admitted that it would
be possible to provide focused care in an adequate fashion with this volume of patients. (Complainant's Exhibit # 3, page
5). Moreover, the Board's other expert witness, Dr. Kyle, admitted that the nature of a patient visit to a bariatrician is
different from the nature of a visit to a family practitioner. Therefore, the remainder of Finding of Fact # 7 is based purely
on conjecture and not on any evidence of sufficient substance in the record. Finding of Fact # 7 shall be deleted in its
entirety.
Finding of Fact # 8
Based on the only reliable standard of care presented to the Board, only one patient record established that the patient was
not an appropriate candidate for anorectic medication (V.C.) (see above discussion of Finding of Fact # 3). Therefore, all
of Finding of Fact # 8 shall be deleted.
Finding of Fact # 9
There was no evidence of sufficient substance to support the Board's findings that Appellant failed to follow ASBP
standards. Further, it was improper for the Board to use ASBP guidelines to evaluate Appellant's conduct. Therefore,
Finding of Fact # 9 is inappropriate and shall be deleted.
Finding of Fact # 11
Appellant challenges this Finding as not being supported by substantial evidence. However, Dr. Kyle testified as to the
potential for patient dependence on anorectic medications. Further, Dr. Hanlin testified regarding the potential for patient
abuse of anorectic medications for financial gain and the potential for harmful side effects of anorectic medications.
Moreover, there is sufficient evidence in the record that V.C. was not an appropriate candidate for anorectic medications
and that she lost too much weight while on the medication. Thus, Finding of Fact # 11 is supported by evidence of
sufficient substance. Given that this evidence has adequate reliability and probative value, it is not for this tribunal to
second guess the Board's determination of the weight to be given this evidence. See Armstrong v. Union Carbide, 308 S.C.
235, 417 S.E.2d 597 (Ct. App. 1992).
Conclusion of Law # 2.A(1)
Based on the above modifications to the Board's findings of fact, Conclusion of Law 2.A.(1) must be modified to delete
references to those findings not supported by substantial evidence. Conclusion of Law 2.A.(1) is modified as follows:
A. The Respondent has violated S.C. Code Ann. § 40-47-200(F)(7), in that he has violated the following Principle of
Medical Ethics adopted by the Board:
(1) Regulation 81-60(A), in that he did not provide competent medical service, as evidenced by his failure, describe above,
to adequately document medical findings and treatment. The Board reached its determination that the regulation had been
violated by the Respondent based upon its consideration of all of the findings of fact recited above, which in summary are:
his failure to adequately document medical findings and treatment and his prescribing anorectic medications to one patient
even though the patient did not meet the requirements for controlled anorectic use. However, the Board decided that the
major factor which demonstrated a violation of the regulation was the serious deficiency of the Respondent's
documentation in a very high risk field, the treatment of obesity with controlled anorectic drugs. As stated above, the
patient records are monotonous and documentation is sparse other than pre-printed checklists. This documentation was
determined to be so poor as to compel a decision that the Respondent had not provided competent care in the cases at issue.
ORDER
IT IS THEREFORE ORDERED that this case is REMANDED to the Board with instructions to modify the December
19, 2000 Final Order on Remand as instructed in this Order.
AND IT IS SO ORDERED.
________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
SEPTEMBER 24, 2001
COLUMBIA, SOUTH CAROLINA
1. In his brief, Appellant has raised twenty-five issues on appeal. All of these twenty-five issues essentially fall into one of
two categories under § 1-23-380(A)(6); Appellant alleges that the Board's order is affected by several errors of law and that
various findings of fact are "clearly erroneous in view of the reliable, probative and substantial evidence on the whole
record."
2. See also McGee v. Bruce Hospital System, 321 S.C. 340, 468 S.E.2d 633 (1996) (although the physician was not a
surgeon, he could testify as an expert on the standard of care in the placement of a catheter by a surgeon); Howle v. PYA
Monarch, Inc., 288 S.C. 586, 344 S.E.2d 157 (Ct.App.1986)(a psychologist was qualified as an expert witness to testify as
to diagnosis, prognosis, and causation of mental and emotional disturbance in a personal injury action); Daniels v. Bernard,
270 S.C. 51, 240 S.E.2d 518 (1978)(in a personal injury action, a chiropractor was competent to testify as a medical expert
to the extent of his knowledge and experience); Sandford v. Howard, 161 Ga.App. 495, 288 S.E.2d 739 (1982)(an
orthopaedist was competent to testify against a podiatrist where the orthopaedic and podiatric methods of treatment were
the same and the witness had knowledge of the procedure used by the podiatrist); Avret v. McCormick, 246 Ga. 401, 271
S.E.2d 832 (1980)(a nurse was competent to testify in a medical malpractice action against a physician as to the standard of
care in keeping sterile a needle used to draw blood).
3. Appellant cites Dr. Hanlin's own statement that he was not an expert in bariatrics. (Panel Hearing transcript, pages 80-81). Dr. Hanlin made this statement long after he was qualified as an expert in the treatment of obesity and near the end of
his direct testimony. In light of the fact that bariatrics is not a recognized medical specialty, the Board as finder of fact
could have interpreted Dr. Hanlin's statement to mean that he was not a "specialist" in that field. This would in no way
diminish his qualification to testify as an expert in the treatment of a disease that is properly within the scope of family
practice.
4. This disclaimer is from the 1996 Anorectic Usage Guidelines. The disclaimer in the 1990 Anorectic Usage Guidelines is
virtually identical to the 1996 disclaimer.
5. The Standards of Practice were never introduced or admitted into evidence except in a limited fashion through Dr.
Hanlin's testimony. Therefore, this tribunal is unable to determine whether qualifying language similar to that found in the
Bariatric Practice Guidelines or the Anorectic Usage Guidelines was also included in the Standards of Practice.
6. Further, the trier of fact is not compelled to accept an expert's testimony, but may give it the weight and credibility he
determines it deserves. Florence County Dep't of Social Services v. Ward, 310 S.C. 69, 425 S.E.2d 61 (Ct. App. 1992). He
also may accept one expert's testimony over that of another. S.C. Cable Television Ass'n v. Southern Bell, 308 S.C. 216,
417 S.E.2d 586 (1992).
7. For example, "The bariatrician should weigh the potential benefits and risks of any medication or modality used."
(Respondent's Exhibit 1).
8. Dr. Hanlin also noted that medications were continued for two patients for two months after the office was notified that
the patients might be selling their drugs. (Complainant's Exhibit 3). However, the lack of documentation of any
confrontation of the patients concerning possible abuse does not necessarily lead to a foregone conclusion that Appellant
did not engage in such a confrontation or successfully resolve the issue. Such a conclusion would be speculative. |
