ORDERS:
ORDER AND DECISION
This is an appeal from an order of the South Carolina Board of Medical Examiners ("Board")
suspending the license to practice medicine of Hugh Smith Thompson ("Thompson") and
imposing other conditions upon Thompson prior to any reinstatement. The final decision of the
Board was issued on May 31, 1994. Thompson received the written decision on June 7, 1994 and
filed his Notice of Appeal with the Administrative Law Judge Division ("Division") on July 6,
1994.
Subsequently, the Board filed a Motion to Dismiss on the basis that Thompson's petition for
appellate review failed to contain a specific and detailed statement of the rulings in issue pursuant
to S.C. Code Ann. § 1-23-380 (Supp. 1993) and that the defect deprived the Division of
jurisdiction to hear the case. The Board's motion is denied.
The Division was created by Act No. 181 of 1993. In the enabling legislation, the Division was
authorized to adopt rules governing administration. S.C. Code Ann. § 1-23-650 adopts the Rules
of Civil Procedure as temporary rules of the Division for all contested cases before the Division.
These Rules do not apply to procedure for appeals or regulation hearings before the Division.
Temporary Operating Procedures were adopted by the Division to provide procedures when the
South Carolina Rules of Civil Procedure do not apply and for appeals and regulation hearings.
These temporary rules specifically state that in cases appealed to the Division, the procedure to
follow is to file a Notice of Appeal. Temporary Operating Rules 33.
The appeal process is one additional step within the administrative process which must be
exhausted before judicial review by the circuit court. There are significant differences between
appeals to this Division and to the circuit court, most importantly is that this Division is still
within the executive branch of government. The rule adopted by the Division is similar to the rule
of appellate procedure adopted by the Supreme Court. This rule changes the previous practice
that the notice of appeal contain specifications of error.
In circuit court, pursuant to the rules of civil procedure, an action is commenced by filing a
petition. This is the first opportunity for judicial review. Any action taken by the Division is not a
judicial department function but merely a continuation of the executive administrative process. It
follows then that the procedure developed by the Division is simply a process for administrative
review of an agency decision and does not give rise to questions of jurisdiction for circuit court
judicial review. For the reasons stated the Board's motion is denied.
Thompson raises several issues on appeal. These are whether his constitutional rights to due
process were violated by the Board in conducting its investigation and subsequent hearings;
whether the evidence and law support the Board's finding that the Medical Practices Act was
violated absent proof of the standard of care or deviation from the standard of care; and whether
the sanction imposed by the Board was excessive. The decision of the Board is affirmed.
DUE PROCESS VIOLATION
Thompson argues that his due process rights were violated by not having his disciplinary hearing
conducted by a neutral and detached hearing body including the protection against ex
partecommunications; by not having adequate notice of the charges brought against him; and by
the denial of the opportunity for effective cross-examination.
A.Thompson claims that his disciplinary hearing was not conducted by a neutral and detached
hearing body because the Assistant Attorney General acted as both prosecutor and
attorney/advisor to the Board. In addition, Thompson states that ex parte communications
occurred between the prosecutor and the Board in prohibition of the law. Due process requires
an "impartial decision maker" but does not preclude an administrative agency from adjudicating a
matter by a panel composed of "persons within the agency who did not participate in investigative
or prosecutorial capacities." The Babcock Center, Inc. v. Office of Audits, 286 S.C. 398, 334
S.E.2d 112, 114 (1985). S.C. Code Ann. § 40-47-200(A) (Supp. 1993) states that no disciplinary
action may be taken until an initial complaint has been filed with the Board. In determining
whether to approve the issuance of a formal complaint pursuant to its regulations, the Board may
consult with the Attorney General's office. The Attorney General's office, after investigation,
must issue a written recommendation to the board. The Board may act upon this written
recommendation, but no review of the potential testimony or substantive evidence by the Board is
permitted. If a formal complaint is issued, a hearing must be held before a panel as provided in
S.C. Code Ann. § 40-47-211 (1986). Section 40-47-211 establishes the Medical Disciplinary
Commission of the State Board of Medical Examiners. The Commission is empowered to
investigate and hear those complaints against physicians filed with the Board pursuant to Section
40-47-200. Hearings are conducted before a panel of three commissioners who must not be
members of the Board.
The United States Supreme Court has held that the combination of investigatory or prosecution
and adjudicatory functions in an administrative agency was not, in and of itself, a denial of
administrative procedural due process rights. Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43
L.Ed.2d 712 (1975). The Administrative Procedures Act does not prohibit agency personnel
engaged in prosecution or investigatory functions from participating in an adjudication to the
extent that they are acting as counsel in such a proceeding. Jacob A. Stein, et al. 4 Administrative
Law § 33.02[4] (1995).
