ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This is an appeal from a final decision of the State Board of Medical Examiners ("Board") of the
South Carolina Department of Labor, Licensing, and Regulation. Appellant Jules S. Neviaser,
M.D. is a physician who was duly licensed to practice medicine in South Carolina.
On March 3, 1994, Appellant was indicted by the Horry County Grand Jury on five counts of
Assault and Battery of a High and Aggravated Nature, one count of Assault with Intent to
Commit Criminal Sexual Conduct Third Degree, and two counts of Unlawful Distribution of
Controlled Substances. To date, the criminal charges are still pending and the date of trial is
uncertain. As a result of the charges, the Board, on March 7, 1994, sought temporary injunctive
relief against Appellant's continued practice of medicine. On March 8, 1994, after a hearing on
the Board's petition, Appellant's license to practice medicine was temporarily suspended by Order
of this Division. On March 16, 1994, a Consent Order was entered which extended Appellant's
suspension until final disposition by the Board.
The Board, on or about March 11, 1994, brought formal charges against Appellant. On April 13,
1994, a hearing was held before a panel of members of the Medical Disciplinary Commission
pursuant to S.C. Code Ann. § 40-47-200 (Supp. 1993) and S.C. Code Ann. Regs. 81-15 and
81-16 (1976). At the close of the State's case, Appellant moved to adjourn the proceeding until
such time as all pending and future criminal charges were resolved. The motion was denied.
Appellant then declined to testify or present evidence in his defense, asserting his Fifth
Amendment right against self-incrimination. The hearing concluded without Appellant's
testimony. The Hearing Panel, in its Certified Report issued on April 14, 1994, recommended
permanent revocation of Appellant's license to practice medicine in the State of South Carolina.
Following receipt of the Certified Report of the Hearing Panel, a Final Order Hearing was held
before the Board on May 16, 1994, at which Appellant again, after the State's argument was
presented, asserted his constitutional right against self-incrimination. The Board issued its Final
Order on May 31, 1994, in which it found that the Appellant violated S.C. Code Ann. §§
40-47-200 (F)(7), (8), and (12) (Supp. 1993) and S.C. Code Ann. Regs. 81- 60 (A), (B), (C),
and (D) (Supp. 1993), and permanently revoked Appellant's license to practice medicine in South
Carolina. This appeal followed.
DISCUSSION OF ISSUES
Appellant raises the following issue in his Petition and Brief.
I. ABUSE OF DISCRETION
Appellant argues that the Board abused its discretion in denying his request for adjournment of
the Panel Hearing. Appellant submits that the Board's denial of the postponement motion resulted
in disregard to his constitutional privilege against self-incrimination and a deprivation of due
process. Appellant further argues that since he is currently not practicing medicine, pursuant to a
consent order of temporary suspension effective until a resolution of the administrative
proceedings, a postponement of the Board's disciplinary hearing until the conclusion of the
criminal proceeding would not prejudice the State in any way nor place the public in a position of
potential harm.
It is not the role of this court to substitute its judgement or discretion for that of the Board, but
rather to determine whether the Board abused its own discretion. In Herbert v. Chicago, Rock
Island and Pacific R.R. Co., 544 P.2d 898 (Ill. 1976), the Court pronounced that the granting of a
continuance is within the sound discretion of the trial court and refusal to grant a continuance
does not constitute reversible error unless abuse of discretion is shown. See alsoState v. King,
306 S.C. 335, 412 S.E.2d 375 (1991) (holding no reversal without clear showing of abuse of
discretion). The South Carolina Supreme Court, in Bridges v. Wyandotte Worsted Co., 239 S.C.
37, 121 S.E.2d 300 (1961) stated that an abuse of discretion exists where "the ruling of the trial
court was without reasonable factual support, resulted in prejudice to the rights of the appellant,
and therefore, in the circumstances, amounted to error of law."
It is undisputed that Appellant was within his Fifth Amendment Constitutional right to refuse to
testify at the Panel Hearing. "The Fifth Amendment not only protects the individual against being
involuntarily called as a witness against himself in a criminal prosecution but also privileges him
not to answer official questions put to him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future criminal proceedings." Baxter v.
Palmigiano, 425 U.S. 308 (1976). Given that he is subject to criminal prosecution for the same or
similar allegations as are the basis for this administrative action, it is completely understandable
that Appellant would choose to assert his Fifth Amendment right against self-incrimination. It is
the timing of Appellant's motion to postpone the conclusion of the disciplinary hearing, however,
that is troublesome.
