SC Administrative Law Court Decisions

For the reasons explained in this decision, the Board's Supplemental Order on Remand of October 22, 2001 is AFFIRMED.

A brief history is necessary to understand the current posture of this matter.

In a Formal Complaint of July 7, 1998, the State Board of Medical Examiners (Board) received allegations that Roger E. Adler, M.D. (Dr. Adler) violated S.C. Code Ann. §§ 40-47-200(F)(7), (8), (11), (12) (Supp. 1997) along with various provisions of Regs. 81-60. Among other allegations, the complaint alleged that Dr. Adler had improper sexual relations with two patients (Patient E, a former patient at the time of the relationship; and Patient F, a current patient at the time of the relationship) and that he prescribed a controlled substance to another individual (Patient D) in the absence of a physician-patient relationship.

A panel of the Medical Disciplinary Commission heard the matter in an evidentiary hearing and issued its report on June 21, 1999. The report found Dr. Adler guilty of inappropriate sexual relations with Patient E and Patient F and of prescribing a controlled substance to Patient D in the absence of a physician-patient relationship. The matter came to the Board in a hearing on July 20, 1999 with the Board subsequently issuing its Final Order on August 5, 1999. The Final Order adopted the Panel's findings and conclusions and revoked Dr. Adler's medical license.

On September 7, 1999, Dr. Adler filed a Notice of Appeal with the Administrative Law Judge Division (ALJD) resulting in a hearing followed by a subsequent order of May 26, 2000 in which Judge Carolyn Matthews affirmed the Board's decision to revoke Dr. Adler's license. Dr. Adler appealed Judge Matthew's decision on June 26, 2000 by filing a Notice of Appeal with the Circuit Court.

Following the denial of several motions made by Dr. Adler, the Circuit Court heard the appeal in a hearing on April 27, 2001 before Judge James E. Lockemy. Judge Lockemy reviewed the findings involving Patients D, E, and F and affirmed those findings pertaining to Patient D ⁽¹⁾ and Patient F. However, Judge Lockemy ordered a remand to the Board as to Patient E. In particular, Judge Lockemy held that "[e]xpert testimony was required to establish professional misconduct with respect to a former patient (Patient E)." Then, in addressing the Board's remand duties, Judge Lockemy stated the following:

This Court is not remanding the matter for a trial de novo; however, to the extent that the existing record may be lawfully supplemented, the Board may wish to receive expert testimony regarding the standards applicable to a sexual relationship with the former patient in 1988.

Further, Judge Lockemy ordered the Board on remand to revisit the issue of the sanction imposed.

Whether it bases its decision solely on the found misconduct of Patient F or if it concludes after further hearing and evidence that misconduct occurred with Patient E, the Board is directed, to consider all relevant facts when determining what sanction, if any, is appropriate in connection with the consensual relationships in 1985 and/or 1988.

The Board conducted a remand hearing on September 12, 2001. At the remand hearing, Dr. Adler objected to the receipt of any additional evidence on the ground that to receive such would improperly allow the prosecution to remedy a failure of proof from the original hearing. The Board denied the motion and received evidence from two expert witnesses on the ethical standard applicable to sexual relations with a former patient by a physician.

"After receiving expert testimony from two witnesses, [and] a review of the whole record," the Board issued a Supplemental Order on Remand on October 22, 2001. The Supplemental Order held that the expert testimony established that Dr. Adler's sexual relationship with Patient E violated S.C. Code Ann. § 40-47-200(F)(7). Further, the Board held that Dr. Adler's sexual relationship with a former patient and with a then current patient warranted revocation of Dr. Adler's medical license. Dr. Adler's appeal of the Supplemental Order has now brought the matter to the Administrative Law Judge Division.

Dr. Adler makes the following arguments:

1. The Board erred in finding Dr. Adler violated his ethical obligations to Patient E since the finding is based upon expert testimony improperly received in a second hearing.

2. The Board erred in finding Dr. Adler violated his ethical obligations to Patient F since no expert testimony was received on the issue of the ethical standard applicable to sexual relations between a physician and a current patient.

3. Even if the Board's findings properly establish that Dr. Adler violated his ethical obligations to both Patient E and Patient F, the sanction imposed by the Board is improper.

