ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-600(D) (Supp. 1996)
of the Administrative Procedures Act ("APA") upon appeal from a Final Order of the State
Board of Medical Examiners ("Board") in which the Board issued a public reprimand and other
license conditions against Appellant for violations of the Medical Practices Act and the Rules
and Regulations of the State Board of Medical Examiners. The Board found Appellant's medical
record keeping for two patients was professionally inadequate and in violation of the requisite
standard of care. Appellant appealed the Final Order by filing a Notice of Appeal captioned
"Anonymous (M-123-94 and M-206-94) v. State Board of Medical Examiners." Respondent
filed a Motion to Alter or Amend the Caption to include Appellant's real name. Briefs were filed
in support and in response to the appeal and motion. Oral arguments were heard on January 28,
1997. Upon consideration of the record, applicable law, and counsel's arguments, Respondent's
Motion to Alter or Amend the Caption is granted, and the Order of the Board is affirmed.
STATEMENT OF THE CASE
On or about July 27, 1995, the Board served a Notice and Complaint upon Appellant,
alleging various violations of the South Carolina Medical Practices Act and the Rules and
Regulations of the Board of Medical Examiners. Specifically, the Board alleged Appellant
violated §§ 40-47-200(F)(7), (8) and (12)(Supp. 1994); Regs. 81-60(A), (B), (D), (F), and (G)
(1986); Regs. 81-60(A), (C) and (D)(Supp. 1994); and, §§ 44-53-360(c) and (h)(1976), as
amended, in regard to Appellant's treatment and care of two patients. Petitioner filed an Answer
on August 23, 1995, and filed various prehearing motions on March 13, March 22, and March
26, 1996. Through one of those motions, Petitioner sought discovery via deposition of the
State's witnesses. The Board granted a request for a deposition de bene esse of one witness, but
denied Petitioner's request to depose other witnesses.
A three-member Disciplinary Panel ("Panel") of the Board's Medical Disciplinary
Commission conducted a hearing on May 8, 1996, and found Petitioner in violation of §§ 40-47-200(F)(7) and (12) (Supp. 1994), Regs. 81-60(D) (1986) and Regs. 81-60(A)(Supp. 1994) for
patient record documentation below the professionally acceptable standard. In its Certified
Report, dated June 18, 1996, the Panel recommended that the Board issue a private reprimand.
The Board conducted a hearing on July 16, 1996, to consider the Panel's report, review
the record, hear testimony from Appellant, and listen to oral argument by counsel. The Board
adopted the findings of the Panel, but issued a public reprimand rather than the recommended
private reprimand. In addition, the Board ordered two other sanctions: (a) Appellant was
required to attend the Clinical, Legal, and Ethical Issues in Prescribing Abusable Drugs program
offered by the University of South Florida and the Quality Medical Record Keeping for Health
Care Professionals course offered by the Florida Medical Association and the University of
South Florida, or equivalent courses approved by the Board; (b) Appellant's medical records
were required to be subject to random review by the Board for two years.
Appellant appealed the Board's Final Order, on several grounds, to the Administrative
Law Judge Division and timely filed a Notice Of Appeal with the case captioned as "Anonymous
(M-123-94 and M-206-94) v. The State Board of Medical Examiners." Respondent filed a
Motion to Alter or Amend the Caption to include Appellant's real name. Briefs were filed in
support and in response to the appeal and motion. Oral arguments were heard before this tribunal
on January 28, 1997.
ISSUES
I. Did the Board err in denying Appellant's request for prehearing discovery?
II. Were Appellant's due process rights violated by the Board's finding of
professional misconduct for inadequate record keeping?
III. Did the Board apply the proper standard of proof?
IV. Were the sanctions imposed appropriate?
V. Should the Board's Final Order have been made public pending appeal?
DISCUSSION
I. The Board did not err in denying Appellant's request for prehearing discovery.
Appellant asserts that the Board improperly denied his request for prehearing depositions
of the State's witnesses. Appellant contends that the Administrative Procedures Act ("APA"),
S.C. Code Ann. § 1-23-320(c) (Supp. 1996) specifically, authorizes the taking of discovery
depositions in administrative proceedings. The Board claims that depositions in administrative
cases are allowed in limited situations for limited purposes, and that its refusal to grant
Appellant's request was not error. The discovery in medical disciplinary cases is discretionary,
and the Board did not abuse its discretion in denying Appellant's request.
