SC Administrative Law Court Decisions

This matter comes before me on appeal from a December 11, 1997 Order of the State Board of Medical Examiners (Board). The Disciplinary Panel of the Board held an evidentiary hearing concerning certain charges against the Petitioner. Following that hearing, the Board issued its Final Decision in which it adopted the Findings of Fact of the Disciplinary Panel, which had recommended dismissal of the charges, but found a violation by Appellant of S.C. Code Ann. § 40-47-200 (F)(7), specifically S.C. Code Ann. Regs. 81-60(A) (Supp. 1997), for failure to provide competent medical service with compassion and respect for human dignity and issued a private reprimand. This appeal followed.

The Appellant sets forth the following issues on appeal in his brief: 1) the Board's decision is contrary and inconsistent with the facts presented to the Board and is clearly erroneous in light of the evidence in the record, and 2) the Board's decision is arbitrary, capricious and constitutes and abuse of discretion. For the following reasons, I conclude that the decision of the Board must be reversed.

Jurisdiction on appeal is vested in the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §§ 1-23-600 (Supp. 1997) and 40-11-350 (Supp. 1997). On appeal to the Division, the standard of review is limited to the record presented. An administrative law judge may not substitute his judgment for that of the agency unless the agency's determination is affected by error of law or is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1997); Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).

Appellant, a physician certified by the Board in Internal Medicine, was employed by Tuomey Hospital in February of 1994. Appellant first saw the patient in question, Ms. Doe, on February 8, 1994 for depression. Ms. Doe's last appointment with Appellant was May 2, 1994. She received no other treatment or prescriptions from the Appellant after that last visit. Appellant and Ms. Doe began a dating relationship, initiated by Ms. Doe, in late August of 1994, under the condition imposed by Appellant that this new social relationship would preclude any resumption of the doctor-patient relationship. The dating relationship ended in late September of early October of the same year. Although Ms. Doe did return to Appellant requesting medical assistance in December of 1994 because she was experiencing symptoms of depression, Appellant referred her to the Department of Mental Health and provided no medical care or treatment at that time.

A Complaint was filed with the Board in July of 1997 by a third party, alleging that the Appellant violated S.C. Code Ann. §§ 40-47-200(F)(7) and (8) and S.C. Code Ann. Regs. 81-60(A) and (B) by engaging in a sexual relationship between August and October of 1994 with a patient who was under his care. Appellant denied any wrongdoing or unethical conduct with his former patient, Ms. Doe. An evidentiary hearing was held before the Medical Disciplinary Commission of the Board of Medical Examiners (Disciplinary Panel) in October, 1997. The Disciplinary Panel found no violations of any statute or regulation and recommended dismissal by the Full Board. The Full Board adopted the Findings of Fact of the Disciplinary Panel. However, the Board concluded that Appellant violated S.C. Code Ann. § 40-47-200(F)(7), specifically S.C. Code Ann. Regs. 81-60(A), by failing to provide competent medical service with compassion and respect for human dignity, as evidenced by his sexual intercourse with an individual who had recently been his patient. Appellant was issued a private reprimand and this appeal followed.

Appellant claims that the Board's decision is contrary to and inconsistent with the facts presented, and is clearly erroneous in light of the evidence of record. On appeal, a court may not substitute its judgment for that of an agency unless the agency's findings are clearly erroneous in view of the reliable, probative and substantial evidence in the entire record. Grayson v. Carter-Rhoad Furniture, 317 S.C. 306, 454 S.E.2d 340 (1992). If reasonable minds can draw two inconsistent conclusions, the administrative agency's decision can still be supported by substantial evidence. Ellis v. Spartan Mills, 276 S.C. 216, 277 S.E.2d 590 (1981).

Appellant is charged with violating S.C. Code Ann. § 40-47-200(F)(7), and specifically Regs. 81-60(A), for allegedly failing to provide competent medical service with compassion and respect for human dignity as a result of the one act of sexual intercourse with a former patient, Ms. Doe. There is no evidence in the record indicating that Appellant treated Ms. Doe's depression in any manner other than a competent manner; this was conceded by the Respondent at the initial hearing. In addition, there is no evidence that Appellant treated Ms. Doe without compassion and respect for human dignity. "Compassion" is defined in The American Heritage College Dictionary, 3d ed., 1993, at 284, as a "deep awareness of the suffering of another coupled with the wish to relieve it." "Dignity" is defined in the same dictionary as "the quality or state of deserving esteem or respect." Id. at 389. At no time during the doctor-patient relationship did Appellant engage in any improper conduct towards Ms. Doe, act discourteously towards her or exhibit any lack of respect for her person. Moreover, Appellant did not use his position as Ms. Doe's former physician to coerce her or influence her into a sexual relationship. The undisputed evidence on the record reflects that it was Ms. Doe who pursued an active relationship with Appellant.

The doctor-patient relationship between Appellant and Ms. Doe was terminated in early May of 1994, so any sexual relationship between the two parties after that time is not an infringement on

the doctor-patient relationship. The Board's decision to sanction Appellant for a violation of Regs. 81-60(A) is without merit and unsupported by the substantial evidence in the record.

Appellant also claims that the Board's decision is arbitrary, capricious and constitutes an abuse of discretion. 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). The Full Board adopted the Findings of Fact of the Disciplinary Panel. The Disciplinary Panel found no violations of any statute or regulation and cited a number of mitigating factors, such as Appellant's discussions with Ms. Doe prior to the relationship concerning its effect on resumption of the doctor-patient relationship, and the mental capacity of Ms. Doe to consent and her actual consent to the relationship. Further, the Disciplinary Panel found that it was Ms. Doe, and not Appellant, who actually pursued the relationship. The Board was aware of all these mitigating factors and incorporated the Panel's findings as its own findings of fact, but disregarded them in finding a violation and imposing a sanction. Thus, its final decision is arbitrary since it was not based on the facts and evidence of record, and constitutes an abuse of discretion.

The Board's decision to privately sanction Appellant was clearly erroneous in view of the reliable, probative and substantial evidence in the whole record of the case. It was arbitrary and represented an abuse of discretion. Therefore, the decision of the Board is hereby reversed and the decision of the Disciplinary Panel is affirmed as the Order of this Court.

AND IT IS SO ORDERED.

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Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

August 25, 1998