ORDERS:
ORDER
REMANDED
This matter is before the Administrative Law Judge (ALJ) Division upon petition for review from
Petitioner, Michael J. Beinor, of a decision of the State Board of Medical Examiners of the
Department of Labor, Licensing, and Regulation (hereinafter referred to as "the Board") denying
Petitioner's Petition to Amend a Final Order. The Respondent Board moved for dismissal of the
appeal. A hearing was conducted on February 21, 1995, to hear oral arguments on the motion to
dismiss and on the merits of the appeal. Upon review of the record and the applicable law, this
matter is remanded for further proceedings consistent with this opinion.
STATEMENT OF THE CASE
Petitioner was the subject of a disciplinary action by the Board which commenced with service
and filing of Notice and Complaint against Petitioner on or about March 8, 1993. On or about
May 2, 1994, Petitioner and the Board entered into a Superseding Memorandum of Agreement
and Stipulations in which Petitioner waived a hearing before the Medical Disciplinary Commission
and agreed to proceed with a Final Order Hearing before the full Board. The hearing took place
on May 16, 1994, and the Final Order was rendered on May 31, 1994. At the time of the May
16, 1994 hearing, Petitioner was employed on staff at Moncrief Army Hospital at Fort Jackson.
By the terms of the Final Order, Petitioner's license to practice medicine in this State was
indefinitely suspended, with such suspension to be stayed and Petitioner's license reinstated in a
probationary status upon Petitioner satisfying certain preconditions specifically set forth in the
Order. Of the several conditions set forth in the sanction, provision 2(a) of the Order, the sole
provision Petitioner seeks to amend, provides:
[Petitioner's] practice of medicine shall be limited to a federal or state institution, such as
Moncrief Army Hospital, with [Petitioner's] surgical and post-operative care being
supervised by a physician approved by the Board. Any changes in [Petitioner's] practice
setting must be approved in writing in advance by the Board.
No petition for review of that Final Order was timely filed.
On October 7, 1994, Petitioner requested a modification of provision 2(a) of the Final Order to
allow him to be employed as a physician at a health care facility other than a federal or state
institution. Petitioner appeared at an October 17, 1994 meeting of the Board to explain the basis
for his request. By letter dated November 10, 1994, the Board denied Petitioner's request. On
November 23, 1994, a Notice of Intent to Appeal the Board's denial of the Petition for
Amendment of Final Order was filed by Petitioner with the Administrative Law Judge Division.
Briefs were submitted to the Court by each party, and Respondent filed a Motion to Dismiss the
appeal. The parties made oral arguments to this Court regarding the Motion to Dismiss and on
the merits at a hearing on February 21, 1995.
Subsequent to the filing of the petition to review with this Court but prior to this Court's hearing,
Petitioner again appeared before the Board and renewed his Petition to Amend the Final Order at
the Board's January 18, 1995 meeting. The Board advised Petitioner by letter dated January 30,
1995, that it declined to alter the May 31, 1994 Order.
Petitioner asserts that he has fully complied with all terms of the Board's Final Order except for
provision 2(a). He further asserts that he has, earnestly and in good faith, attempted to find
employment at a state or federal institution, but has been unsuccessful. He is no longer employed
at Moncrief Army Hospital. Petitioner submitted to the Board and to this Court evidence of his
attempts to find employment at numerous state and federal health care facilities and inquiries as to
the availability of employment opportunities at private health care facilities.
Each of the Board meetings at which Petitioner appeared and requested a modification of the
Final Order was conducted in an informal setting. The record is void of any details of either
proceeding. The record is equally void of the basis for the Board's denial of Petitioner's request.
ISSUE PRESENTED
The issue under consideration is whether the Board's denial of Petitioner's petition to amend or
modify the May 31, 1994 Final Order is reviewable by an ALJ, and, if so, what remedy, if any,
should be granted?
Petitioner seeks the modification of the May 31, 1994 Order on the ground that the limitation of
his practice of medicine to a federal or state institution is arbitrary, capricious, and an abuse of
discretion. Respondent argues that this matter is not properly before this Court because no
petition for review was filed within thirty (30) days of the issuance of the Final Order and since
there has been no subsequent action by the Board to change the conditions of the Final Order, the
Final Order remains the law of the case.
DISCUSSION
There are two statutory provisions regarding review of Board actions. S.C. Code Ann.
§ 40-47-200(E) (Supp. 1993) provides the procedure for an appeal to an ALJ of a Board decision
involving disciplinary action against a physician. S.C. Code Ann. § 40-47-170 (Supp. 1993), on
the other hand, provides for ALJ review of actions of the Board relating to a licensing matters.
The two Code sections provide for different procedures for review depending upon the type of
agency action at issue. They are distinguishable and may be given effect without irreconcilable
conflict. Newsom v. State Board of Medical Examiners, 300 S.C. 120, 386 S.E.2d 627 (1989).