4. The Board at its remand hearing acted beyond the scope of its authority by the mere act of receiving evidence since the authority to receive evidence is vested in the Medical Disciplinary Commissioners and, further, by receiving such evidence, the Board violated §40-47-211 by serving both as commissioners and Board members.

5. The Board's decision is not supported by substantial evidence.

In his remand order, Judge Lockemy made two limitations on the remand proceedings relative to the receipt of additional testimony. First, he stated that no "trial de novo" would be held before the Board. A trial de novo means a trial that is to begin again "as if no proceeding whatsoever had been had in the first instance." Nat'l Health Corp. v. DHEC, 298 S.C. 373, 378, fn. 1, 380 S.E.2d 841, 844, fn. 1 (Ct.App. 1989). Thus, on remand, Judge Lockemy did not intend for the Board to start anew. Rather, the basic intent was for the Board to examine the record already made. However, that intent was directly altered by a second limitation.

In a second limitation, Judge Lockemy explained that "to the extent that the existing record may be lawfully supplemented, the Board may wish to receive expert testimony regarding the standards applicable to a sexual relationship with the former patient in 1988." Emphasis added. In other words, supplementing the record was permitted if the Board decided such was desirable and if such addition could be lawfully accomplished. Since the Board took additional testimony, it concluded such was desirable. Thus, the issue is whether the supplemental evidence could be lawfully received.

1. Prohibition on Receiving Additional Evidence

No blanket prohibition denies the receipt of supplemental evidence as part of a remand to an administrative body. On the contrary, the taking of additional testimony on remand is proper so long as such is allowed by the order of the remanding judge.

In Parker v. South Carolina Public Service Com'n, 342 S.E.2d 403 (1986) a remand order was under consideration with the order being "to the [PSC] for such further consideration as may be proper in the light of the views expressed herein." The remand order required an interpretation of the word "consideration" and resulted in the court holding that "[t]he use of the word 'consideration' reveals that we intended the Commission merely to review the evidence which was admitted in the record of the hearing in 1980, not hold a new hearing for the admission of additional evidence." Parker v. South Carolina Public Service Com'n, 342 S.E.2d 403 (1986). Rather than a blanket prohibition on taking additional evidence, the court held that "[u]nless this Court provides for the taking of additional evidence, no party may afford itself two bites at the apple. It was improper for the Commission to consider additional evidence." Emphasis added. Thus, the Supreme Court held that additional evidence can be taken if the remanding court provides for the taking of such evidence.

The holding of Parker was reaffirmed in Piedmont Natural Gas Co., Inc. v. Hamm, 301 S.C. 50, 389 S.E.2d 655 (1990). That case also required interpreting the meaning of the words used in a remand order. In that case, the remand order directed the PSC to "substantiate the record." The court held that the phrase was not intended to convey the idea that the PSC on remand should take additional evidence. Instead, the court cited to Parker and reaffirmed that "[u]nless this Court provides for the taking of additional evidence, no party may afford itself two bites at the apple." Emphasis added. That holding is still the law. See Porter v. South Carolina Public Service Com'n, 507 S.E.2d 328, 338, 333 S.C. 12, 32 (1998).

In the instant case, Judge Lockemy specifically provided for the taking of additional testimony.

[T]he Board may wish to receive expert testimony regarding the standards applicable to a sexual relationship with the former patient in 1988.

[I]f it concludes after further hearing and evidence that misconduct occurred with Patient E, the Board is directed, to consider all relevant facts when determining what sanction, if any, is appropriate

Thus, the Board's actions are not contrary to the dictates of Parker, Piedmont, or Porter. Therefore, general permission to take additional evidence having been granted by the remanding judge, the issue is whether Judge Lockemy's "lawfulness" limitation has been satisfied so that the additional evidence was properly received.

2. The Lawfulness of the Additional Testimony

Judge Lockemy gave permission to the Board to receive expert testimony on remand "to the extent that the existing record may be lawfully supplemented." Dr. Adler argues that receiving additional testimony is unlawful because doing so operates as a forbidden opportunity to cure a party's failure of proof at the initial hearing. Dr. Adler supports his position by flatly asserting a "second chance to prove the case is not permissible." However, no citation to authority is provided for the proposition.

a. Remands in General

Remands for further proceedings are permissible for a variety of purposes including granting "a new trial, the introduction of new evidence, clarification of a lower court's ruling, joinder of additional parties, or entry of additional findings. 5 Am. Jur. 2d Appellate Review § 591 (1995). Moreover, the Administrative Procedures Act (APA) specifically permits a court to "remand [a] case [to the agency] for further proceedings." S.C. Code Ann. § 1-23-380 (A)(6) (Supp. 2000).

