SC Administrative Law Court Decisions

This is an appeal of Respondent's November 21, 2001 Order which affected Appellant's license as a physician in South Carolina. Counsel for the Appellant and the Respondent presented oral argument on March 18, 2002. Before the oral arguments began, counsel for Appellant moved to strike from the Record pages 2-9 and 15-31 of the transcript because that information was not a basis for the Complaint in this case. I granted that motion on the basis that these pages are not relevant to this appeal; thus those pages are not part of the Record on Appeal. Counsel for the Respondent did not object to that ruling.

FACTUAL BACKGROUND

On January 22, 2001, a formal complaint was filed against Appellant by the State Board of Medical Examiners, charging Appellant with several violations of the Board's Practice Act, S.C. Code Ann. §40-47-200 et seq, (1986 and Supp. 1997) and related Regulation 81-60. The violations arose from the treatment of one patient. ⁽¹⁾

The Patient, an obese, 280-pound pregnant woman, was referred to Appellant on July 12, 1999 by another physician for consideration of a pregnancy termination. Her last menstrual period had begun on June 7, 1999. On July 16, 1999, Patient returned to Appellant's office for a pregnancy termination. Resulting lab reports indicated that there were products of conception, or chorionic villi, present. Appellant noted the uterus to be about six weeks in size.

Several days after the pregnancy termination, Patient returned to Appellant for placement of an IUD. She did not have an ultrasonic examination during the appointment. On September 2, 1999, Patient returned to Appellant's office complaining of cramping and irregular bleeding. Appellant performed no ultrasound or other documented examination, but did make an adjustment to the strings of the IUD. On that date, Patient told Appellant that her regular period had been about one week earlier.

On November 2, 1999 Patient had an appointment with Appellant. She told Appellant that she had tested positive using a home pregnancy test and she requested another pregnancy termination. Appellant performed another pregnancy termination; pathology reports indicated that amniotic membranes and chorionic villi were present. Respondent did not perform an ultrasonic or bimanual examination of Patient prior to the termination. Medical records did not indicate that Appellant determined uterine size or gestational age of the fetus, or the position of the IUD in relation to the pregnancy.

At the Patient's request, Appellant scheduled her for a laparascopic tubal ligation on November 12, 1999. On November 12, Patient was admitted to the hospital for the scheduled sterilization; the anesthesiologist recognized the pain the Patient was having as uterine contractions. Appellant then performed a D&C on the Patient. The D&C delivered fetal and umbilical cord parts including a severed arm. Patient was then sent to the floor of the hospital for Pitocin augmentation in order to deliver the remainder of the fetal tissue and the placenta. During the early morning the Patient delivered in her bed a stillborn child, minus an arm and umbilical cord. After an ultrasound examination which revealed either clots or placental tissue remaining, a curettage was performed on November 13, 1999, and the patient was discharged.

The Forensic Pathologist concluded that the fetus which was delivered on November 13, 1999 was between twenty and twenty-three weeks gestational age.

Appellant did not perform an ultrasonic examination of the Patient any time during the course of her treatment other than on November 13, 1999, after the tubal ligation Appellant and witnesses testified that the Patient consistently refused to undergo ultrasonic examination prior to that date.

The medical records provided to the Panel and the Board of Medical Examiners for review were incomplete and did not document completely the Patient's medical history from July through November, 1999.

An evidentiary hearing was held in the matter on June 27, 2001 before a Hearing Panel composed of three members of the Medical Disciplinary Commission. The Hearing Panel issued its report on September 14, 2001, finding misconduct and recommending that the Board impose an appropriate sanction. The Board hearing was held on October 23, 2001and the Board's Final Order, which is the subject of this appeal, was issued on November 21, 2001. The Board found the Appellant had violated S.C. Code Ann. §40-47-200 (F)(7) and S.C. Code of Regs. §81-60. As a result, the Board's Order imposed the following ⁽²⁾:

• Respondent is hereby issued a public reprimand.
• Respondent shall pay a civil fine in the amount of $5,000 plus the costs associated with this action in the amount of $7,123.07. Payment shall be made within six months of the date of this Order.
• Respondent's license to practice medicine shall be placed in a probationary status for a period of two years upon the following terms and conditions:
• All pregnancy terminations done by the Respondent shall be subject to annual review by the Board. The cost of such reviews shall be borne by the Respondent.
• Respondent shall cooperate with the Board, its attorney, investigators, and other representatives in the review of the Respondent's compliance with the provisions of this Order. Respondent may be required to furnish the Board with additional information as may be deemed necessary by the Board or its representatives. It shall be Respondent's responsibility to fully comply with all such requests in a timely fashion. Failure to satisfactorily comply with such requests will be deemed a violation of this Order.
• Respondent shall appear and report to the Board as requested by the Board.
• Respondent shall promptly advise this Board in writing of any changes in address, practice, hospital privileges, professional status or compliance with this Order. Correspondence shall be directed to:

LLR- Board of Medical Examiners

P.O. Box 11289

Columbia, SC 29211-1289

• Failure by the Respondent to abide by any of the aforementioned conditions, or if the Respondent is otherwise unable to practice with reasonable skill and safety to patients, shall warrant the immediate temporary suspension of her license to practice medicine in this State pending hearing into the matter and until further order of the Board.
• This Order shall be effective immediately upon receipt by the Respondent or her counsel.

II. STANDARD OF REVIEW

Jurisdiction on appeal is vested in the Administrative Law Judge Division pursuant to the Administrative Procedures Act (APA), specifically S.C. Code Ann. §§ 1-23-600(D) (Supp. 2001) and S.C. Code Ann. 40-1-160 (2001). On appeal to the Division, the standard of review is limited to the record presented. The APA governs the reasons an appellate body may reverse or modify an agency decision. That section provides:

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) (1986 and Supp. 1999).

An Administrative Law Judge may not substitute her judgment for that of the agency unless the agency's determination is affected by error of law or is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2001); Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).

A decision is supported by "substantial evidence" when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 321 S.E.2d 63 (Ct. App. 1984). The well-settled case law in this state has also interpreted the rule to mean that a decision will not be set aside simply because reasonable minds may differ on the judgment. Lark supra. The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency's finding from being supported by substantial evidence. Waters v. South Carolina Land Resources Conservation Comm'n, 321 S.C. 219, 467 S.E.2d 913 (1996); Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995); Palmetto Alliance, Inc. v. South Carolina Public Service Comm'n, 282 S.C. 430, 319 S.E.2d 695 (1984).

In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 466 S.E.2d 357 (1996), citing Kearse v. State Health and Human Finance Comm'n, 318 S.C. 198, 456 S.E.2d 892 (1995). Furthermore, the reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact. Grant, supra citing Gibson v. Florence Country Club, 282 S.C. 384, 318 S.E.2d 365 (1984). Finally, the party challenging an agency action has the burden of proving convincingly that the agency's decision is unsupported by substantial evidence. Waters, (citing Hamm v. AT&T, 302 S.C. 210, 394 S.E.2d 842 (1994)).

STATEMENT OF ISSUES ON APPEAL

1. Was the Board's decision relative to standard of care issues based upon substantial evidence in the record?

2. Did the Appellant receive a fair and impartial hearing below?

3. Should the sanction imposed by the Board in this case be affirmed on appeal?

ANALYSIS

1. THE BOARD'S DECISION RELATIVE TO STANDARD OF CARE ISSUES WAS BASED UPON SUBSTANTIAL EVIDENCE IN THE RECORD.

In determinations as to evidentiary sufficiency, the key issue is whether there is substantial

evdience that supports the conclusion of the administrative body that the State met its burden of proof by a preponderance of the evidence. Anonymous v. The State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998). Substantial evidence "is not a mere scintilla of evidence nor the evidence as viewed blindly from one side of the case, but is evidence which, considering the Record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached or must have reached in order to justify its action." Wilson v. State Board of Medical Examiners, 305 S.C. 194, 406 S.E.2d 345 (1991). Thus, the appellate courts of this State should "not overturn a finding of fact by an administrative agency unless there is no reasonable probability that the facts could be as related by a witness upon whose testimony the finding was based." Lark vs. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304, 307 (1981)(emphasis added).

The Board had before it the entire record compiled by the Hearing Panel. The exhibits admitted into evidence included Patient's medical records, which the Board found to be incomplete and inadequately documented. Those records were reviewed by an independent expert physician witness retained for that purpose by the Department, the three physicians sitting as a Hearing Panel, and the full Board, composed entirely of physicians, except for one consumer member appointed by law.

The physician members of the Medical Board are presumptively competent to pass on the standard of care for the practice of general medicine. The Board is enabled by statute to use its collective experience, technical competence and specialized knowledge in the evaluation of the evidence. S.C. Code of Laws, §1-23-330 (4). The Board may consider expert witness testimony regarding standards of medical care, but is free to use its own expertise in evaluating that testimony or disregarding it altogether.

