ORDERS:
ORDER AND DECISION
VACATED AND REMANDED
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (ALJD) pursuant to a request
for an appeal by Dr. Raymond C. Elam (Appellant). Appellant appeals the decision of the State
Board of Veterinary Medical Examiners of South Carolina (Board) to suspend his license to
practice veterinary medicine for two weeks, followed by a period of probation of three years,
pursuant to S.C. Code Ann. §40-69-140 (Supp. 1995) and S.C. Code Regs. 120-3.5 (1992).
The issues on appeal, as articulated by Appellant in his Brief, are as follows: (1) Did the entries
Dr. Elam placed in his veterinary records comply with the plain meaning of the specific
regulations governing the keeping of such veterinary records; (2) Did the Veterinary Board create
a standard of record keeping beyond that required by regulation such that its decision in this case
should not be granted deference; and (3) Was the punishment meted out to Dr. Elam
inappropriate in light of a subsequent inspector's finding that his records, in general, were in
conformity with the record keeping regulation.
For the reasons set forth below, the order of the Board is vacated and this matter is remanded to
the Board for (1) the conducting of a contested case hearing whereby the clear and convincing
standard of proof is used, rather than the substantial evidence standard of proof; and (2) the
rendering of sufficient Findings of Fact and Conclusions of Law to enable a review of the order on
appeal. In light of this determination, Appellant's arguments are moot.
JURISDICTION
Jurisdiction on appeal is vested in the ALJD pursuant to S.C. Code Ann. §§1-23-600 (Supp.
1995) and 40-69-150 (Supp. 1995). On appeal to the ALJD, the standard of review is limited to
the record presented. An administrative law judge shall not substitute his judgment for that of an
agency unless the agency's determination is affected by error of law or clearly erroneous in view
of the reliable, probative and substantial evidence of the whole record. S.C. Code Ann.
§1-23-380 (A)(6) (Supp. 1995); Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).
FACTUAL BACKGROUND
On June 8, 1995, a client brought her cocker spaniel to Appellant. The cocker spaniel was near
delivery. The dog had been seen by Appellant approximately six months before when she had
previously delivered puppies. The owner had brought the dog to Appellant's office because the
dog had fainted or "passed out." Appellant examined the dog and determined that it was "going
into delivery." The client recalled the examination and testified that he could "feel the head of a
puppy."
Appellant agreed to keep the dog for observation while the client went out of town. Later that
evening, when the client decided not to leave town, Appellant told her that her dog could deliver
the puppies at home. The client returned to pick up the dog, and led it to the office door on a
lease.
Later that night there was an emergency involving the dog. Appellant could not be located;
however, on her second phone conversation with Appellant's office staff, she was told to take the
dog to another emergency clinic. A hysterectomy was performed at the other clinic, but the dog
died.
After a complaint was filed with the Board by the client, proceedings before the Board were
initiated by a notice of charges and hearing, dated March 13, 1996, being issued to Appellant.
The charges alleged: (1) that Appellant failed to conduct adequate diagnostic procedures in
violation of S.C. Code Ann. §40-46-140(12) (violations of the standards of professional conduct)
and (2) that he failed to adequately keep proper records as required by S.C. Code Regs. 120-3.5.
A contested case hearing on both charges was held before the Board on April 25, 1996.
By its order dated May 10, 1996, the Board found Appellant to be in violation of Regs. 120-3.5,
but not in violation of §40-46-140(12). For the violation of Regs. 120.3.5, the Board imposed a
two week suspension of Appellant's veterinary practice, a three year period of probation, and
thirty hours of Continuing Education to be completed by the end of the year 1996. On May 13,
1996, Appellant petitioned the Board for reconsideration and sought a stay of the penalty. The
Motion for Reconsideration was denied, without a hearing, by an order dated May 22, 1996. On
May 21, 1996, Appellant filed a notice of appeal seeking a review of the Board's May 10, 1996
order. The penalties imposed on Appellant were stayed pending appeal. On June 11, 1996, a
thirty day extension to the stay was granted on the basis that the parties were working on a
possible resolution of the matter. As the matter was not resolved, an appellate hearing was
scheduled and took place at the offices of the ALJD on September 11, 1996.
IMPROPER STANDARD OF PROOF AT THE HEARING
The Board applied the improper standard of proof at the April 25, 1996 contested case hearing.
In its order of May 8, 1996, the Board made Findings of Fact based upon "...the reliable,
probative, and substantial evidence of the whole record." In applying what is commonly known
as the "substantial evidence rule," the Board imposed a standard of proof less than that required at
professional disciplinary proceedings under S.C. Code Ann. §§1-23-310 et seq. (1986 and Supp.