While contested case litigants are entitled to fundamental due process considerations,
there is no constitutional right to pre-hearing discovery in administrative cases. The APA does,
however, statutorily empower administrative tribunals to require discovery by order or to allow
parties to independently conduct discovery under the auspices of an agency rule or regulation.
The Board has not promulgated or adopted any specific regulatory provisions addressing
discovery. In the absence of an applicable agency rule or regulation permitting discovery in a
contested case, parties may engage in discovery only to the extent allowed under the APA.
The power to order the exchange of evidence prior to or at a contested hearing is vested in
the hearing tribunal under the APA. See David E. Shipley, South Carolina Administrative Law
5-58 (2d Ed., S.C. Bar 1989). Section 1-23-320(d) provides, "the agency hearing a contested
case may issue in the name of the agency subpoenas for the attendance and testimony of
witnesses and the production and examination of books, papers, and records on its own behalf or,
upon request, on behalf of any other party to the case." Depositions are specifically addressed in
§ 1-23-320(c) which provides, "Any party to such proceedings may cause to be taken the
depositions of witnesses within or without the State and either by commission or de bene esse."
"Commission" refers to "[a]n authority or writ issuing from a court, in relation to a cause before
it, directing and authorizing a person or persons named to do some act or exercise some special
function; usually to take the depositions of witnesses." Black's Law Dictionary 272 (6th ed.
1990). Depositions by commission must be authorized by the agency conducting the contested
case hearing, and are discretionary. A deposition taken de bene esse may have some discovery
value, but it is not technically a discovery deposition. It is instead a conditional examination of a
witness, the transcript of which is to be submitted at trial in lieu of the witness's live testimony.
The discovery provisions of § 1-23-320(c) and (d) are not mandatory, but rather
discretionary. The Board has the authority to order discovery in contested cases; however, the
refusal to order the kind of discovery requested by Appellant is not error unless the Board's
action is arbitrary, is capricious or is an abuse of discretion. "It is well-settled that 'the scope and
conduct of discovery are within the sound discretion of the trial court . . . and that after [the] . . .
final agency order, review is confined to determining if that discretion has been abused. . . .'"
Palmetto Alliance, Inc. v. South Carolina Pub. Service Comm'n, 282 S.C. 430, 436, 319 S.E.2d
695, 698 (1984)(quoting Marroquin-Manriquez v. I.N.S., 699 F.2d 129 (3d Cir. 1983).
An exercise of discretion by an administrative agency will not be disturbed unless there is
an abuse of discretion evidenced by a showing that the action of the agency was arbitrary or
unlawful. 73A C.J.S. Public Administrative Law and Procedure § 223a (1983). "[A] reviewing
court has the duty to examine the procedural methods employed at an administrative hearing to
ensure that a fair and impartial procedure was used." Ross v. Medical Univ. of South Carolina,
317 S.C. 377, 381, 453 S.E.2d 880, 883 (S.C. 1994) (quoting 2 Am.Jur.2d Administrative Law
§ 611).
Prehearing discovery is a useful tool which allows a party to review the evidence
expected to be presented by an opposing party and to intelligently prepare for the contested case
hearing. It prevents "trial by ambush" and assists the parties and hearing tribunal in
concentrating on the relevant, contested issues at the hearing. Although the Board could have
authorized the depositions of the State's witnesses pursuant to Appellant's request, the Board's
denial of the request was not an abuse of its discretion. It is not the role of this Court to
substitute its judgment for that of the Board unless the Board's decision is affected by error of
law or clearly erroneous. State ex rel. Medlock v. South Carolina Coastal Council, 289 S.C. 445,
346 S.E.2d 716 (1986). While discovery in this case may have been beneficial, the Board's
refusal to allow discovery depositions was not unlawful, nor was it arbitrary or capricious.
II. The Board's finding of professional misconduct for inadequate record keeping did
not violate Appellant's due process rights.