Contrary to the blanket prohibition argument pressed by Dr. Adler, the available authority in South Carolina suggests that allowing one to prove an issue at a remand hearing when that issue was not successfully proven at the initial hearing is not per se unlawful. Indeed, instead of a blanket prohibition on second chances, proving an issue at a remand proceeding is allowed on a case by case basis when doing so furthers the interests of arriving at a just result.

b. Need for Just Results

"The ultimate purpose of a trial is to ascertain the truth and do justice under the law." Harper v. Bolton, 124 S.E.2d 54 (1962), dissent by Justice Bussey. So long as allowed by the remand judge, doing justice does not forbid one from proving an issue at a remand hearing when that issue was not proven at the initial hearing. For example, the Court of Appeals reversed a lower court's decision on attorney fees in Cisson Const., Inc. v. Reynolds & Associates, Inc., 311 S.C. 499, 429 S.E.2d 847 (Ct.App. 1993). Conceivably, given the reversal, the Court could have denied the award of attorney fees since the fees were not properly proven. However, the Court did not so rule. Instead, the remand had the effect of allowing the party seeking the attorney fees to have a second opportunity to prove the very issue that was unsuccessfully proven at the first hearing.

Because the master did not make specific findings on the factors enumerated in Collins v. Collins, 239 S.C. 170, 179, 122 S.E.2d 1, 5 (1961), and because the record is otherwise insufficient, we reverse the master's award of attorney fees. On remand, the master may take additional evidence in regards to the specific factors enumerated in Collins and shall make specific findings of fact as required by Blumberg. (footnotes omitted.).

Cisson Const., Inc. v. Reynolds & Associates, Inc., 311 S.C. 499, 429 S.E.2d 847 (Ct.App. 1993)

Obviously, the mere fact that a remand will allow a party to prove an issue not properly proven prior to the remand does not make the receipt of such testimony unlawful.

Of particular interest is U.S. Fidelity & Guaranty Co. v. City of Newberry, 257 S.C. 433, 186 S.E.2d 239 (1972).

The record fails to show, however, that any objection was interposed to the case being heard and disposed of on the motion for summary judgment. As far as the record shows, the defendants failed to make a showing, pursuant to Rule 44d, that there was any genuine issue of fact for trial. It would, therefore, appear that this issue has not been properly preserved for review by this Court. It appearing, however, from the record that approximately seventy other municipalities in South Carolina impose somewhat comparable business license taxes on fire and casualty insurers, thus rendering this case one of grave public importance, a majority of the members of the Court have concluded to remand this cause for the purpose of according the defendants a trial in the course of which the parties may fully develop, by evidence, any factual issues having relevance to the ultimate question of whether or not the City had any constitutionally rational basis for the classification and rate here under attack. In remanding the cause for trial, however, we intimate no opinion whatever as to the relevance, force or justifying effect of the facts which the City asserts raise an issue of fact as to the ultimate question involved. The effect of our holding is simply to give the City of Newberry an opportunity upon trial to justify, if it can, the classification and rate of tax as being constitutionally permissible.

Accordingly, in U.S. Fidelity & Guaranty Co. v. City of Newberry, despite the fact that the losing party below "failed to make a showing, pursuant to [summary judgment rules], that there was any genuine issue of fact for trial," that party was still allowed to prove its case at a remand hearing because the remand court believed that such a result was a just result. Again, such a remand does not produce unlawful testimony.

In the instant case, Judge Lockemy, as the remanding judge, found that the Board, the adjudicating body below, applied an improper standard of proof as to Patient E. He further concluded that if the Board chose to pursue finding the truth as to Dr. Adler's actions relative to Patient E, the Board was required to do so by applying a proper standard of proof; i.e., expert testimony for alleged ethical violations as to a former patient. No denial of justice resulted to Dr. Adler by such a remand since both he and the State were allowed to (and in fact did) present expert testimony for the Board's evaluation. From that testimony, the Board was then able to reach its decision premised on a proper standard of proof applicable to each party. Accordingly, since Judge Lockemy's criteria for receipt of the expert testimony by the Board was only that such be lawful and since no showing has been made that receiving the testimony was unlawful, the Board properly received the additional evidence as to Patient E.