1995), the South Carolina Administrative Procedures Act (APA). Because an improper standard
of proof was applied, Appellant was not afforded the requisite procedural due process rights
provided to litigants pursuant to the Federal and State Constitutions and the APA.
The APA is silent on the specific question of what standard of proof is to be applied during
contested case hearings of professional disciplinary licensing matters. However, prior to July 15,
1996, the standard of proof applied in these cases was the preponderance of the evidence. On
July 15, 1996, the South Carolina Court of Appeals rendered the decision of Anonymous v. The
State Board of Medical Examiners, ___ S.C. ___, 473 S.E.2d 870 (Ct.App. 1996). In
Anonymous, the Court determined that in professional disciplinary proceedings under the APA,
the standard of proof required is clear and convincing evidence. Id. at 878.
ERROR PRESERVATION
Despite counsel's attempt to demonstrate the preservation of the standard of proof issue, this case
is different from Anonymous. There, the Medical Board failed to state the standard of proof used
at the hearing. Here, the Veterinary Board expressed the standard of proof used at the hearing -
the substantial evidence rule. Because a standard of proof was stated in the order, the factual
situation is different from Anonymous, and Appellant cannot rely on the analysis used in that
opinion to establish error preservation here.(1)
ORDER VOID FOR ILLEGALITY
Despite Appellant's failure to preserve the standard of proof issue, the matter can still be
considered on appeal because the order of the Board is void for illegality. "A judgment which is
void for illegality is a mere nullity, and may be held so in any court when it becomes material to
the parties to consider it; it is not necessary that the certain illegality which renders this judgment
void, be raised below or else be waived, for the judgment is a nullity in the first place and cannot
be relied upon." Griffith v. Brooks, 389 S.E.2d 246 (Ga.App. 1989); see also 4 C.J.S. Appeal
and Error §207 (1993).
The order of the Board found Appellant to be in violation of Regs. 120-3.5 based upon "the
reliable, probative, and substantial evidence of the whole record." The Board's use of the
substantial evidence rule, as the standard of proof for a contested case, is a clear and blatant
violation of Appellant's procedural due process rights. The guarantee of due process found in the
Fourteenth Amendment to the Federal Constitution declares that no state shall "deprive any
person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV. Due
process encompasses "[a]ll rights which are of such fundamental importance as to require
compliance with due process standards of fairness and justice" and includes "[p]rocedural...rights
of citizens against government actions that threaten the denial of life, liberty, and property."
Black's Law Dictionary 501 (6th ed. 1990). "Procedural due process imposes constraints on
governmental decisions which deprive individuals of 'liberty' or 'property' interests within the
meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v.
Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). "When the State seeks to revoke a
professional license, procedural due process rights must be met." Zaman v. South Carolina State
Bd. of Medical Examiners, 305 S.C. 281, 408 S.E.2d 213, cert. denied, 502 U.S. 869, 112 S.Ct.
200, 116 L.Ed.2d 160 (1991).
The use of the incorrect standard of proof implicates the due process clause. If the improper
standard is applied to a case, the delicate balance between the interests of the moving party versus
those of the party being moved against, is disturbed. "The function of a standard of proof, as that
concept is embodied in the Due Process Clause and in the realm of fact finding, is to 'instruct the
fact finder concerning the degree of confidence our society thinks he should have in the
correctness of factual conclusions for a particular type of adjudication." Addington v. Texas, 441
U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). "[I]n any given proceeding, the minimum
standard of proof tolerated by the due process requirement reflects not only the weight of the
private and public interests affected, but also a societal judgment about how the risk of error
should be distributed between the litigants. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388,
71 L.Ed.2d 599 (1982). Thus, the use of the incorrect standard of proof at a professional
disciplinary proceeding constitutes a violation of the due process clause, and triggers the
protection provided by its application. Without the employment of the proper standard, the
interests of the party subject to the proceedings are not adequately protected.
Prior to Anonymous, it was clear that the standard of proof in almost(2) all contested case
hearings under the APA was the preponderance of the evidence standard. See Nat'l Health Corp.
v. S.C. Dep't of Health and Envtl. Control, 298 S.C. 373, 380 S.E.2d 841 (Ct.App. 1989); Hill v.