Appellant asserts that his due process rights were violated by the Board's finding of
professional misconduct based upon inadequate record keeping. Appellant's constitutional
attack is twofold. He first argues that there is a lack of notice that the alleged conduct is in
violation of professional standards. Secondly, Appellant contends that even if inadequate record
keeping is proscribed under the Board's statutes or regulations, the Board failed to specifically
charge him in the Formal Complaint with committing that particular act of misconduct, depriving
him of his right to notice.
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 that
protect liberty and property interests. Brown v. South Carolina State Bd. of Education, 301 S.C.
326, 391 S.E.2d 866, 867 (1990); Ezell v. Ritholz, 188 S.C. 39, 198 S.E. 419 (1938).
.
A. Notice of professional standards
All physicians licensed to practice in this State are bound by the provisions of S.C. Code
Ann. § 40-47-5, et seq., and 26 S.C. Code Ann. Regs. 81-1, et seq. Appellant contends "[t]here
is no statute or regulation that requires specifically and clearly that any physician maintain any
records, adequate or otherwise." Brief of Appellant at 6. Professional standards for physicians,
however, are not required to be set forth in exhaustive detail to meet the practical criterion of fair
notice.
When the persons affected by the law constitute 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. . . .[P]rovisions [of § 40-47-200] are sufficiently definite that a
physician must conform his conduct to those standards of competence acceptable
within the medical community of this state.
Toussaint v. State Bd. of Med. Examiners, 303 S.C. 316, 321, 400 S.E.2d 488, 491 (1991)
(construing S.C. Code Ann. 40-47-200(8) and (12). "Subsection (7) defines misconduct as a
violation of medical ethics . . . and subsection (12) specifically provides that a lack of
professional competence constitutes misconduct for which a physician may be disciplined."
Zaman v. S.C. Bd. of Med. Examiners, 305 S.C. 281, 283, 408 S.E.2d 213, 214, cert. denied, 502
U.S. 969 (1991).
In the practice of medicine, a patient's history and symptoms must be evaluated before a
physician can diagnose and plan treatment. Certain tests or work-ups may be needed as well.
Once treatment begins, it is necessary to track the patient's reaction and progress and possibly
reevaluate the treatment plan. To assist in the proper care of a patient by the diagnosing
physician, as well as possible future health care givers, documentation of the patient's history,
symptoms, test results, diagnosis, treatment, and progress, is essential.
Each of the psychiatrists that testified at the Panel hearing addressed the issue of whether
medical record keeping is a component of a psychiatrist's standard of professional care. Doctors
Emerick and Gagliano unequivocally stated that a psychiatrist must adhere to certain minimum
record keeping requirements to meet professional competency standards, and both cited specific
items and details which must be included in a patient's record. Direct examination of John P.
Emerick, M.D., (Tr. at pp. 41, 45); Direct examination of Theodore E. Gagliano, M.D., (Tr. at
pp. 95-96 and 102-103). Dr. Emerick cited the following items as "baseline" information which
should be documented in a psychiatric patient's file: personal background; nature and course of
difficulties; family history; prior attempts at treatment by psychiatrist, psychologist, or family
practitioner; evidence of past or present substance abuse; and a mental status evaluation. Direct
examination of John P. Emerick, M.D. (Tr. at pp. 40-41).
Dr. Gagliano testified comparably:
Q. . . . Would you please state for the record, and for the panel, what should a
doctor's file contain? What's the acceptable formula that we have for
that?
A. Well, what I require of the psychiatrists who work under my supervision is
that for each visit progress note that they put down a statement as to what
diagnosis they are holding on this case at this particular time, what the
degree of symptomatology associated with the diagnosis is, and what their
assessment of the current status is, and what their plan for treatment
response is. I require those ingredients in each note. And the rule is, if it
isn't documented, it didn't happen.
. . . .
Q. Of those components that you just talked about, the different statements
and parts, are those the baseline standards that all doctors should follow?
A. In my opinion, yes, it's a basic minimum.
Q. In your expert opinion, that is the standard, the baseline standard?
A. Yes, sir.
Direct examination of Theodore E. Gagliano, M.D., (Tr. at pp. 95-96).