Notwithstanding Dr. Adler's allegations as to Patient E, Dr. Adler also argues the Board erred in finding a violation of his ethical obligations to Patient F. The argument as to Patient F is that no expert testimony was received establishing the ethical standard applicable to sexual relations between a physician and a current patient. However, under the case as presented, this issue is not before me.

Judge Lockemy held "[t]he Board's findings and conclusions regarding Patient F are affirmed." He reached this conclusion after finding that "[i]n regard to Patient F, it does not require expert testimony to determine that beginning a sexual relationship with a patient during treatment is a deviation from the generally recognized practices and procedures which would be exercised by a competent physician in any field but especially where the patient is receiving psychiatric treatment." Further, Judge Lockemy did not remand to the Board with instructions to give any further consideration to whether a violation occurred as to Patient F. Thus, the issue of whether expert testimony was needed to establish the ethical standard applicable to sexual relations between a physician and a current patient was not before the Board on remand and is not now before me.

The appropriateness of the sanction was before the Board and likewise is before me since Judge Lockemy specifically required the remand Board to reexamine the sanction.

Whether it bases its decision solely on the found misconduct of Patient F or if it concludes after further hearing and evidence that misconduct occurred with Patient E, the Board is directed, to consider all relevant facts when determining what sanction, if any, is appropriate in connection with the consensual relationships in 1985 and/or 1988.

Dr. Adler argues that even if the Board's findings properly establish that he violated his ethical obligations to both Patient E and Patient F, the sanction imposed by the Board is "too severe in light of the conduct involved, the age of the allegations, and in light of sanctions imposed in similar cases, and was arbitrary and capricious." Thus, the arguments are that the sanction is improper since it is arbitrary and, if not arbitrary, the sanction is improper since it is inconsistent with other sanctions, and, if neither of those, the sanction is improper since it is too severe in light of the circumstances.

1. Arbitrary

After reviewing the record and the arguments, I do not find that the Board's sanction is arbitrary.

A decision to impose a revocation sanction is arbitrary if the decision is without a rational basis, or is not based on an exercise of judgment, or is reached without governing principles, or is devoid of fixed rules or standards. Deese v. South Carolina State Bd. of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct.App. 1985). Indeed, for medical licenses, a presumption exists that if "the sanctions [are] within those established by law, [the physician's] contention that they [are] arbitrary and capricious is without merit." Id.

Here, the sanction is within those allowed by law since a revocation is a permissible sanction for the Board to impose. S.C. Code Ann. 40-47-200(A). Further, the Board's decision is rationally based since it is based upon a finding that Dr. Adler's "sexual relationships with a patient and a former patient are extremely serious infractions and warrant severe sanction." (R. p. 14). In reaching its decision, the findings made by the Board required it to exercise judgment with that judgment based upon the application of principles governing physician ethics and standards governing the application of those ethics to patient responsibilities. Indeed, the very purpose of the remand hearing was to establish the standards governing sexual relationships with a former patient and, having identified those standards, to require reasoned judgments on whether the evidence supported a violation of those standards. Having met the purpose of the remand, the decision to impose a sanction of revocation is not arbitrary.

2. Sanction Inconsistent with Other Sanctions

Dr. Adler argues the revocation is improper since it is inconsistent with other Board sanctions imposed on similarly situated physicians. He attempts to establish this position by producing a chart in his Appellant Brief purporting to contain sanctions imposed by the Board on 23 physicians from 1995 to 2001. However, these factual allegations of sanctions imposed upon allegedly similarly situated physicians were not received or considered by the Board below and do not form a part of the record on appeal. S.C. Code Ann. §1-23-320(g)(2) ("The record in a contested case shall include: evidence received or considered."). Thus, the chart is outside the record and cannot be considered. S.C. Code Ann. § 1-23-380(A)(5) ("The review shall be . . . confined to the record."); § 1-23-600(D) ("An administrative law judge of the division also shall preside over all hearings of appeals from final decisions of contested cases before professional and occupational licensing boards or commissions within the Department of Labor, Licensing, and Regulation pursuant to Section 1-23-380."); also see Gale v. State Bd. of Medical Examiners of South Carolina, 282 S.C. 474, 320 S.E.2d 35 (Ct.App. 1984) (where the argument that "the sanction of revocation is unprecedented for similar violations" could not be addressed since the record did not contain evidence of prior actions by the Board in other cases).