In the current case, the Attorney General's office acted as prosecutor with co-counsel. The same
attorney presented the information for a formal complaint to the Board which considered the
matter in executive session. There is no evidence that the attorney was present when the Board
made its decision. Thompson argues that the Assistant Attorney General was acting not only as
prosecutor but also as counsel for the Board. As evidence he points to the remarks made by the
Assistant Attorney General at the panel hearing to "welcome Mr. Koon to the Board's team".
These comments are nothing more than an acknowledgement that Mr. Koon would be
participating in the proceedings of the agency known as The State Board of Medical Examiners.
In fact the hearing panel is part of the same agency. Likewise, the appearance of the Assistant
Attorney General at Board meetings is to fulfill his role as the person who presents information to
the Board for its consideration. There is no evidence that the Assistant Attorney General actively
participated in any deliberations on the matters before the Board in this case.
The Office of the Attorney General exists to properly insure administration of laws of the State.
Langford v. McLeod, 269 S.C. 466, 238 S.E.2d 161 (1977). In that capacity, the office is
required to advise the boards, commissions, agencies and departments of the executive branch of
government. The Attorney General himself is not required to represent these state entities but
may appoint a member of his staff as was done here.
Thompson claims that ex parte communications took place between the Assistant Attorney
General and the Board. There is no evidence or hint of any improper communications about this
case at any time during the administrative process.(1) The motion by Thompson to supplement the
record to show that communications took place does not contain any information which would
shed light on the proceedings in this case. There appears to be no irregularity shown in the record
of the proceedings. Additional evidence may be presented in the case of an allegation of
irregularity not apparent on the record in the discretion of the reviewing tribunal. Ross v. Medical
University of South Carolina, Op.No. 24173 (S.C. Sup. Ct. filed Dec. 19, 1994) (Davis Adv. Sh.
No. 28 at 5). The information presented, by the motion to supplement the record, to this Division
to support the alleged irregularity does not address the facts of this particular case. There is no
showing of any irregularity in the proceedings against Thompson before the Commission or the
Board.
B.Thompson also alleges that the complaint served on him did not give adequate notice of the
charges brought against him. The amended complaint states in part:
Upon information and belief, [Thompson] has engaged in certain conduct in his practice of
medicine that violated provisions of the South Carolina Medical Practice Act (S.C. Code
Ann. § 40-47-5, et seq. (1986)) and the Rules and Regulations of the State Board of
Medical Examiners, including the commission of the following acts:
A. Violations of S.C. Code Ann. §§ 40-47-200(7), (8), (11), and (12) (1986); Regulations
No. 81-60 (C), (D), and (E) (Supp. 1992) of the Rules and Regulations of the Board; and
S.C. Code Ann. §§ 44-53-360 (c) and (h) (1986), in that between approximately November
28, 1990, and January 6, 1993, [Thompson] prescribed to one...quantities of various
controlled substances and other dangerous drugs...without valid documented medical
justification, for other than any documented legitimate medical purpose, outside a bona fide
physician-patient relationship, and not in the usual course of professional practice.
The amended complaint clearly states which statutes and regulations Thompson is alleged to have
violated and the acts which constitute the alleged violation. "The constitutional standard for
vagueness is the practical criterion of fair notice to those to whom the law applies." Toussaint v.
State Board of Medical Examiners, ___ S.C. ___, 400 S.E.2d 488, 491 (1991). When the person
affected by the law constitutes a select group with a specialized understanding of the subject being
regulated, the degree of definiteness required to satisfy due process is measured by the common
understanding and knowledge of the group. Id. In Toussaint, the doctor was charged with
violating S.C. Code Ann. §§ 40-47-200(7), (8), and (12), the same provisions alleged in this case.
The Supreme Court held that those "provisions are sufficiently definite to provide notice that a
physician must conform his conduct to those standards of competence acceptable within the
medical community of this State." 400 S.E.2d at 491; see Burdge v. State Board of Medical
Examiners, 304 S.C. 42, 403 S.E.2d 117 (1991); Zaman v. State Board of Medical Examiners,
305 S.C. 281, 408 S.E.2d 213 (1991), cert. denied, 112 S.Ct. 200 (1991). The same applies in
this case.
