ORDERS:
ORDER
STATEMENT OF THE CASE
Pursuant to S.C. Code Ann. §§ 1-23-380 and 40-15-210 (Supp. 1997), Appellant Jimmy L.
Gardner appeals a Final Order of the South Carolina Department of Labor, Licensing and Regulation,
State Board of Dentistry (Board) dated April 28, 1998. The Board's Order permanently revoked
Appellant's license to practice dentistry, effective May 30, 1998, based on its finding that Appellant
violated S.C. Code Ann. § 40-15-190(A)(14) (Supp. 1997) by failing to meet the standard of care
in the practice of dentistry. A temporary restraining order issued by this tribunal on May 29, 1998,
and a Stay Pending Appeal issued on June 8, 1998, enjoined the Board from enforcing the revocation
of Appellant's license. Briefs were filed in support of and in response to the appeal. Upon careful
consideration of the record, applicable law, and counsel's arguments, the Board's April 28, 1998
revocation of Respondent's license is affirmed. The Board's finding that Appellant's departure from
the standard of care contributed to the patient's subsequent hospitalization is reversed.
BACKGROUND
Appellant is licensed to practice dentistry in South Carolina and he maintains his practice in
Orangeburg, South Carolina. The complaint against Appellant arises from his treatment of a
seventy-nine year old patient on July 15, 1997. The patient visited Appellant's office on this date
complaining of a "swollen face." She testified in her deposition that when she went to Appellant's
office, she had a "big knot" under the right side of her jaw, and that she thought she had the mumps.
When the patient arrived at Appellant's office, she was asked to complete a questionnaire
form.(1) On this form, the patient described her complaint as "[s]wollen face." The first question on
the medical history portion of the questionnaire form was: "Has there been any problem in your
general health within the past 5 years?" The patient's written response was: "Sugar." The form also
asked for the date of the patient's last medical checkup, to which the patient responded "1996." The
form also asked if the patient was currently under a physician's care, to which the patient responded
"Yes." The form also listed several medical diseases or problems and asked the patient to check off
those which the patient had currently or in the past. The patient checked off the following
categories: 1. "Pain in chest, shortness of breath, swollen ankles" 2. "Abnormal bleeding,
prolonged healing, bruises easily" 3. "Arthritis" 4. "Diabetes" 5. "Sores that do not heal within
one week." There was no indication of any allergy to antibiotics.
Appellant testified that he went over the medical questionnaire with the patient. Appellant
further testified that he examined the patient and perceived no external swelling or signs of fever on
either side of her face and saw no swelling of the jaw or down in the neck. Appellant did see
swelling around some root tips and decay on the top of root fragments where the teeth had rotted
away.(2) The gum tissue around the root tips was hyperplastic (increased in size). Appellant noticed
the presence of bacteria through the canal system near one of the root tips, but determined that
removal of the root tip would bring about a resolution.
Based on his physical examination, x-rays, and the health history obtained from the patient,
Appellant determined that the indicated procedure was to remove the root tips. After removing the
root tips, Appellant sutured the gum tissue back into place with two sutures. Appellant testified that
he made sure that the patient's blood was clotting properly before he released her. Appellant did not
prescribe antibiotics to the patient. The patient left Appellant's office, and Appellant did not hear
from her again.
At the time of the procedure, the patient was taking Coumadin, an anticoagulant or blood
thinner. The patient did not disclose her use of this medication to Appellant either on her completed
medical history form or in oral questioning by Appellant prior to the procedure. Appellant
acknowledges that he did not specifically ask the patient if she was taking Coumadin, but he asked
her if she was taking any medications, and she told him she was taking high blood pressure
medication. Appellant also verified with the patient that she was not insulin dependent.
Several days later, the patient went to her physician, Dr. Marcus, for a regularly scheduled
visit. Dr. Marcus indicated that he wanted the patient to be admitted into the hospital.(3) His reason
for recommending hospitalization is indicated in the hospital admission form and the discharge
summary as marked swelling of the patient's face, with bleeding, following a tooth extraction. The
hospital admission form noted the diagnosis as "[c]ellulitis of the face and submandibular area."(4)
At 6:30 p.m. on July 18, 1997, Dr. Marcus ordered a test to determine the patient's clotting
time. The July 19, 1997 test results indicated that the patient's clotting time was extremely
protracted. On the morning of July 19, 1997, Dr. Marcus requested a consultation with Dr. Klinger,
an oral surgeon. Sometime during the day on July 20,1997, Dr. Klinger examined the patient. He
stated in his initial consultation notes: "This [patient] had teeth removed from the right mandibular
14 July 1997 [sic] by Dr. Gardner. Pt. continued to bleed from surgical site the entire week and
developed infection of the submental space. . . . Gross swelling of the submental space . . . ."