Jones 255 S.C. 219, 178 S.E.2d 142 (1970); 2 Am. Jur. 2d Administrative Law §363 (1994). The
substantial evidence rule is the standard used in appeals of contested case decisions under the
APA. S.C. Code Ann. §1-23-380 (A)(6) (Supp. 1995). "Substantial evidence is relevant
evidence that a reasonable mind might accept as being adequate to support a given conclusion."
Boggs v. State Bd. of Medical Examiners, 288 S.C. 144, 341 S.E.2d 635 (1986). In contrast, the
preponderance of the evidence is "evidence which as a whole shows that the fact sought to be
proved is more probable than not." Black's Law Dictionary 1182 (6th ed. 1990). As the
standard used for findings of fact in appellate proceedings, the substantial evidence rule is
obviously a less stringent standard than the preponderance of the evidence standard.(3)
By using the "substantial evidence rule" as the standard of proof at the hearing, the Board violated
Appellant's procedural due process rights. Because the standard of proof at the hearing should
have been greater, the findings of fact of the Board are invalid and cannot be accepted as the facts
of the case. As a result, Appellant did not receive an opportunity to be heard as is required by the
APA. See S.C. Code Ann. §1-23-320 (Supp. 1995). If allowed to stand, the order of the Board
would effectively find Appellant to be in violation of Regs. 120.3.5 without Appellant having been
afforded the benefit of a fair hearing on the issue.
In Griffith, the Court found the lower court's order to be "... void for illegality, and a mere
nullity," because "[t]he findings of fact and conclusions of law do not, as a legal matter, support
the order..." 389 S.E.2d at 249. Here, the standard of proof utilized by the Board is inconsistent
with the making of findings of fact and conclusions of law. The substantial evidence rule is only
used in appeals of contested case hearings. It is never used as the standard of proof at the
contested case level.
INSUFFICIENCY OF FINDINGS OF FACT AND CONCLUSIONS OF LAW
The APA specifically requires an agency's order in a contested case to "include findings of fact
and conclusions of law..." S.C. Code Ann. 1-23-350 (1986). This requirement was explored in
Able Communications v. S.C. Public Service Com'n, 290 S.C. 409, 351 S.E.2d 151 (1986):
The findings of fact of an administrative body must be sufficiently detailed to enable the
reviewing court to determine whether the findings are supported by the evidence and
whether the law has been properly applied to those findings. Hill v. Jones, 255 S.C. 219,
178 S.E.2d 142 (1970). Implicit findings of fact are not sufficient. Where material facts are
in dispute, the administrative body must make specific, express findings of fact.
Id. at 152; see also Cloyd v. Mabry, 295 S.C. 86, 367 S.E.2d 171 (Ct.App. 1988).
In this case, Appellant was found to be in violation Regs. 120.3.5 and was punished by having his
license to practice veterinary medicine suspended for two weeks, followed by a period of
probation of three years. The violation was found and the penalty administered after the Board
drafted an order containing three findings of fact and four conclusions of law. The findings of fact
were preceded by a brief recitation of the factual scenario that led up to the charges being brought
against Appellant. As this information provided a partial backdrop to the findings of fact that
were issued by the Board, it should have been formally included under that heading.
The findings of fact and conclusions of law recorded by the Board were as follows:
FINDINGS OF FACT
1. The Respondent is licensed to practice veterinary medicine in this State and was so licensed at
all times relevant to the conduct referenced in this case.
2. On June 8, 1995 a registered female cocker spaniel, "Lady June", pregnant and soon to deliver,
was brought to Elam Animal Hospital with a compliant of passing out. The animal had been seen
by Respondent on approximately five occasions since her birth in 1993 and this visit.
3. Respondent failed to record adequate documentation of his examination\assessment\treatment
of "Lady June" on the June 8, 1995 visit.
CONCLUSIONS OF LAW
1. The Board has jurisdiction in this matter and, upon finding that a licensee has violated any of
the provisions of S.C. Code Ann. §40-69-140, supra, has the authority to order the revocation or
suspension of a license to practice as a veterinarian, publicly or privately reprimand the holder of a
license, or take other action restricting or otherwise disciplining the licensee as circumstances
warrant.
2. The Respondent has failed to prepare an adequate written treatment record for his patient,
"Lady June" in violation of S.C. Code Ann. §40-69-140(1)(Supp. 1995) and Board Regulation
120-3.5.
3. The sanction imposed is consistent with the purpose of the these proceedings and has been
made after weighing the public interest and the need for the continuing services of qualified
veterinarians against the countervailing concern that society be protected from professional
ineptitude.
4. The sanction imposed is designed not punish the Respondent, but to protect life, health and
welfare and to ensure that competent and qualified persons practice veterinary medicine in this
State.