3. Severity of Sanction

Dr. Adler argues that the Board failed in its evaluation of the factors required for imposing a sanction. I disagree.

The methodology for imposing a sanction upon a physician is well established.

[T]he Board must insure that the sanction imposed is consonant with the purpose of these proceedings. "The revocation of a physician's license, however, is designed not to punish the physician . . . but to protect the life, health and welfare of the people at large. . . ." [Internal citations omitted].

It is therefore an essential element of the legislatively designed administrative regulatory scheme that the Board, in a disciplinary proceeding, scrupulously consider all factors relevant to continued licensure. It must, therefore, meticulously weigh the public interest and the need for the continued services of qualified medical doctors against the countervailing concern that society be protected from professional ineptitude. (Emphasis supplied). In re Polk License Revocation, 90 N.J. 550, 579, 449 A.2d 7, 22 (1982).

Wilson v. State Bd. of Medical Examiners, 305 S.C. 194, 406 S.E.2d 345 (1991)

Thus, the Board must impose a sanction that balances the public's need for services against the public's need for protection.

The Board performed its duty of balancing services against protection. The record establishes that the "sanction imposed is designed not to punish the physician, but to protect the life, health, and welfare of the people at large." (R. p. 14). Further, the sanction was reached "after weighing the public interest and the need for the continued services of qualified physicians against the countervailing concern that society is protected from professional ineptitude and misconduct." (R. p. 14). Therefore, rather than a failure of the Board to perform its duty, Dr. Adler essentially argues that the Board failed to give appropriate consideration to the extenuating circumstance (e.g., the consensual nature of the relationship, the age of the allegations, the lack of further complaints, etc.) and therefore erred in its discretionary choice of sanction.

Plainly, when the Board imposed the license revocation as a sanction in this case, the Board exercised discretion. See Gale v. State Bd. of Medical Examiners of South Carolina, 282 S.C. 474, 320 S.E.2d 35 (Ct.App. 1984) (where the physician sought to establish that the sanction of revocation was as an abuse of discretion). Dr. Adler's challenge to that exercise of discretion requires showing an improper use of discretion. S.C. Code Ann. § 1-23-380(A)(6)(f) (the ALJ "may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are: characterized by abuse of discretion or clearly unwarranted exercise of discretion.").

"An abuse of discretion occurs when a court's decision is controlled by an error of law or is without evidentiary support. Mictronics, Inc. v. South Carolina Department of Revenue, ___ S.C. ___, 548 S.E.2d 223, (Ct.App. 2001). Here, no error of law accompanied the sanction imposed. Rather, as previously discussed, revocation is a valid sanction authorized by statute. S.C. Code Ann. § 40-47-200(A). Further, the sanction is not devoid of evidentiary support. On the contrary, the evidence establishes sexual relations with a former patient as well as with a current patient with both relationships constituting violations of Dr. Adler's ethical responsibilities. After evaluating the circumstances of both incidents, the Board found the violations to be "extremely serious infractions [which] warrant severe sanction." (R. p. 14). Thus, the Board's revocation decision is not without evidentiary support, and, therefore, the revocation decision will not be reversed or modified. ⁽²⁾

Dr. Adler argues that the Board operated under unlawful procedures at the remand hearing in two respects. First, the Board acted beyond the scope of its authority when it received evidence since the authority to receive evidence is vested in the Medical Disciplinary Commissioners and not in the Board. Second, the Board violated §40-47-211 by serving simultaneously as commissioners and Board members. I disagree with both positions.

1. Scope of Authority

Dr. Adler argues that the remand Board acted beyond its scope of authority when it received evidence since the authority to receive evidence is vested in the Medical Disciplinary Commissioners and not in the Board. The argument fails since the Board is statutorily authorized to hear evidence once a panel of the Medical Disciplinary Commissioners has provided a hearing to the physician. See S.C. Code Ann. § 40-47-200(C)(2) ("Upon consideration of the report of the panel and of the showing made to the board, the board may: (1) refer the matter back to the panel for further hearing; (2) order a further hearing before the board; or (3) proceed upon the certified report of the prior proceedings before the panel." (Emphasis added)).