Petitioner asserts that § 40-47-170 is the applicable statute and provides a means of reviewing the
Board's action to deny Petitioner's petition to amend the May 31, 1994 Order. The Board
concedes the applicability of § 40-47-170, but asserts that the Board's decision to consider and
deny Petitioner's petition to modify the Order is discretionary and nonreviewable. The Board also
submits that since its consideration of the petition was done in an informal setting, not amounting
to a "contested case" as defined by the Administrative Procedures Act (APA), Petitioner has no
right of appeal.
S.C. Code Ann. § 1-23-380 (Supp. 1993) provides a mechanism for the appeal of a "contested
case" under the APA. A contested case is characterized as "a proceeding, including but not
limited to ratemaking, price fixing, and licensing, in which the legal rights, duties or privileges of a
party are required by law to be determined by an agency after an opportunity for hearing." S.C.
Code Ann. § 1-23-310 (Supp. 1993). Pursuant to S.C. Code Ann. §§ 1-23-320, 330, and 350
(Rev. 1986 and Supp. 1993), parties in a contested case have the right to present and respond to
evidence under the rules of evidence as applied in the Circuit Courts, conduct cross-examination
of witnesses, and have issued by the agency a final written decision with separately stated
findings of fact and conclusions of law.
It is clear that the Board's consideration and denial of Petitioner's petition to amend the May 31,
1994 Order does not meet the requirements of a contested case. S.C. Code Ann. § 40-47-170,
however, provides another mechanism for review of administrative decisions by the Board:
Any action of the board relating to the granting, refusal or revocation of a license, or any
other official action of the board relating to a license or licensee hereunder, shall be
subject to review by an administrative law judge as provided under Article 5 of Chapter 23
of Title 1 on the record of the board, as in certiorari, upon petition of the applicant or
licensee within ten days from receipt of official notice from the board of the action of which
review is sought. Service of such notice shall be conclusively presumed ten days after
mailing by registered or certified mail to such applicant or licensee of such notice at such
person's last known address. (emphasis added).
Article 5 of Chapter 23 of Title 1 is the enabling legislation for the Administrative Law Judge
Division and provides for the jurisdiction, powers, and duties of an administrative law judge. S.C.
Code Ann. § 1-23-600(D) (Supp. 1993) provides the most common means of review for an
administrative law judge of Board decisions. It authorizes an ALJ to hear appeals from final
decisions of contested cases before the Board of Medical Examiners and other professional
licensing boards within the Department of Labor, Licensing and Regulation pursuant to
§ 1-23-380. Section 1-23-380(A) specifically does not, however, limit utilization of other means
of review, redress, relief, or trial de novo provided by law.
In South Carolina, prior to the enactment of the APA, 1977 Act No. 176, the means of review of
an action or decision of an administrative body was by petition for writ of certiorari to the Circuit
Court. There is a distinction between review upon appeal and review "as in certiorari" as
provided in § 40-47-170. Certiorari is a common law discretionary writ forcing review of an
inferior tribunal's actions. See Black's Law Dictionary, 228 (6th ed. 1990); See also Dobbs,
Remedies 111-112 (1973).
Section 1-23-630 provides that: "Each of the law judges of the division has the same power at
chambers or in open hearing as do circuit court judges, and to issue those remedial writs as are
necessary to give effect to its jurisdiction." Under Rule 65, SCRCP, Circuit Court judges are
authorized to issue injunctions, writs of mandamus and habeas corpus, and other remedial writs.
A remedial writ is not a cause of action, but rather a means of obtaining redress, relief or remedy,
the right of which must be supported by law and facts. See, Rule 65, SCRCP, note; Black's Law
Dictionary, 1293 (6th ed. 1990); Black's Law Dictionary, 1608 (6th ed. 1990). "The writ of
certiorari is a common-law remedy, to correct errors in law of inferior jurisdiction." Wyse v.
Wolfe, 129 S.C. 499, 123 S.E. 818 (1924). It must only be used where no right of appeal exists
and is granted in the prerogative of the court according to the circumstances of the particular
case, as justice may require. State ex rel. Martin v. Moore, 54 S.C. 556, 32 S.E. 700 (1899).
In addition to asserting that relief from provision 2(a) of the Final Order is available by virtue of
its being arbitrary, capricious, and an abuse of discretion, Petitioner argues that Rule 60(b),
SCRCP, provides a basis for relief. Rule 60(b) allows relief from an order or parts of an order
upon a showing of mistake, inadvertence, surprise, excusable neglect, newly discovered evidence,
fraud, misrepresentation, etc. Rule 64(b), SCRCP further provides that in any case
where no provision is made by statute or rule, those procedures and remedies existing in this State
prior to the adoption of the SCRCP (effective July 1, 1985) are applicable.
The Board asserts that it is under no statutory or regulatory requirement to consider Petitioner's
Petition to Amend. The Board takes the position that reconsideration of the terms of a final order
after the lapse of the appeal period is purely discretionary on the part of the Board; therefore, a
sanctioned physician has no legal right to have his modification request considered, much less the
denial of the request reviewed. Furthermore, it submits that the discretionary consideration of the
petition need not be performed as a contested case pursuant to the APA. That position ignores
the potential for injustice in a situation in which by mistake, inadvertence, surprise, excusable
neglect, fraud, or misrepresentation discovered after the time period for appeal has lapsed, the
Board's final order is inequitable. Likewise, the Board's refusal to alter its final order in the face
of newly discovered evidence or a material change in circumstances could similarly prejudice the
rights of a doctor.