Appellant also admitted that it was a physician's duty to keep adequate records. When
Appellant was asked at the Panel hearing, "So in your mind you feel like that early on you did not
really keep up the record as much as you should, or you feel like that's not a part of the standard
of care," he responded, "I think what it is, it's something that you have to do to carry on, keep the
records going on. You have to document what you've got. I tried various things to do that, but
because of the numbers and what was going on, I couldn't always do that. I think we've got a
system that works now." Appellant's witness, Dr. Morgan, who would not concede that record
keeping is necessarily a facet of a physician's standard care, did testify that a physician's record
should reflect the nature of the patient's problem and the treatment administered and that the
records in question do not reflect the adequacy of the treatment given by Appellant. Cross-examination of Harold Clifford Morgan, M.D., (Tr. at pp. 117, 129-131).
It is within the common understanding and knowledge of medical practitioners generally,
and those specializing in psychiatry specifically, that the failure to keep adequate patient records
is an act of professional misconduct for which the offending physician may be disciplined.
Patient records should, at a minimum, contain enough documented information to ascertain a
patient's history, symptoms, diagnosis, treatment, and response to treatment. For the foregoing
reasons, I conclude that Appellant had fair and adequate notice that the conduct which he was
found to have taken was considered substandard patient care by the State's medical community,
subjecting him to possible sanctions.
B. Notice of charges
Appellant asserts that he was further denied due process because "Board counsel did not
charge the [Appellant] specifically with failure to keep adequate records in the complaint and
therefore, he cannot be held responsible for a charge not made," citing Burdge v. State Bd. of
Med. Examiners, 304 S.C. 32, 403 S.E.2d 114 (1991). (Brief of Appellant at 7). Even if the
complaint were insufficient; however, Appellant understood the issue and was afforded a full
opportunity to litigate it and justify his conduct.
The right of an accused to be fully informed of the offense charged against him is among
the fundamental due process rights essential to a fair trial. The offense with which a party is
charged should be specified so plainly and substantially as to enable the accused to understand
the nature of the offense charged and to allow him to be prepared to meet the charge at the proper
time. Warrants which are vague, indefinite and uncertain do not fully inform the accused of the
nature and the cause of the accusation, and are in violation of Article 1, § 18, of the South
Carolina State Constitution. State v. Randolph, 239 S.C. 79, 121 S.E.2d 349 (1961); McConnell
v. Kennedy, 29 S.C. 180, 7 S.E. 76, 80 (1888).
The Board's Complaint against Appellant is comprised of three primary sections. Section
III contains the factual allegations; Section IV contains the legal charges; and Section V specifies
the Board's disciplinary powers(1). The factual allegations relate to Appellant's care and treatment
of two particular patients. One allegation, the only one in the complaint which directly refers to
inadequate record keeping, alleges:
[Appellant's] patient record of his psychiatric care rendered to the patient is
professionally inadequate. The medical records should document at a minimum a
detailed record of signs and symptoms, a personal history, family and medical
history, as well as a formal mental status evaluation. A documented treatment
plan with clearcut objectives also should have been included, as well as periodic
reviews of its effectiveness in addressing the patient's identified problems.
Informed consent and a review of the risks and benefits of any medication
provided should also have been included. Instead, [Appellant's] patient record
generally consists of basically one or two lines of notes each visit, which is below
the professionally acceptable standard of practice.
(Complaint at 3, ¶ 9).
Although none of the legal violation charges in Section IV, which cite particular code or
regulation sections, mention inadequate record keeping as a ground for charging Appellant with
professional misconduct, the Board argues that inclusion of the factual allegation of
professionally inadequate record keeping is sufficient notice of the charge against Appellant. It is
not necessary, however, to resolve whether the complaint was technically sufficient.
The true test of notice in a contested case setting is whether the licensee understood the
issue litigated and was given a full opportunity litigate it and to justify his actions. "Pleadings in
administrative proceedings are not judged by the standards applied to an indictment at common
law. It is sufficient if the respondent 'understood the issue' and 'was afforded full opportunity'
to justify its conduct during the course of the litigation." Consolidated Gas v. Federal Energy
Regulatory Comm'n, 611 F.2d 951, 959 n.7 (1979) [quoting Aloha Airlines, Inc. v. Civil
Aeronautics Bd., 598 F. 2d 250, 262 (D.C. Cir. 1979)].