The use of the term "hearing" in § 40-47-200(C)(2) carries the common definition of "[a] proceeding of relative formality . . . generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented, and in which parties to a dispute have a right to be heard. Black's Law Dictionary (6th Ed.1990). The common definition is the intended meaning in § 40-47-200(C)(2) since the statute authorizes the Board to "refer the matter back to the panel for further hearing." (Emphasis added). All acknowledge that the "further hearing" before the panel is evidentiary. See § 40-47-211. Thus, allowing the Board to also hold a "further hearing" expresses a clear intent that the same evidentiary hearing can be held by the Board if the Board so directs. Busby v. State Farm Mut. Auto. Ins. Co., 280 S.C. 330, 312 S.E.2d 716 (Ct. App. 1984) ("Where the same word is used more than once in a statute it is presumed to have the same meaning throughout unless a different meaning is necessary to avoid an absurd result.").

In the instant case, Dr. Adler received a hearing before a panel of the Medical Disciplinary Commission on June 7 and 8, 1999. Thus, having received the panel's report, no prohibition exists on the ordering of a "further hearing" before the Board to receive additional testimony. Accordingly, the Board did not act beyond the scope of its authority when it received additional evidence at the remand hearing.

2. Simultaneous Service As Commissioners and Board Members

Dr. Adler argues the Board violated §40-47-211 since Board members at the remand hearing served simultaneously as both Board members and as commissioners. The argument lacks merit.

No doubt exists that "members appointed to the board may not simultaneously serve as a commissioner." S.C. Code Ann. § 40-47-211. However, at the remand hearing, no Board member served simultaneously as both a commissioner and as a Board member. Rather, the Board acted as "the Board" under its authority to "order a further hearing before the board" as provided by S.C. Code Ann. § 40-47-200(C)(2). Indeed, the Board exercised its authority consistent with Judge Lockemy's instructions holding that "the matter is remanded to the Board for further proceedings." While such instructions would have allowed the Board to return the matter to the panel, not having done so does not convert a Board member into a commissioner.

1. Introduction

Judge Lockemy affirmed "the Board's order in this matter as to Patient F" and held that "[t]he Board's findings and conclusions regarding Patient F are affirmed." Thus, apart from the duty to reexamine the sanction, the only matter on remand related to Patient E. Accordingly, the issue on appeal to the ALJ is whether substantial evidence exists to support the Board's findings that Dr. Adler violated his ethical responsibilities to Patient E. Dr. Adler argues the Board's decision is not supported by substantial evidence. I disagree.

2. Applicable Law

The substantial evidence issue is relevant here since an appellate body may reverse an agency's decision if the decision is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. S.C. Code Ann. § 1-23- 380(A)(6)(e) (Supp. 2000). In determining if substantial evidence exists, the reviewing body does not look for "a mere scintilla of evidence nor evidence viewed blindly from one side, but [rather looks for ] evidence which, when considering the record as a whole, would allow reasonable minds to reach the conclusion that the agency reached." Palmetto Alliance, Inc. v. South Carolina Pub. Serv. Comm'n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984).

When the record is reviewed in such a light, the court must be mindful that the possibility of drawing two inconsistent conclusions from the evidence does not mean the agency's conclusions are unsupported by substantial evidence. Id. Finally, in conducting its review of the evidence, the appellate body "shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." S.C. Code Ann. § 1-23-380(A)(6) (Supp.2000). In applying this law to the instant case, substantial evidence exists which establishes the ethical standard applicable to sexual relations between a former patient and a physician and which establishes that the ethical standard was violated.