While it is recognized that the Board generally operates in good faith and would afford a person
an opportunity for reconsideration of a final order as a matter of fairness and equity, there must be
a means of redress to protect against abuse and prejudice. There must be a process by which an
aggrieved party can seek protection of his substantive rights against action or inaction of the
State. Regardless of whether the right to or means of such consideration is clearly stated in
regulation or statute, superseding constitutional due process provisions confer the right to receive
notice, have an opportunity to be heard, and obtain judicial review when private rights are
affected. S.C. Const. art. I, § 22; League of Women Voters of Georgetown County v.
Litchfield-By-The-Sea, 305 S.C. 424, 409 S.E.2d 378 (1991).
The right to practice medicine is a property right of value entitled to be protected. Dantzler v.
Callison, 230 S.C. 75, 94 S.E.2d 177 (1956), appeal dismissed, 352 U.S. 939 (1956). The right
of a person to practice the profession of his or her choice and preparation, free from unreasonable
government interference, is a fundamental value of the due process rights which protect liberty
and property interests. Brown v. South Carolina State Board of Education, 301 S.C. 326, 391
S.E.2d 886, 867 (1990); Ezell v. Ritholz, 188 S.C. 39, 198 S.E. 419 (1938).
As an administrative agency, the Board must comport with due process standards set forth in
Article I, § 22, of the South Carolina Constitution. Accordingly, as in League of Women Voters
of Georgetown County v. Litchfield-By-The-Sea, supra, it is appropriate to conclude in the
present case that the issue Petitioner desires to be decided upon the merits is not a contested case
decision reviewable under the APA, but may be treated as an action for writ of certiorari. An ALJ
is empowered to review an administrative decision as an action for writ of certiorari in this case
pursuant to the specific statutory authorization regarding medical licensing cases (S.C. Code
Ann. § 40-47-170) and the general statutory authorization regarding the issuance of remedial
writs (S.C. Code Ann. § 1-23-630).
To afford meaningful review of the Board's denial, the record of the Board must be examined.
There is no record, per se, of the two informal hearings before the Board, however. The record
presented for review contained no minutes or any other evidence of the rationale of the Board in
denying the request. The totality of the certified administrative record of the Board filed with this
Court consists of:
1. The Final Order, dated May 31, 1994;
2. Petition to the Board for Amendment of Final Order, dated October 7, 1994;
3. Letter from Petitioner's counsel to Board accompanying the Petition, dated October 7,
1994;
4. Letter from Petitioner's counsel to Board providing additional information, dated
November 8, 1994;
5. Letter from the Board to Petitioner's counsel regarding the January 1995, meeting of the
Board, dated November 10, 1994; and
6. Letter from the Board to Petitioner advising Petitioner that his Petition for Amendment
had been considered at the Board's October, 1994 meeting and denied, dated November 10,
1994.
Subsequent to the filing of the Notice of Intent to Appeal with the Administrative Law Judge
Division, but prior to the hearing, the record was supplemented with a letter from the Board to
Petitioner's counsel following the Board's January 18, 1995 meeting, at which Petitioner
appeared. The letter, dated January 30, 1995, informed Petitioner that the Board declined to
change the terms of the May 31, 1994 Order.
Petitioner's appearances before the Board on October 17, 1994, and January 18, 1995, were both
in the form of informal meetings. No sworn testimony was taken and no formal order was issued
containing findings of fact or conclusions of law. It is unclear from the record upon what grounds
the Board denied Petitioner's Petition to Amend the May 31, 1994 Order. In fact, the extent of
the Board's consideration and action upon Petitioner's request found in the record submitted to
this Court is limited to the two letters from the Board's executive director after the informal
meetings between the Board and Petitioner.
Without a record articulating the reasons for the denial, this Court can not determine whether the
decision was capricious, arbitrary, and/or an abuse of discretion. "An administrative body must
make findings which are sufficiently detailed to enable this court to determine whether the findings
are supported by the evidence and whether the law has been applied properly to those findings."
Hamm v. South Carolina Public Service Commission, ___ S.C. ___, 422 S.E.2d 118 (1992). It
follows then, that this matter should be remanded for further proceedings. League of Women
Voters of Georgetown County v. Litchfield-By-The-Sea, supra.
The Board must afford Petitioner a contested case hearing, on the record, and allow sworn
testimony and the submission of evidence in support of his Petition to Amend the May 31, 1994
Order. After the contested case hearing, the Board shall render a written decision with separately
stated findings of fact and conclusions of law. That step is necessary to provide this Court with
an adequate basis to review the action of the Board, if such review is still sought by Petitioner.
AND IT IS SO ORDERED.
_______________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
March ____, 1995
Columbia, South Carolina |