The Board found that Appellant failed to record adequate documentation of his examination of
the dog. Conspicuously absent from the Findings of Fact is an explanation of whatAppellant put
down on paper and why this information was insufficient. A mere statement that the
documentation was inadequate patently fails to satisfy the mandate of Able Communicationsthat
the findings be "sufficiently detailed." As the findings of fact are insufficient, this tribunal cannot
"...determine whether the findings are supported by the evidence and whether the law has been
properly applied to those findings."
Like the findings of fact, the Board's conclusions of law are inadequate. Conclusion of law
number two, the only conclusion dealing with the applicable law, merely states that Appellant
"...failed to prepare an adequate written treatment record for his patient...in violation of S.C.
Code Ann. §40-69-140(1)(Supp. 1995) and Board Regulation 120-3.5." Section 40-69-140(1)
provides that the Board may suspend or restrict the license of a veterinarian for a violation of
Article 69 or a regulation promulgated by the Board. The regulation at issue is S.C. Code Regs.
120-3.5. It provides, in pertinent part, as follows:
(a) Every veterinarian performing any act requiring a license pursuant to the provisions of
the Veterinary Practices Act upon any animal or group of animals at a veterinary facility,
shall prepare a written record concerning the animal or animals which shall contain the
following information, in legible form, if available:
1. Name, address and phone number of animal's owner,
2. Name and identity of animal,
3. Age, sex and breed of animal,
4. Dates (beginning and ending) of custody of animal,
5. A short history of the animal's condition as it pertains to the animal's medical status,
6. Diagnosis or condition at the beginning of custody of animal,
7. Medication and treatment, including amount and frequency,
8. Progress and disposition of case, and
9. Surgery.
Present in the regulation are nine specific record keeping requirements a veterinarian must comply
with every time he or she sees a patient, if the information is available. After reviewing the
Board's second conclusion of law, it is impossible to determine which of the nine requirements
Appellant failed to satisfy.
As a detailed statement of the facts is a necessity, so is a clear and thorough explanation of the
applicable law. Absent guidance as to how and why a particular law has been violated, a
reviewing tribunal is unable to discern, on its own, whether the actions of the party in question
were inadequate. Here, the order fails to identify which of the regulation's nine provisions were
not complied with by Appellant. A blanket statement that Appellant "failed to prepare an
adequate treatment record" is insufficient.
CONCLUSION
The Board applied the substantial evidence rule as the standard of proof at the hearing. As this
constituted a clear violation of Appellant's procedural due process rights, the Board's order is a
nullity and is void. The order of the Board is vacated and this matter is remanded for a new
contested case hearing on the charges levied against Appellant. At the hearing, the Board will
apply the clear and convincing standard of proof, as this standard has been mandated to be the
appropriate standard of proof in a professional disciplinary proceedings under the APA. After
conducting the hearing, the Board will render an order containing findings of fact, "sufficiently
detailed to enable the reviewing court to determine whether the findings are supported by the
evidence and whether the law has been properly applied to those findings." Also, the Board is
ordered to render specific conclusions of law detailing which provisions, if any, have been violated
by Appellant.
AND IT IS SO ORDERED.
MARVIN F. KITTRELL
CHIEF JUDGE
Columbia, South Carolina
October 2, 1996
__________________
Fn. 1. Even if Appellant could rely on Anonymous for purposes of error preservation, it doesn't
appear that the Amended Motion for Reconsideration raises the issue of whether the clear and
convincing standard should have been applied.
Fn. 2. The general rule concerning the standard of proof at administrative hearings is that the
preponderance of the evidence standard must be used, unless there is an allegation of fraud or a
statute or a court rule requiring a higher standard. 2 Am. Jur. 2d Administrative Law §363
(1994).
Fn. 3. The clear and convincing standard is even more stringent than the preponderance of the
evidence standard. "Clear and convincing evidence is an elevated standard of proof, which lies
between the lesser standard of 'preponderance of the evidence,' used in most civil cases, and the
higher standard of 'beyond a reasonable doubt,' which is required in criminal cases." Wise v.
Broadway, 315 S.C. 273, 433 S.E.2d 857 (1993) (Toal, J., dissenting). "Clear and convincing
evidence requires that the evidence must be found to be credible; the facts to which the witnesses
testify must be distinctly remembered; the testimony must be precise and explicit and the
witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such
weight that it produces in the mind of the trier of fact a firm belief or conviction, without
hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429
So.2d 797 (Fla.Dist.Ct.App.1983). |
