ORDERS:
ORDER
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division pursuant to a request for a
hearing by the Appellant. S.C. Code Ann. § 40-15-200 (Supp. 1997). The State Board of Dentistry
instituted a disciplinary action against Dr. Bruce Holdorf for failing to maintain patient records.
Specifically, the Board found that, because the office in which Dr. Holdorf was an employee was
unable to locate the treatment record of a single patient treated by Dr. Holdorf, Dr. Holdorf violated
23A S.C. Code Ann. Regs. 39-11(1-B), which states: "Dentists shall maintain patient records in a
manner consistent with the protection of the welfare of the patient."
The State Board of Dentistry held a contested case hearing on November 16, 1997 and issued
its Final Order and Decision dated November 17, 1997. The Board found that Appellant violated
Regs. 39-11(1-B) and imposed a fine and a probationary status on Dr. Holdorf's license conditioned
on completing course work in record-keeping. Appellant filed a timely appeal with the
Administrative Law Judge Division (ALJD). A stay of the final order was issued by this Court on
March 9, 1998. After the filings of briefs, a hearing was held on March 26, 1998, at the offices of
the Administrative Law Judge Division, Columbia, South Carolina, where the parties presented oral
arguments.
ISSUES PRESENTED
1. Did the Board properly apply the applicable law?
2. Was the Board's decision supported by substantial evidence in the record?
FACTS
The Appellant is a dentist duly licensed in the State of South Carolina, and was so licensed
at all times relevant to this case. Appellant was employed by the Sexton Dental Clinic, which was
owned by another practitioner, Dr. Hoyt L. Eagerton, Jr, on January 24, 1994. Dr. Eagerton
promulgated the record-keeping system for the clinic where Appellant worked. As part of
Appellant's employment agreement with the Clinic, he was required to abide by the Clinic's
policies governing the operation of the clinic, including the management of patient records. As part
of these policies, patients at the Myrtle Beach office of the Clinic were routinely given their charts
to take to the front office for processing of the bill. In addition, the Appellant was not allowed to
have direct access to the files containing patient records. Instead, he was required to request records
from the staff. From time to time during Appellant's employment with the Clinic, he made
suggestions to Dr. Eagerton concerning the record-keeping system. However, those suggestions
were rejected. On or about June 21, 1995, the Appellant extracted four teeth from a patient.
Later that same day, the patient returned for further treatment relating to the extraction. Appellant
checked the patient and advised him regarding the care of the extraction sites. Following the
patient's visit, the Appellant gave the patient's chart to Barbara Fogle, the office manager. Ms.
Fogle, unbeknownst to Appellant, subsequently gave the chart to the patient and instructed him to
take the chart to the front desk. The patient later died for reasons unrelated to his treatment by the
Appellant. However, as part of a civil lawsuit filed by the patient's family, his treatment record was
subpoenaed. In attempting to comply with the subpoena, the Clinic was unable to locate the
patient's chart. The Board subsequently instituted this disciplinary action against the Appellant.
DISCUSSION
Standard of Review
The standard of proof in a medical disciplinary hearing is a preponderance of the evidence.
Anonymous v. Board of Medical Examiners, No. 24754 (S.C. 1998). The standard for review of
a Board decision in the ALJD is codified in S.C. Code Ann. § 1-23-380(B) (Supp. 1997), which
directs the ALJD to apply § 1-23-380(A)(6). Section 1-23-380(A)(6) states: "The court may reverse
or modify the decision if substantial rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions or decisions are:
. . . .
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole
record."
Complaint
Appellant contends that one missing record cannot constitute a violation of Regs. 39-11(1-B). This argument is without merit. The rules and regulations promulgated by the legislature are
designed to protect every patient and all of their records. Appellant's interpretation would gut the
statute of its meaning and the protection it provides to patients and could lead to selective record
loss whenever medical personnel are threatened with legal action or are subject to disciplinary
hearings. Certainly one lost record is one too many.