It is obvious from the record that Appellant had notice of the charges against him and was aware
of the substance of the testimony and other evidence to be offered by the State prior to the Panel
Hearing. Although an individual is not required to invoke the privilege against self-incrimination
until called as a witness, Appellant could have moved for a postponement of the entire hearing at
anytime prior to the commencement of the hearing. Appellant chose, however, to request a
continuance of the administrative proceeding after being able to see and hear the evidence against
him and cross-examining the State's witnesses. While possibly a wise strategic decision in light of
the pendency of the criminal action, Appellant took a calculated risk in moving for a continuance
at mid-hearing in order to get a preview of the State's criminal case against him.
Appellant alleges that he was placed in an untenable position by invoking his privilege against self
incrimination. As a basis for this argument, Appellant asserts that testifying would force him to
reveal his criminal defenses and make statements that could be used against him in the criminal
trial, whereas failing to testify would deny him an opportunity to respond and present evidence of
the issues involved and thereby pose the threat of an adverse inference being taken where the
potential loss of his license was at stake. "The Board is not constitutionally forbidden from
drawing an adverse inference if a doctor refuses to testify at a disciplinary hearing." Arthurs v.
Stern, 560 F.2d 477, 478 (1st Cir. 1977), cert. denied, 434 U.S. 1034. "Nor is there anything
inherently repugnant to due process in requiring the doctor to choose between giving testimony at
the disciplinary hearing, a course that may help the criminal prosecutors, and keeping silent, a
course that may lead to the loss of his license." Id. The Board did not draw a negative inference
from Appellant's refusal to testify. Nothing in the record shows that the Board did anything to
prejudice Appellant's constitutional rights. The Board's decision to revoke Appellant's license was
based solely upon the evidence presented.
The Board was confronted with the choice of indefinitely postponing the hearing by granting the
motion or proceeding with the hearing without Appellant testifying or offering any evidence in
defense or mitigation. The State would be required to reconvene the hearing at a later date, recall
a number of witnesses, and preserve two days of testimony if the hearing were continued.
Appellant would clearly receive a strategic advantage from the delay. The Board asserts that the
inconvenience of reconvening and the unfair advantage to be gained by Appellant in having the
proceeding continued outweigh Appellant's interests. The Board recognized the significance of
the timing of Appellant's motion and acted within its clear discretion in denying the motion and
concluding the hearing without Appellant presenting a defense.
II. STANDARD OF REVIEW
The Administrative Procedures Act establishes the "substantial evidence" rule as the standard for
judicial review of decisions of the boards coming within its terms. In reviewing the findings of the
Board, an Administrative Law Judge is limited to determining whether the findings are supported
by substantial evidence. S.C. Code Ann. § 1-23-380(A)(6) and (B) (Supp. 1993); Lark v. Bi Lo,
Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).
S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1993), which governs the scope of judicial review in
this matter, provides in pertinent part:
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;
. . .
(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.
"'Substantial evidence' is not a mere scintilla of evidence nor the evidence 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." Lark v. Bi Lo, Inc., 276 S.C. 130, 276 S.E.2d 304, 306 (1981);
McGuffin v. Schlumberger-Sangamo, et al., 307 S.C. 184, 414 S.E.2d 162 (1992). The Board
found that the record contained overwhelming credible evidence of Appellant's professional
misconduct and unfitness to practice medicine. Based on the corroborated testimony of eleven
(11) female patients of Appellant, some female members of Appellant's office staff, as well as
former employees, the Board found that Appellant engaged in a pattern of abusing his
professional position of trust for his own sexual gratification. In light of the testimony, there is
sufficient evidence in the record to sustain the Board's decision. The decision, therefore, is clearly
within the range of evidence contained in the record.
After reviewing the record, the Hearing Panel Report, and the Board's Final Order, I conclude
that the Final Order of the Board is not clearly erroneous in view of the reliable and probative
evidence contained in the record as a whole.
For the foregoing reasons, the Board's Order dated May 31, 1994 is affirmed in whole.
AND IT IS SO ORDERED.
_______________________________
Stephen P. Bates
Administrative Law Judge
Columbia, South Carolina
February ____, 1995 |