(Consultation Request, 7-20-98).(5) Based on this evaluation, Dr. Klinger scheduled surgery for the
next day. Dr. Klinger noted the diagnosis as "[a]cute abscess of the submental space." He
performed an incision and drainage of the submental space on the outer face. The patient was
released from the hospital on July 25,1997. The hospital's Discharge Summary noted the final
diagnosis as:
1. Abscess submandibular.
2. Coumadin toxicity.
3. Bleeding tooth extraction.
4. Arteriosclerotic heart disease with auricular fibrillation.
5. Diabetes mellitus.
6. Ulceration of the left lower leg.
The Discharge Summary also noted that the "[p]rimary reason for this patient's admission to the
hospital she [sic] had marked swelling of her face with bleeding from teeth extraction and marked
swelling of the submandibular area anteriorly."
Upon a complaint filed by Dr. Klinger, who later testified in this case as the State's only
witness, the Board investigated Appellant's conduct in his treatment of this patient. The Board
determined that Appellant failed to adequately assess the patient, failed to consult with the patient's
prescribing physician or have the patient's existing medications adjusted, and failed to prescribe
post-operative antibiotics when antibiotics were indicated. The Board concluded that Appellant's
conduct was "outside the range of acceptable dental practice." In its Final Order dated April 28,
1998, the Board ordered Appellant's license to practice dentistry revoked, and specifically found that
Appellant's prior discipline by the Board was considered in developing a sanction.(6)
STANDARD OF REVIEW
The provisions of the South Carolina Administrative Procedures Act (APA) govern an appeal
from an action of the Board. Lark v. Bi-Lo. Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). Under the
APA, this tribunal "shall not substitute its judgment for that of the agency as to the weight of the
evidence on questions of fact." S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1997). This tribunal,
however, may reverse or modify the decision of the Board if substantial rights of the appellant have
been prejudiced because the administrative findings or decisions are "clearly erroneous in view of
the reliable, probative and substantial evidence on the whole record" or "arbitrary or capricious."
Id.
Substantial evidence is that evidence which, in considering the record as a whole, would
allow reasonable minds to reach the conclusion that the administrative agency reached. E.g.,
Jennings v. Chambers Development Co., Op. No. 2877 (S.C.Ct.App. filed August 10, 1998) (Shealy
Adv.Sh. # 28 at 23). The possibility of drawing two inconsistent conclusions from the evidence does
not prevent an administrative agency's finding from being supported by substantial evidence. Id.
Where there is a conflict in the evidence, the administrative agency's findings of fact are conclusive.
Id.; see also Harbin v. Owens-Corning Fiberglas, 316 S.C. 423, 450 S.E.2d 112 (Ct. App. 1994)
(existence of any conflicting opinions between doctors is a matter left to the administrative agency).
This tribunal cannot substitute its judgment for that of the Board upon a question as to which there
is room for a difference of intelligent opinion. See, e.g., Chemical Leamen Tank Lines v. South
Carolina Pub. Serv. Comm'n, 258 S.C. 518, 189 S.E.2d 296 (1972). While a decision of an
administrative agency will normally be upheld, the findings may "not be based upon surmise,
conjecture, or speculation, but must be founded on evidence of sufficient substance to afford a
reasonable basis for it." Mullinax v. Winn-Dixie Stores, Inc., 318 S.C. 431, 458 S.E.2d 76 (Ct. App.
1995).
The burden is on the appellant to show convincingly that the Board's order is without
evidentiary support or is arbitrary or capricious as a matter of law. See Hamm v. Public Service
Commission of South Carolina, 310 S.C. 13, 425 S.E.2d 28 (1992); Hamm v. American Tel. & Tel.
Co., 302 S.C. 210, 394 S.E.2d 842 (1990).
ISSUES ON APPEAL
I. Is the decision of the Board supported by substantial evidence in the
record?
a. Was there substantial evidence of Appellant's departure from the applicable standard
of care?
b. Was there substantial evidence to support the Board's finding that Appellant's
departure from the standard of care contributed to the patient's subsequent
hospitalization?
II. Was the sanction imposed by the Board arbitrary and capricious?
III. Was the decision of the Board tainted by unlawful procedure?
DISCUSSION
I. Substantial Evidence
a. Departure from standard of care
The actions or omissions which qualify as misconduct and constitute grounds for
revocation of a dentist's license are set forth in S.C. Code Ann. § 40-15-190 (Supp. l997).
According to the statute, when a dentist has "failed to meet the standards of care in the practice of
dentistry," such misconduct is a proper ground for revocation of his license. The findings and
conclusions of the Board must be examined in light of the record in order to determine if the Board's
decision is supported by substantial evidence.