In South Carolina, the courts have recognized a professional standard of care. The Supreme Court addressed the issue of standard of care in Keaton ex. rel. Foster vs. Greenville Hospital System, 334 S.C. 488, 514 S.E.2d 570 (1999). In Keaton, the Court said:

In King v. Williams, 276 S.C. 478, 279 S.E.2d 618, 620 (1981), this Court put forth

the standard of care for a medical practitioner. This Court held: "The degree of care

which must be observed is, of course, that of an average, competent practitioner

acting in the same or similar circumstances." King, at 482, 279 S.E.2d at 620

(emphasis added). Since the King decision, our Court of Appeals has defined

medical malpractice as "the failure of a physician to exercise that degree of care and

skill which is ordinarily employed by the profession generally, under similar

conditions and in like surrounding circumstances," Jernigan v. King, 312 S.C.

331, 333, 440 S.E.2d 379, 381 (Ct.App.1993) (emphasis added). The standard for

recovery has been summarized, "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, " Bonaparte v. Floyd, 291 S.C. 427, 354 S.E.2d 40, 45

(Ct.App.1987) (citing Welch v. Whitaker, 282 S.C. 251, 317 S.E.2d 758

(Ct.App.1984)) (emphasis added).

Where the medical field of the physician whose care is at issue is a recognized profession or specialty in South Carolina, the standard of care in that field must be established by the testimony of one knowledgeable or skilled in that field of practice. The State satisfied this requirement by presenting as its first witness Lilly S. Filler, M.D., a board-certified obstetrician-gynecologist who practices in Columbia. Dr. Filler is President-Elect of The Columbia Medical Society and is Vice Chief of Staff at Palmetto Richland Hospital. (ROA pg. 57).

Dr. Filler testified on direct examination (ROA pp 57-61) that she reviewed the records of Appellant's treatment of the Patient and concluded that her treatment did not meet the standard of care expected of a physician practicing obstetrics and gynecology in South Carolina. Her opinion was based on the fact that Appellant failed to make use of generally accepted non-invasive diagnostic procedures to determine the size of the patient's uterus at various points in the treatment. Dr. Filler's opinion is supported by the following facts in the record.

On July 12, 1999, Patient was seen by Appellant upon referral of another physician for a pregnancy termination. The patient was morbidly obese, weighing upon initial examination two hundred and eighty pounds. (ROA pg. 57). The patient returned several days later for the termination. At that time, Appellant noted the uterus to be about six weeks in size. (ROA pg. 57).

The Patient returned about five days later for the placement of an IUD. She returned to Appellant's office on September 2, 1999, complaining of cramping and irregular bleeding. Her weight was down to two hundred sixty-one pounds. Appellant performed no ultrasound or other documented examination but shortened the strings on the IUD. Dr. Filler testified that an ultrasound is "truly the right hand of an obstetrician these days." According to Dr. Fuller, the use of an ultrasound is "essential" and "truly needed" with an obese patient. (ROA pg. 58). Appellant's expert, Dr. McGregor, admitted on cross-examination that Appellant would have uncovered the existence of the fetus in time to avoid the disastrous outcome of her treatment had she performed the ultrasound. (ROA pg. 81).

On November 2, 1999, the Patient complained to Appellant during an office visit that she had another positive pregnancy test; she requested another pregnancy termination. Appellant attempted to perform the termination on that date without first performing an ultrasound examination. The Patient was then scheduled for a tubal ligation by open laparoscopy on November 12, 1999. When the Patient was brought into the operating room, she was complaining of cyclical pain which the anesthesiologist recognized immediately as uterine contractions. (ROA pg. 69). During this procedure, Appellant traumatically amputated the arm of the fetus which she thought had been removed from the uterus on November 2^nd . (ROA pg. 64).

After the discovery of the fetal arm, part of the umbilical cord, and other fetal tissue, Appellant admitted Patient to the medical-surgical floor for recovery and administration of Pitocin augmentation. Although the floor nurses were alerted to the possibility that the patient might pass some remaining fetal tissue during the night, they were "shocked" and "surprised" when the patient delivered a still-born child, minus an arm and umbilical cord, in the early hours of November 13, 1999. (ROA pp. 85,88).

The State also offered the testimony of Erin McConnell, M.D., the forensic pathologist who examined the child after delivery. Dr. McConnell could not say whether the fetus was alive when its arm was severed. However, she did testify that the fetus could have been killed by the trauma of November 12^th, but in any event, could not have been dead for more than "a day or so" prior to the November 12^th procedure. She based this testimony on the lack of skin maceration (sloughing) after death. She further testified that the gestational age of the fetus on November 12^th was between twenty and twenty-three weeks. (ROA pg. 64-65). Therefore, the child must have been conceived in late June or early July. It is probable, therefore, that the fetus Appellant attempted to abort on July 12^th was the same fetus which Appellant attempted to abort on November 2^nd, and the same fetus which was delivered on November 13^th. As Dr. Filler testified, this trauma could have been avoided by the use of a simple ultrasound on July 12^th, or September 2^nd, or November 2^nd, 1999.