Circumstantial Evidence
Appellant also argues the Board based its decision on a res ipsa loquitur theory. "Res ipsa
loquitur is a rule of evidence whereby negligence of alleged wrongdoer may be inferred from mere
fact that accident happened. . . ." Black's Law Dictionary 1305 (6th ed. 1990). He argues that this
theory does not exist in South Carolina and thus the decision is legally invalid. "While our
decisions uniformly state that the so called doctrine of res ipsa loquitur does not apply in this State,
they have with equal uniformity recognized that negligence may be proved by circumstantial
evidence as well as direct evidence." Gastineau v. Murphy, 323 S.C. 168, 180, 473 S.E.2d 819 (Ct.
App. 1996), quoting McQuillen v. Dobbs, 262 S.C. 386, 391-392, 204 S.E.2d 732 (1974). While
it is true that the res ipsa doctrine is not recognized in South Carolina, the evidence can clearly be
characterized as circumstantial evidence and may be a completely legitimate basis for a decision.
Circumstantial evidence does not go directly to prove the existence of a fact, but logically implies
that the fact exists. "Any fact in issue may be established by circumstantial evidence if the
circumstances which must be proven lead to the conclusion with reasonable certainty. It is
sufficient if there is evidence from which the fact can properly be inferred. . . . [U]ltimate facts may
be established, and the burden of proof satisfied, by such evidence." Alex Sanders, et al.,
Circumstantial Evidence §§ 14:1, 14:3, Trial Handbook for South Carolina Lawyers (West Group
1997).
Dentist Ownership and Duties
Dr. Hoyt L. Eagerton, Jr., doing business as the Sexton Dental Clinic (Clinic), employed Dr.
Holdorf to work at the Clinic, which maintains locations in Florence and Myrtle Beach. Eagerton,
as specified in the employment contract, controlled the day-to-day operation of the Clinic and held
exclusive control over the hiring and firing of all employees.
The Respondent suggests that if a dentist/employee is not held responsible it could lead to
adverse results in a situation where a nondentist was the owner of the business and not subject to
the Board's jurisdiction. The Respondent also argues that the employment contract cannot
supersede the statutorily prescribed duties or responsibilities of the dentist. However, these
arguments are not applicable to the facts of this case.
Dr. Eagerton -- a dentist, owner of the Clinic, and employer of Holdorf -- is subject to the
same duties, obligations and responsibilities as Appellant, and hired the Appellant to perform
services under the terms of an employment contract. Eagerton owed the same duty of care and was
bound by the same ethical guidelines as Appellant under the applicable statutes and regulations,
including the duty to "maintain patient records in a manner consistent with the protection of the
welfare of the patient." 23A S.C. Code Ann. Regs. § 39-11(1-B).
The employment contract does not in any way abrogate those lawful and ethical
requirements. The policies and procedures implemented via the contract provisions were written
by a dentist and subject to the same duty of care and statutory scrutiny as if they had been written
by Appellant. Appellant had no reason to initially suspect that the policies were deficient or not in
compliance, and when a problem became apparent Appellant attempted to correct the situation. In
no place does the contract seek to override the statutorily prescribed duties of a dentist.
The contract also establishes an agency relationship where the responsibility for the records
may be transferred from one dentist to another, where both dentists are under the same duty of care.
In a case where a non-dentist owner implemented practices that were substandard, then the dentist
would likely be responsible for the end result if a violation occurred because he would be solely
responsible for the regulations and ethical duty owed a patient by a dentist.
Agency
"The relationship of agency need not depend upon express appointment and acceptance
thereof. Generally, agency may be, and frequently is, implied or inferred from the words and
conduct of the parties and the circumstances of the case." Banker's Trust of S.C. v. Bruce, 283 S.C.
408, 423, 323 S.E.2d 523, 532 (Ct. App. 1984).
Where one who performs work for another represents the will of that
other, not only as to the result, but also as to the means by which the
result is accomplished, he is not an independent contractor but an
agent; and the relationship is one of agency when the employer
reserves control and an interest in the performance of the work other
than the finished product, or where the contract shows a recognition
of the responsibility of the employer for obligations incurred by the
other party.
Chatman v. Johnny J. Jones Exposition, Inc., 212 S.C. 215, 219-220, 47 S.E.2d 302, 304 (1948).
It is clear from a review of the testimony that the Appellant was aware of what was
apparently a common practice in the Myrtle Beach office of patients handling their own files.