The standard of care in the practice of dentistry is not set forth in statutory law, but is
sufficiently defined by case law. In Cox v. Lund, 286 S.C. 410, 334 S.E.2d 116 (1985), the Court
established the two prong standard that must be satisfied by a plaintiff in a medical malpractice suit.(7)
This two prong standard is similarly applied in this case when reviewing the Board's decision, as the
inquiry is whether there is a departure from the established medical standard of care. For the
Board's decision to be upheld on appeal, the substantial evidence in the record must indicate that the
State (1) presented evidence of the generally recognized practices and procedures which would be
exercised by competent dentists under the same or similar circumstances, and (2) presented evidence
that the dentist departed from the recognized and generally accepted standards, practices and
procedures in the manner alleged by the State. See Cox, 286 S.C. at 411, 334 S.E.2d at 118. The
standard of care that must be observed by a dentist in his practice is that of an average, competent
dentist acting in the same or similar circumstances.(8) See King v. Williams, 276 S.C. 478, 279 S.E.2d
618 (1981). Since the subject matter in the instant case lies outside the realm of general knowledge,
expert testimony must be used to establish the required standard of care. Pederson v. Gould, 288
S.C. 141, 341 S.E.2d 633 (1986), citing Botehlo v. Bycura, 282 S.C. 578, 320 S.E.2d 59 (Ct. App.
1984); see also Gooding v. St. Francis Xavier Hospital, 326 S.C. 248, 487 S.E.2d 596 (1997).
In the present case, the Board's only expert witness failed to sufficiently establish the
applicable standard of care and Appellant's departure therefrom.(9)
However, the standard of care and
Appellant's departure therefrom was established through substantial evidence from Appellant's own
expert witnesses, Dr. Glenn and Dr. Frick. These witnesses initially testified that the prescription of
post-operative antibiotics is a judgment call. Upon detailed examination by members of the Board,
however, both experts admitted that the applicable standard of care under all of the circumstances
presented to Appellant on July 15, 1997 required a more thorough assessment of the patient's
medical history, including contacting the patient's treating physician, and also required prescribing
post-operative antibiotics. (Transcript, February 13, 1998, p. 115, l. 5-p. 125, l. 18; Transcript, April
24, 1998, p. 17, l. 4-24; p. 23, l. 4-8; p. 28, l. 25-p. 29, l. 19; p. 39, l. 10-p. 41, l. 11; Medical History
questionnaire dated July 15, 1997; Deposition of O.M.D., p. 5, l. 2-4; p. 14, l. 20-23). Both experts
admitted that if a patient presented herself with the conditions presented by the patient in this case,
the generally accepted practice would be to prescribe post-operative antibiotics. Further, it is
undisputed that Appellant did not contact the patient's treating physician to learn more about the
patient's existing conditions and he did not prescribe post-operative antibiotics for the patient.
Appellant argues that the pertinent questions posed by Board members to Dr. Frick and Dr.
Glenn contained incorrect assumptions of fact, and therefore the testimony of these witnesses in
response thereto is not probative on the standard of care. Although certain initial questions of Board
members did contain some facts unsupported by the record, later questions were confined to reliable
evidence in the record. Appellant's witnesses responded to these later questions with an admission
that the applicable standard of care required contacting the patient's treating physician and
prescribing post-operative antibiotics.(10)
Although this tribunal might have weighed the evidence differently had it been in the position
of the trier of fact, appellate review of the Board's findings does not allow a re-weighing of the
evidence. If there is room for a difference of opinion among reasonable minds, this tribunal is not
allowed to substitute its judgment for that of the Board. See, e.g., Chemical Leamen Tank Lines v.
South Carolina Pub. Serv. Comm'n, 258 S.C. 518, 189 S.E.2d 296 (1972). In this case, a review of
the whole record reveals that there was conflicting evidence on the applicable standard of care,
including relevant evidence which a reasonable mind might accept as adequately supporting the
Board's conclusion. While the State's case-in-chief did not support the Board's finding, the
testimony of Appellant's expert witnesses did support those findings. Therefore, the Board's
findings on the standard of care are conclusive, and this tribunal is compelled by South Carolina
precedent to defer to those findings. E.g., Jennings v. Chambers Development Co., Op. No. 2877
(S.C.Ct.App. filed August 10, 1998) (Shealy Adv.Sh. # 28 at 23); Wilson v. State Board of Medical
Examiners, 305 S.C. 194, 406 S.E.2d 345 (1991).
b. Causation
In addition to finding that Appellant departed from the applicable standard of care,
the Board found that Appellant's "inadequate assessment contributed to the patient's subsequent
hospitalization for continuous bleeding and abscess." (Board's Final Order at 2). After careful
review of the whole record, I conclude that this finding was not supported by substantial evidence.