Notwithstanding the possible lack of notice prior to the administrative hearing,
due process is not offended if an agency decides an issue the parties fairly and
fully litigated at a hearing. When parties fully litigate an issue they obviously
have notice of the issue and have been given an opportunity to respond. This
satisfies the requirement of administrative due process.
Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 358 (6th Cir. 1992), dismissed on other
grounds, 21 F.3d 429 (1994).
Appellant was afforded full opportunity to explain and justify his conduct during the
course of the litigation. The State announced during opening statements that it intended to prove
that Petitioner failed to document patient treatment adequately. (Panel Transcript at 10).
Throughout the hearing, during the direct and cross-examination of many witnesses, including
Petitioner himself, the State consistently solicited testimony to establish that Petitioner's record
keeping practices violated professionally accepted standards. (Panel Transcript at 20-22; 29; 37;
45-46; 52; 87-88; 103; 128-129; 205-210; 225-232). Although Petitioner may have offered
evidence in mitigation, he did not object to questions or testimony relating to professional
standards of record keeping or his own record-keeping practices. Appellant can show no
evidence that he was surprised or unfairly prejudiced at the contested case hearing by the State's
assertion that his record keeping practices were grounds for a finding of a violation and
imposition of a sanction.
III. The Board properly applied the clear and convincing standard of proof.
The proper standard of proof in a professional disciplinary action against a physician is
clear and convincing evidence. That rule, adopted by the Court of Appeals in Anonymous
(M-156-90) v. The State Board of Medical Examiners, ___ S.C. ___, 473 S.E.2d 870, 878
(Ct. App. 1996) [citing Slomowitz v. Walker 429 So.2d 797, 800 (Fla. Dist. Ct. App. 1983)],
defines the standard as follows:
[C]lear 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.
Appellant claims that the Board failed to apply the proper standard of proof, but the Final
Order states that the findings made and conclusions reached are based upon the clear and
convincing evidence in the record. Appellant's admission that he failed to keep adequate patient
records is overwhelming and uncontroverted evidence of his misconduct.
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. 1996); Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). Based upon a thorough
review of the record, the Board applied the proper standard of proof, and the State carried that
burden.
IV. Sanctions imposed were appropriate.
The Board adopted the findings of the Panel but issued a public reprimand rather than the
recommended private reprimand. In addition, the Board ordered Appellant to participate in a
program and attend a course offered by the Florida Medical Association and the University of
South Florida relating to the prescription of abusable drugs and methods for quality medical
record keeping, or equivalent courses approved by the Board. The Board also ordered the
Appellant's medical records to be subject to random review by the Board for two years.
Appellant attacks the sanctions imposed on two grounds: (a) the Board adopted the
findings of the Panel, but imposed a more severe penalty than recommended by the Panel; and
(b) the sanctions imposed upon Appellant are not within the discretion of the Board to impose
for the violations found. Respondent counters that "[t]he continuing education sanctions and
records reviews are directly related to the record keeping violations. . . ." (Brief of Respondent at
9).
As a creature of statute, the Board possesses "only those powers that are expressly
conferred or necessarily implied for it to effectively fulfill the duties for which it is charged."
Captain's Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 306 S.C. 488, 490; 413
S.E.2d 13, 14 (1991). The legislature has vested the Board with wide latitude in fashioning
sanctions in physician disciplinary cases. S.C. Code Ann. § 40-47-200(A) (Supp. 1996) provides,
in part:
The [Board], if it has reason to believe that grounds exist, may . . . publicly or
privately reprimand the holder of a license to practice medicine . . . or take
other reasonable action short of a revocation or suspension, such as requiring
the licensee to undertake additional professional training subject to the direction
or supervision of the board or imposing restraint upon the medical or osteopathic
practice of the licensee as circumstances warrant until the licensee demonstrates
to the board adequate professional competence.
While the Panel conducts the primary fact-finding inquiry in disciplinary cases, only the
Board, through a majority vote, can impose discipline. § 40-47-200(E)(Supp. 1995). The Panel
"is empowered to hear the matters complained of and to make findings of fact and
recommendations as to the disposition of these matters to the board." § 40-47-211 (Supp. 1996).