Appellant argues in brief that the Patient got what she wanted- an abortion. While that is technically true, she did not want the infection which followed the incomplete abortion. Neither did she want the stress which accompanied the unnecessary surgery. That argument assumes that the Patient knew what was happening to her. The record shows, however, that she was never told that she had delivered a still-born child. In fact, the nursing staff told her she had passed clots. (ROA p.85).

Most of Appellant's criticism of the Board's findings and conclusions relate to conflicting testimony and the relative worth of the testimony of the various experts. This Court must not substitute its judgment for that of the Board and must accept the Board's findings with regard to the evidence unless no reasonable probability exists that the facts could be as the witness related them. Lark v. Bi-Lo, supra. Appellant states that the Board ignored the testimony of Appellant's witnesses. The fact that the Board did not mention the names of these witnesses in its order does not mean that the Board failed to consider them. It means that the Board found the testimony of Dr. Filler and Dr. McConnell to have greater weight or credibility. In fact, the most highly credentialed expert offered by Appellant, Dr. McGregor, showed on cross-examination that he was an academician, not a clinical physician. (ROA, pp. 82,84).

Dr. Pruitt, Appellant's second expert, never reviewed the fetal autopsy report and expressed surprise that the pathologist who did the autopsy found no maceration of the skin of the fetus. He also admitted that if there were no skin maceration as Dr. McConnell testified, then that would "create some doubt" as to his opinion of the time of death of the fetus. (ROA pg. 93).

Appellant's next two witnesses were her office assistant and office nurse. These witnesses told conflicting stories about the reason given by the Patient for not wanting an ultrasound. The office assistant said the Patient was embarrassed about her weight. She further volunteered that Patient's reluctance was not financial because she had just received a "settlement." (ROA pp. 99-100). The office nurse testified that the Patient stated that she did not want an ultrasound for financial reasons. (Pg. 101). Appellant's next witness was Dr. Anne Epting, the anesthesiologist who handled the anesthesia for the November 2^nd office procedure. She had no involvement in the case after November 2^nd and primarily testified about the contents of lost records. The only other witness called was the Appellant, who testified on her own behalf.

Based on all the evidence in the record, I find that Respondent, by substantial evidence, established that Appellant's treatment of the Patient did not meet the requisite standard of care for a physician practicing obstetrics and gynecology in South Carolina.

2. APPELLANT RECEIVED A FAIR HEARING AND HAS FAILED TO PRESERVE FOR REVIEW THE ISSUE OF THE COMMENTS OF STATE'S COUNSEL.

Appellant raises, for the first time on appeal, an issue of the propriety of the arguments to the Board made by State's counsel. As the record discloses, Appellant's counsel failed to make a contemporaneous objection to the argument and has, therefore, failed to preserve this issue for appeal. State vs. Hamilton, 344 S.C. 344, 543 S.E.2d 586 (SC App. 2001), State vs. Wilkins, 310 S.C. 81, 425 S.E.2d 68 (S.C. App. 1992).

Assuming arguendo that Appellant has preserved this issue for appellate review, he still has not made a record sufficient to demonstrate prejudice. In criminal cases, the test of granting a new trial for alleged improper argument is whether the State attorney's argument so infected the trial with unfairness as to make the resulting conviction a denial of due process. State v. Hamilton, supra.

In analyzing this standard, our courts have held that a solicitor's comments may not appeal to the personal biases of the jurors. State v. Copeland, 321 S.C. 318, 468 S.E.2d 620 (1996). Likewise, the argument must not be calculated to arouse the jurors' passions or prejudice and its content should stay within the record and its reasonable inferences. Simmons v. State, 331 S.C. 333, 503 S.E.2d 164 (1998). The standard is largely the same in civil cases. Gathers vs. Harris Teeter Supermarket, Inc., 282 S.C. 220, 317 S.E.2d 748 (1984). Ordinarily, control of arguments is left to the discretion of trial judges, and will not be disturbed on appeal absent a clear abuse of discretion. Neal vs. Darby, 282 S.C. 277, 381 S.E. 2d 18 (Ct.App. 1984).

A cursory review of the summation of State's counsel in the instant case reveal that it passes the fairness test cited above. (ROA pg. 384-391, 400-401). There was no appeal to the prejudice or bias of the Board.