Further, it is apparent that Appellant was powerless to take the necessary steps to correct the
situation, since Eagerton held sole control over employees and office policies. Several attempts at
suggesting better record-keeping methods were rejected. Appellant safeguarded approximately 80
records himself after the office manager refused to file reference letters and pathology reports from
oral surgeons upon his request.
The Appellant was not allowed in the record room. He could not hire or fire office
personnel; their employment contracts are directly with the Clinic. Dr. Eagerton was the owner and
supervisor of the Clinic. His policies were those applied and enforced at the Clinic, as directed by
the employment contract. Fogle, as office manager, implemented these policies. The office
manager was not under the control of the Appellant, but was accountable only to Eagerton. If the
Appellant was in control of the office and had any authority over the office manager, he would not
have felt obligated to keep patient records for the protection of his patients, and his record-keeping
suggestions would not have been suggestions, but rather orders. Accordingly, under these
circumstances, Fogle's employment by Eagerton and the Clinic, and her position as office manager,
made her an agent for Eagerton and the Clinic.
Responsibility for the Records
Generally, the principal is held liable to third persons in civil suits
for the following: "frauds, deceits, concealments,
misrepresentations, negligences, and other malfeasances and
omissions of duty of his agent in the course of his employment,
although the principal did not authorize or justify or participate in,
or indeed, know of such misconduct, or even if he forbade the acts
or disapproved of them. In all such cases, the rule applies
respondeat superior; and it is founded upon public policy and
convenience, for in no other way could there be any safety to third
persons in their dealings, either directly with the principal, or
indirectly with him through the instrumentality of agents. In every
such case the principal holds out his agent as competent and fit to be
trusted, and thereby, in effect, he warrants his fidelity and good
conduct in all matters within the scope of the agency."
Rickborn v. Liberty Life Ins. Co., 321 S.C. 291, 300-301, 468 S.E.2d 292, 298 (S.C. 1996), quoting
Huestess v. South Atlantic Life Ins. Co., 88 S.C. 31, 70 S.E. 403, 407 (S.C. 1911).
Appellant has met his duty of care with regard to the patient's records. Once the patient's
records were in the control of his employer, Clinic or the Clinic's agent, then responsibility for
maintaining proper records should correspondingly shift with the custody of the records to the
principal -- in this case the employer Eagerton and Clinic. As the principal, employer and as a
dentist, Eagerton owes the same duty of care and responsibility to the patients of the Clinic as the
treating dentist. Eagerton's and the Clinic's agent, Fogle, admits the record was in her possession
prior to the disappearance. Therefore, the responsible party is the principal of that agent -- here
Eagerton. Appellant relinquished control of the record, and therefore duty and responsibility, to
another individual who was bound by her principal/agent relationship to exercise the same duty of
care as Appellant.
As the hearing board notes, someone ultimately must be responsible for the patient's
records. The Appellant was responsible while the records were in his possession and control.
When an agent of Eagerton's took control over the records, then the responsibility and care shifts
to the principal of that agent. Thus, this responsibility to exercise the care as prescribed in the
regulations fell on Eagerton as the principal, and if the records were lost under his agent's care, then
Eagerton as the principal is responsible under the doctrine of respondeat superior, which holds the
principal responsible for the actions of an agent. See Rickborn, 321 S.C. at 300-301.
In light of the implications of the principal/agent relationships that existed between the
office manager, Eagerton and the Sexton Clinic, the shared duty and responsibility to the patient
and the patient's records, and the undisputed fact that the Appellant had absolutely no control over
the manner of recordkeeping in the Clinic, the Board committed an error of law. It misapplied the
appropriate body of law to the facts. Considering the principal/agent relationship which exists
herein, there is not substantial evidence in the record to support a finding that Appellant violated
Regulation 39-11(1-B) for failing to maintain proper records.
ORDER
Based upon the foregoing discussion of the applicable law, it is hereby ORDERED,
that the Final Order of the State Board of Dentistry is REVERSED.
AND IT IS SO ORDERED.
__________________________________
Marvin F. Kittrell
Chief Judge
June 1, 1998
Columbia, South Carolina |