The Panel, however, does not have the authority to decide how licensees are disciplined. The
Panel's report contains recommended sanctions only. The Board has the ultimate authority to
impose a sanction, and it may in its discretion impose a penalty more or less than the one
recommended by the Panel.
An administrative sanction cannot be said to be unduly harsh if it is within the Board's
authority to impose. South Carolina Bd. of Examiners in Optometry v. Cohen, 256 S.C. 13, 180
S.E.2d 650 (1971). An administrative tribunal's imposition of a particular penalty is justified,
and not an abuse of discretion, if it is within the sanctions available for the misconduct found.
The exercise of judicial discretion implies conscientious judgment directed by the reason and
conscience of the tribunal, not arbitrary action, to a reach a just result taking into account the law
and particular circumstances of the case. The authority to review the findings of and punishment
imposed in the Board's order is confined to the correction of errors of law. It is not the role of
this Court to substitute its judgment for that of the Board unless it appears that the Board's action
was influenced or controlled by some erroneous view of the law, or was without substantial
evidence to support it, or amounted to a manifest abuse of discretion, the Board's action is final.
State v. White, 218 S.C. 130, 61 S.E.2d 754 (1950).
The Board did not exceed its authority or abuse its discretion in rendering the sanction
imposed upon Appellant. A public reprimand is a common sanction which is clearly provided
for by statute. The additional conditions imposed, continuing professional education and random
periodic review of Appellant's records, are directly and rationally related to the misconduct
found. The sanctions, considered separately and cumulatively, are reasonable and calculated to
safeguard the public by encouraging Appellant to adequately document patient records in the
future.
V. Board's Final Order is a public document upon its issuance, regardless of filing of
appeal.
All proceedings and documents associated with disciplinary complaints and hearings
before the Board are required to be confidential unless the respondent waives that privilege. 26
S.C. Code Ann. Regs. 81-26. Appellant asserts that the Board's Final Order must also remain
confidential until the appellate process is exhausted. Appellant argues that an appeal of the
decision stays publication of the Final Order pending the final outcome of all appeals.
Upon issuance of the Board's Final Order in this matter, the decision and sanction were
made public by the Board. The Board, citing Ewing v. State Board of Med. Examiners, 290 S.C.
89, 348 S.E.2d 361 (1986), and 26 S.C. Code Ann. Regs. 81-27, insists that a final order of the
Board is a public document, and the filing of an appeal does not operate as a stay to publication.
There is no regulation or statute that cloaks a final order in confidentiality unless the order
includes a private reprimand or dismissal.
26 S.C. Code Ann. Regs. 81-27 provides, inter alia:
Final orders of the Board in any disciplinary proceeding shall be issued
upon approval of the Board . . . . All final orders except those orders designated as
private reprimands or dismissals shall be promptly filed with the Federation of
State Boards of Medical Examiners and the Board through its Executive Director
shall cause to be published in the South Carolina biannual summary of its
disciplinary actions. All final orders except those orders designated as private
reprimands or dismissals shall be served upon the County Medical Society of the
Respondent, all South Carolina hospitals in which the Respondent enjoys staff
privileges and upon the President and Executive Director of the South Carolina
Medical Association.
S.C. Code Ann. § 40-47-200(E) (Supp. 1996) provides in part: "No stay or supersedeas
may be granted pending appeal from a decision by the board to revoke, suspend, or restrict a
license for more than six months." As the Final Order in this case subjects Appellant to periodic
random records review for two years, the filing of this appeal can not stay the effect of the
Board's Order. It follows logically that if the effect of the Order itself can not be stayed, its
publication must not either. Further, S.C. Code Ann. § 40-47-213 (1986) provides, "[n]othing
contained in this section may be construed so as to prevent the board from making public a copy
of its final order in any proceeding as authorized or required by law."
The Board's Final Order was properly published upon its issuance. Accordingly, the
correct caption of this appeal should include Appellant's name. Respondent's Motion to Alter or
Amend the Caption is granted.
ORDER
For the foregoing reasons, Respondent's Motion to Alter or Amend Caption to Include
Appellant's Name is hereby granted.
The Final Order of the Board of Medical Examiners is hereby affirmed.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
Columbia, South Carolina
April 24, 1997
1. Sections I and II of the complaint are jurisdictional. |
