ORDERS:
ORDER
This matter is before the Administrative Law Judge (ALJ) Division upon Respondent's Motion to
Alter or Amend this Court's Order dated March 14, 1995 (incorporated herein by reference). The
March 14, 1995 Order remanded the matter to the South Carolina Board of Medical Examiners
(Board) to conduct a contested case hearing pursuant to the Administrative Procedures Act
(APA) to consider Petitioner's Petition to Amend a May 31, 1994 Order of the Board and issue a
detailed written decision. Respondent seeks to have the remand instructions amended so that the
Board must only rewrite its previous general decision by adding findings and conclusions and not
be required to conduct a contested case hearing.
Petitioner opposes the motion and, additionally, moves this Court to: (1) stay the applicability
and enforcement of the probationary condition at issue in the Board's Order of
May 31, 1994; and (2) order a specific time frame within which the Board must conduct the
contested case hearing. A hearing was conducted to hear arguments on the motions on April 4,
1995. The motions of Respondent and Petitioner are denied. The terms of the March 14, 1995
Order of this Court remain in effect.
RESPONDENT'S MOTION TO ALTER OR AMEND JUDGMENT
As the Temporary Operating Procedures of the Administrative Law Judge Division do not
provide for a Motion to Alter or Amend Judgment, Respondent's motion is made and considered
pursuant to Rule 59, SCRCP, and Administrative Order of the Administrative Law Judge
Division, dated June 20, 1994.
Respondent's Motion to Alter or Amend Judgment is based upon the mistaken belief that the
March 14, 1995 Order of this Court required the Board to conduct a contested case hearing even
though the action by the Board at issue was not entitled to be considered a contested case under
the APA. The plain meaning of the Order should be clear from a careful and complete reading of
the Order. To correct any misinterpretation and to allow no room for ambiguity, however, the
conclusions of the Court contained in the March 14, 1995 Order are restated in paraphrased form
below.
The Board's informal consideration of Petitioner's Petition to Amend should have been
conducted as an APA contested case. The Board was therefore ordered to accomplish that task
on remand. A medical license and a person's right to practice medicine are property rights. Even
in an administrative setting, a person is entitled to certain Constitutional due process safeguards to
protect against abuse by the State. S.C. Const. art. I, § 22.
Each of the cases cited in support of Respondent's Motion to Alter or Amend involves a remand
of a matter which was originally heard as a contested case but lacked adequately stated findings
in the Agency's decision to allow for meaningful appellate review. In the present case, no
contested case hearing was held, so merely remanding the matter to the Board for a more detailed
decision without also ordering a contested case hearing makes no sense. When a party before an
administrative agency has not been afforded his constitutional right to be heard, the reviewing
tribunal will remand for a hearing on the merits. See Stono River Environmental Protection
Association v. South Carolina Department of Health and Environmental Control, 305 S.C. 90,
406 S.E.2d 340 (1991).
Generally, a court may amend its findings of fact and conclusions of law on the ground that they
are defective, incomplete, outside the issues, or not supported by the evidence. It may properly
refuse to amend findings and conclusions supported by the evidence or which appear proper and
sufficient, and refuse to make amendments unsupported by the evidence or which are immaterial
or inconsistent. 89 C.J.S. Trial § 638 (1955). In the present case, to amend the Order as
proposed by Respondent would render the remand direction insufficient and inconsistent with the
remainder of the Order.
PETITIONER'S MOTION TO STAY AND
MOTION TO ORDER EXPEDITED ACTION BY THE BOARD
Petitioner argued at the hearing that the provision of the Board's Order of May 31, 1994, which is
the root of this entire controversy should be non-binding on Petitioner pendente lite by means of a
stay ordered by this Court. Petitioner cites S.C. Code Ann. § 40-47-200(E)
(Supp. 1994) and S.C. Code Ann. § 1-23-380 (Supp. 1994) in support of his Motion to Stay;
however those provisions relate to a stay pending appeal of a final decision of the Board. In the
instant case, the final Board decision setting forth the probationary requirements was not
appealed. This action involves the subsequent consideration of a Petition to Amend a final order.
The terms of the Board's Order of May 31, 1994, should therefore remain in effect until, if ever, it
is altered or rescinded by the Board or by a reviewing court upon the exhaustion of remedies.
Petitioner also moves to order the Board to expedite the scheduling of the contested case hearing
required by this Court's Order of March 14, 1995. While it is hoped that the Board will act with
deliberate speed in resolving this matter, this Court is reluctant to order a specific deadline for
action. The Board meets on a periodic basis and should conduct the contested case hearing
ordered as soon as is practicable.
For the foregoing reason, all motions are denied. The March 14, 1995 Order of this Court in this
matter remains in effect, unchanged.
AND IT IS SO ORDERED.
________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
April 7, 1995
Columbia, South Carolina |