C.Finally, Thompson alleges that he was denied the opportunity for effective cross-examination
when the Panel refused to exempt his proposed expert from the sequestration order. At the Panel
hearing, the witnesses were subject to sequestration. Thompson objected to sequestering his
expert witnesses because he wanted them to listen to the testimony of the Board's expert in order
to assist in preparing cross-examination. The Panel refused to allow the witnesses to remain in
the hearing room. However, Thompson was allowed to remain to hear the testimony and to aid
his attorney in conducting cross-examination.
Whether a witness should be exempted from a sequestration order is within the discretion of the
trial court or tribunal conducting the hearing. Constant v. Spartanburg Steel Products, Inc., ___
S.C. ___, 447 S.E.2d 194 (1994). Thompson was available to assist in his defense and during the
testimony of the proposed witnesses appropriate fact scenarios could have been presented by the
attorney to allow them to reach an expert conclusion.
LACK OF EVIDENCE IN THE RECORD
On this issue, Thompson argues that there is no evidence in the record to support the Board's
decision because there is no evidence on the standard of care Thompson is alleged to have
violated; that he deviated from the standard of care; or what constitutes a bona fide
physician-patient relationship. In reviewing the findings of the Board, the Division is limited to
determining if substantial rights of the appellant have been prejudiced because the administrative
findings, inferences, conclusions or decisions are 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. 1993). In accord with the foregoing provisions, the Board's decision may only be set aside
if unsupported by "substantial evidence". "'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).
Application of this standard is appropriate only in those cases where a "manifest or gross error of
law has been committed by the administrative agency. The statute specifically states: 'The court
shall not substitute its judgment for that of the agency as to the weight of the evidence on
questions of fact.'" 276 S.E.2d at 307. This standard is applicable by the Division to a final
decision in a contested case decided by a professional and occupational licensing board pursuant
to S.C. Code Ann. § 1-23-380(B) (Supp. 1993).
Thompson is charged with prescribing various controlled substances over a 26 month period to a
person outside of a bona fide physician-patient relationship, not in the usual course of professional
practice, without valid documented medical justification, for other than any documented
legitimate medical purpose. This conduct allegedly violates S.C. Code Ann. §§ 40-47-200(7),
(8), (11), and (12) (1986); S.C. Regs. 81-60(A), (D), (F), and (G) (1986) and S.C. Regs.
81-60(C), (D), and (E) (Supp. 1992); and S.C. Code Ann. § 44-53-360(c) and (h) (1986).
The record contains the sworn testimony of the investigator, the Board's expert Dr. Wallace, and
Thompson who provided evidence on the lack of medical records, the lack of any examination of
the patient in a medical setting or prior to prescribing narcotic drugs, and the failure to
communicate with other physicians treating the patient about the prescriptions written by
Thompson. Dr. Wallace opined that Thompson's course of treatment with this patient was
outside the range of acceptable medical treatment in a similar situation. This opinion was based
upon the lack of medical justification and purpose for treatment in that Thompson failed to
maintain any records regarding an examination, diagnosis, treatment plan, progress notes or any
record indicating his course of treatment and the need for medical treatment. There was no
evidence in the medical records by the other doctors treating this patient that Thompson was
rendering professional services or prescribing narcotics to ease her pain. Evidence in the record
demonstrated that Thompson's prescription of pain medication to the patient overlapped with her
treatment by other physicians with whom he did not discuss his treatment. This evidence is the
basis for the concern expressed by Dr. Wallace that Thompson's conduct did not meet acceptable
practices. The Board's expert testified that it was not acceptable medical practice to: (1) prescribe
medications without examining a patient; (2) to prescribe medications whenever a patient called
and asked for them; and (3) to prescribe medications for another doctor's patient without that
doctor's knowledge.
Although Thompson testified that he did keep some notes, he claimed they were lost and he was
unable to find any notes other than a few computer generated notes from 1992 on approximately
seven of the thirty nine prescriptions he called in for the patient. He states that he intended to go
back and flesh out the notes. While under investigation, Thompson failed to tell the investigator
that he maintained notes of any physical history, a calendar of prescriptions, progress notes, or
any other records other than some pharmaceutical records. The record establishes that Thompson
began prescribing pain medication for the patient in November 1990 and did so on three occasions
before she had surgery in January 1991. In March 1991, he examined the patient at bedside and
again began prescribing pain medication for her. He saw the patient several times but does not
remember the exact details of events. He continued to call in prescriptions of various pain
medications until October 1991 when she received medical care from other physicians. In July
1992 he once again began to provide her with medicine. Thompson admits he did not conduct a
thorough physical examination but was aware of her history as told to him by her including her
history of alcohol addiction for which she was receiving treatment. In addition, Thompson asked
the patient to provide him with copies of her medical records which he reviewed.