3. Substantial Evidence in the Record

From the spring of 1985 through approximately 1988, Dr. Adler treated Patient E after she had attempted suicide. Patient E was sixteen (16) years old at the time treatment commenced. (P.H. Day 2, p. 12. ln. 17-25). The testimony established that Dr. Adler made sexual advances toward Patient E while she was at his office for treatment. (P.H. Day 2, pp. 13-14). However, the sexual relationship did not begin until after Dr. Adler had transferred Patient E to the care of another physician. (P.H. Day 2, p. 14, ln. 18-25). At all times during the sexual relationship, Dr. Adler knew that Patient E was still under psychiatric care for continuing mental problems. (P.H. Day 3, p. 260, ln. 13-25). Dr. Adler instructed Patient E not to discuss their affair with others. (P.H. Day 2, p. 17, ln. 10-14).

Against this backdrop, the Board heard expert testimony on the ethical standard applicable to a sexual relationship between a former patient and a physician. In this case, substantial evidence exists establishing that Dr. Adler's sexual conduct with Patient E was unethical under the standards applicable at the time. The Board heard testimony from two experts concerning the ethical standards applicable to sex with former patients in 1988, the time of the offense. Dr. Harold C. Morgan testified for the State, and Dr. Elin Barth Berg testified for Dr. Adler.

Dr. Morgan reviewed the transcripts of the testimony of Patient E from the earlier panel hearing, the pleadings from the matter, and the American Psychiatric Association Principles of Ethics. (R. pp. 48-49). On the issue of sex with former patients, Dr. Morgan testified that factors such as transference, vulnerability of the patient, and the physician's own exploitive behavior are relevant. (R. pp. 52, 55). His testimony supports the view that Dr. Adler took advantage of a vulnerable patient and that his conduct as to Patient E was a violation of the ethical standards accepted in 1988. (R. p. 55-56).

Dr. Berg, Dr. Adler's expert, reviewed much of the same material as did Dr. Morgan. (R. pp. 93-94). Based upon her review, Dr. Berg found that the 1988 standard for sex with a former psychiatric patient should be applied on a case by case basis. (R. p. 101). Such case by case reviews must look at a variety of factors such as patterns of boundary violations, degree of relationship, the length and intensity of treatment, the patient's vulnerability as it relates to transference, age differences, length of time between treatment and the start of the relationship, and bribing of the patient by the physician. (R. p. 101, ln. 20-25; p. 102, ln. 1-16).

Even Dr. Berg's factors afford the Board with evidence of Dr. Adler's violation of his ethical duty. For example, Patient E attempted suicide before beginning treatment with Dr. Adler and such an act is some evidence that the treatment with Dr. Adler was by necessity intense in nature. In addition, a clear pattern of gifts exists (P. H. Day 2, p. 18, ln. 9-15) along with inappropriate touching in an office setting (P. H. Day 2, p. 13, ln 20-25; P. H. Day 2, p. 14, ln. 1-8), and an effort to conceal the relationship (P.H. Day 2, p. 17, ln. 10-14). Further, Dr. Adler was aware of Patient E's continuing psychiatric treatment at the time he initiated the sexual relationship. Such evidence supports a finding of an effort to aggravate transference issues. (R. p. 51, ln. 21-25; p. 52, ln 1-4).

Accordingly, when considered as a whole, the evidence is such that reasonable minds could have come to the conclusions reached by the Board. Thus, substantial evidence exists to support the Board's findings that Dr. Adler violated his ethical responsibilities to Patient E.

The Board's Supplemental Order on Remand of October 22, 2001 is AFFIRMED.

AND IT IS SO ORDERED

______________________

RAY N. STEVENS

Administrative Law Judge

Dated: January 29, 2002

Columbia, South Carolina

1. As to Patient D, Judge Lockemy did not vacate any of the findings made by the Board as to this patient but instead held that the "findings do not form a sufficient basis for the Board's sanction, either standing alone or in combination with other findings."

2. While Dr. Adler plainly argues that revocation is an improper sanction, his argument also implies that the ALJ should impose a more appropriate sanction. However, if the sanction were found to be improper, the ALJ as an appellate body lacks the authority to impose a new sanction. Rather, the prerogative of setting a new sanction rests with the agency. Walker v. South Carolina Alcoholic Beverage Control Com'n, 305 S.C. 209, 407 S.E.2d 633 (1991) ("As an administrative agency, the [ABC] Commission is the fact-finder and it is the Commission's prerogative, and not the trial court's, to impose an appropriate penalty based on the facts presented."). Thus, even if the revocation amounted to an abuse of discretion, a remand to the Board would be required with directions that the Board impose a sanction other than a revocation.