The argument of which Appellant complains highlighted the matters in the record and fair inferences drawn therefrom. References to Appellant's past history before the Board were fairly considered by the Board in determining an appropriate sanction. Although there appears to be no South Carolina case dealing directly with such comment in medical disciplinary cases, the Supreme Court of North Carolina ruled in a similar case that comment on and consideration of prior bad acts is proper in consideration of the proper sanction to be applied. In Re Kincheloe, 272 N.C. 116, 157 S.E.2d 833 (1967), cert. denied, Kincheloe vs. Board of Medical Examiners of North Carolina, 88 S.Ct. 1414, 290 U.S. 1024, 20 L.Ed. 2d 283. In Kincheloe, supra, the Court approved the questioning of the Respondent, who was accused of fondling female patients, about a rape case in which he was acquitted. See also John L. Vakas vs. the Kansas Board of Healing Arts, 248 Kan. 589, 808 P.2d 1355 (1991).

Appellant complains that evidence was introduced at the Panel Hearing regarding a peer review of the Patient's case at Roper North Hospital. However, the record shows that it was Appellant who first injected that issue into the hearing. This was done by Appellant's counsel at the beginning of the hearing when a discussion was held on the record regarding stipulation of documents into evidence. (ROA pg. 55-56). Later, Appellant's experts, Dr. McGregor and Dr. Pruitt, testified regarding documents from the Roper North peer review process. These documents were introduced into the record by Appellant as Respondent's Exhibits 1 through 7. Although Dr. McGregor said he never knew whether the documents came from the peer review process, they were later identified as the Roper North documents by Dr. Pruitt. Dr. Pruitt also volunteered that he was asked by an official at Roper North to review Patient's case. (ROA pp. 71, 74-80, 90, 93). Having herself stipulated the documents into evidence and presenting expert opinion evidence based in part on those documents, Appellant cannot complain that the State's counsel referred to the peer review process. In Re Kincheloe, supra.

3. THE SANCTION IMPOSED BY THE BOARD SHOULD BE AFFIRMED.

The Board ordered a public reprimand, a $5,000.00 fine plus costs and placed the Appellant's license to practice medicine in a probationary status for a period of two (2) years with additional terms and conditions. The Appellant challenges these as being arbitrary based on the evidence.

As a creature of statute, the Board possesses "only those powers that are expressly conferred or necessarily implied for it to effectively fulfill the duties for which it is charged." Captain's Quarters Motor Inn, Inc. vs. South Carolina Coastal Council, 306 S.C. 488, 490, 413 S.E.2d 13, 14 (1991). The legislature vested the Board with wide latitude in fashioning sanctions in physician disciplinary cases.

The State Board of Medical Examiners, if it has reason to believe grounds exist, may order the revocation or suspension of a license to practice medicine...or take other reasonable action short of revocation or suspension.... In addition to or in lieu of action taken by the board affecting the license of a licensee, when it is established that the individual has violated this chapter or any regulation promulgated by the board, the board may require the licensee to pay a civil penalty of up to ten thousand dollar to the board and the costs of the disciplinary action.

S.C. Code Ann. §40-47-200 (A)(Supp. 1999).

An exercise of discretion by an administrative agency will not be disturbed unless there is an abuse of discretion evidenced by a showing that the action of the agency was arbitrary or unlawful. 73A C.J.S. Public Administrative Law and Procedure § 223a (1983). An administrative sanction cannot be said to be unduly harsh if it is within the Board's authority to impose. South Carolina Bd. of Examiners in Optometry v. Cohen, 256 S.C. 13, 180 S.E.2d 650 (1971). The authority to review the findings of and punishment imposed in the Board's order is confined to the correction of errors of law. This tribunal is not permitted to substitute its judgment for that of the Board unless the Board's action was influenced or controlled by some erroneous view of the law, was without substantial evidence to support it, or amounted to a manifest abuse of discretion. State v. White, 218 S.C. 130, 61 S.E.2d 754 (1950). I find that the sanctions imposed are within the Board's range of available sanctions and are not unduly excessive or arbitrary.

CONCLUSION

The Board's decision to sanction the Appellant is adequately supported by the reliable, probative and substantial evidence in the whole record of the case. Further, the sanctions are within the range authorized by the statute. Therefore, the decision of the Board is hereby AFFIRMED.

AND IT IS SO ORDERED.

__________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

This 26^th day of June 2002

Columbia, South Carolina

1. The Board refers to this patient as Patient A. However, since this case only involves the treatment of one patient, she will be referred as "The Patient."

2. This language is taken directly from the Board's Order. In that Order, Dr. Kreutner, the Appellant in this appeal, was the Respondent.