There is no dispute that the patient was experiencing legitimate pain for which she sought
treatment. The question arises whether Thompson properly investigated and documented her
complaints and whether he should continue to provide her with pain medication without
examining her and without discussing her treatment with other physicians treating her. Thompson
admits that he did not consider himself a member of her treatment team but was a stop-gap doctor
to cover her needs while she was between doctors. He did not tell any of the doctors who treated
the patient that he was also treating her for pain. Even though Thompson had reservations about
whether the patient was possibly becoming addicted to the pain medicine, he continued to
prescribe it for her.
Even if he considered himself her physician, he failed to maintain records and to examine her prior
to issuing prescriptions for pain. It was only after the charges had been filed against him that
Thompson prepared a summary of the patient's medical records from other treating physicians and
hospitalizations with added notations by him. Thompson stated that he may not have had all of
the three volumes of medical records at the time that he was prescribing medication to her.
Thompson's own experts testified that it was not "good medicine" to prescribe narcotics to a
person who had a history of addiction, who had not been examined, whose treatment had not
been verified, and to fail to maintain detailed records on what course of treatment was being
followed.
This evidence, if believed, would allow reasonable minds to reach the conclusion the Board
reached. Clearly, there is substantial evidence in the record to support the Board's findings. This
reviewing tribunal may not substitute its judgment for that of the agency as to the weight of the
evidence. The Disciplinary Panel had the benefit of seeing and hearing the testimony of the
witnesses and judging their credibility and demeanor. Thompson testified before the Board
answering questions they had about his conduct. A finding of fact by an administrative agency
will not be overturned "unless there is no reasonable probability that the facts could be as related
by a witness upon whose testimony the finding was based." Lark v. Bi-Lo, supra at 307.
HARSHNESS OF THE SANCTION IMPOSED
Thompson argues that the Board erred in imposing sanctions that are too harsh in light of the
evidence and the Board's prior decisions. The Board suspended Thompson's medical license for
an indefinite period which would be stayed and reinstated in a probationary status after the
payment of a $5000 fine. Once the license is reinstated in a probationary status, Thompson must
comply with other restrictions such as only prescribing controlled substances in institutional
settings; issuing prescriptions in triplicate form to maintain a record for authorities; being subject
to periodic review by the Board; subjecting the medical records of his patients to periodic review
by the Board; and attending a seminar on prescribing abusable drugs.
S.C. Code Ann. § 40-47-200 provides that the Board may order revocation or suspension of a
license to practice medicine, publicly or privately reprimand the license holder, or take other
reasonable action short of revocation or suspension, such as requiring the licensee to undertake
additional professional training subject to the direction and supervision of the Board or imposing
restraint upon the medical practice of the licensee as circumstances warrant until the licensee
demonstrates to the Board adequate professional competence. In addition, the Board may require
the licensee to pay a civil penalty of up to ten thousand dollars to the Board. S.C. Code Ann. §
40-47-200(A) (Supp. 1993).
The sanctions imposed upon Thompson are within those established by law. The alleged
disparate treatment is not a basis for reversal of the Board's sanctions. It is well-settled that an
agency need not exercise discretion identically in every case. "A penalty that is within the
authority of the agency is not rendered invalid in a particular case because it is more severe than
sanctions imposed in other cases...and mere unevenness in the application of the sanction does not
render its application in a particular case unwarranted in law." Deese v. State Board of Dentistry,
286 S.C. 182, 332 S.E.2d 539, 541 (S.C. App. 1985); cf. Gale v. State Board of Medical
Examiners, 282 S.C. 474, 320 S.E.2d 35 (S.C. App. 1984) (Board is not required by statutes to
invoke certain sanctions for certain violations and a showing of any misconduct listed may result
in license revocation, suspension, restriction, or limitation). Thompson's argument is without
merit.
ORDER
For the reasons stated in this opinion, the judgment of the State Board of Medical Examiners is
AFFIRMED.
_________________________
ALISON RENEE LEE
Administrative Law Judge
March _____, 1995
Columbia, South Carolina.
_________________
Fn. 1. Although there is no impropriety in the actions of the Assistant Attorney General, the fact
that he acted as prosecutor before the panel and Board and is then allowed to advise the Board on
other matters not relating to the disciplinary actions does create an impression that he has
influence with the Board and leads to conjecture that he may be engaging in ex parte
communications or participating in the deliberation in disciplinary matters. |