When the testimony of an expert witness is not relied upon to establish proximate cause, it
is sufficient for plaintiff to put forth some evidence which rises above mere speculation or
conjecture. See Armstrong v. Weiland, 267 S.C. 12, 225 S.E.2d 851 (1976). However, when the
opinions of medical experts are relied upon to establish causal connection of negligence to injury,
the proper test to be applied is that the expert must, with reasonable certainty, state that in his
professional opinion the injuries complained of most probably resulted from the alleged negligence.
The evidence in the record is purely circumstantial and it does not rise above mere
speculation or conjecture. Further, no causal link between Appellant's departure from the standard
of care and the patient's later hospitalization was established through expert testimony. Therefore,
I find that the Board erred in finding that Appellant's inadequate assessment contributed to the
patient's subsequent hospitalization for continuous bleeding and abscess. The Board's sanction,
however, is not affected by this error, as resultant harm to a patient from a physician's treatment is
not a necessary element to establish misconduct. See S.C. Code Ann. § 40-15-190(A)(14) (Supp.
1997) ("Misconduct which constitutes grounds for revocation . . . occurs when the holder of a license
or certificate . . . has failed to meet the standards of care in the practice of dentistry. . . ."); see also
Wilson v. State Board of Medical Examiners, 305 S.C. 194, 406 S.E.2d 345 (1991) (dicta, quoting
Levy v. Board of Registration & Discipline, 378 Mass. 519, 392 N.E.2d 1036 (1979)) (revocation
of physician's license is designed not to punish physician, but to protect the public); Morfesis v.
Sobol, 567 N.Y.S.2d 954 (1991) (in sanctioning professional in disciplinary proceedings, it is
unnecessary to establish actual harm to an individual patient as applicable disciplinary statute was
enacted to protect the welfare of the general public who deal with state-licensed practitioners); cf.
Toussaint v. State Bd. of Medical Examiners, 303 S.C. 316, 400 S.E.2d 488 (1991) (statute
providing that a lack of professional competence constitutes misconduct for which a physician may
be disciplined was sufficiently definite to provide notice that a physician must conform his conduct
to those standards of competence acceptable within the medical community of this State).
II. Sanction
Appellant argues that the imposition of the sanction chosen by the Board's was arbitrary and
capricious, especially in light of lesser sanctions imposed by the Board in other cases.(11) While this
tribunal may not necessarily agree with the Board's chosen sanction in this case, it may not substitute
its judgment for that of the Board.
A decision is arbitrary if it is without a rational basis, is based alone on one's will and not
upon any course of reasoning and exercise of judgment, is made at pleasure, without adequate
determining principles, or is governed by no fixed rules or standards. Deese v. South Carolina State
Bd. of Dentistry, 286 S.C. 182, 332 S.E.2d 539 (Ct. App. 1985). Under S.C. Code Ann. § 40-15-200
(Supp. 1997), the Board is expressly authorized to revoke or suspend a dentist's license, reprimand
a dentist, or take any other reasonable action short of license revocation or suspension for any
offense set forth in Chapter 15 of Title 40 of the South Carolina Code. Id.; cf. Gale v. State Bd. of
Medical Examiners, 282 S.C. 474, 320 S.E.2d 35 (Ct. App. 1984) (interpreting disciplinary statute
governing physicians). Sections 40-15-190 and -200 give the Board the discretion of matching the
measure of discipline to the specific case. The Board need not exercise its discretion identically in
every case. Deese, 332 S.E.2d at 541.
'A penalty that is within the authority of the agency is not rendered
invalid in a particular case because it is more severe than sanctions
imposed in other cases' and 'mere unevenness in the application of
the sanction does not render its application in a particular case
unwarranted in law.' [citation omitted]
Deese, 332 S.E.2d at 541.(12)
Finally, the sanction imposed by the Board should be guided first and foremost by its duty
to protect the public and not to punish the practitioner. See Wilson v. State Board of Medical
Examiners, 305 S.C. 194, 406 S.E.2d 345 (1991) (dicta, quoting Levy v. Board of Registration &
Discipline, 378 Mass. 519, 392 N.E.2d 1036 (1979)) (revocation of physician's license is designed
not to punish physician, but to protect the public); Morfesis v. Sobol, 172 A.D.2d 897, 567 N.Y.S.2d
954 (N.Y.A.D. 3 Dept., 1991) (applicable disciplinary statute was enacted to protect the welfare of
the general public who deal with state-licensed practitioners). In light of the Board's duty to protect
the public, this tribunal cannot find that the sanction imposed on Appellant was arbitrary and
capricious.
III. Unlawful Procedure
In fashioning a sanction, the Board considered Appellant's previous misconduct. "After
concluding that the [Appellant's] conduct in this matter constituted a violation of the practice act,
the [Appellant's] prior discipline was considered in developing a sanction." (Board's Final Order
at 3). The August 17, 1995 Order suspended Appellant's license for five years, but required him to
serve only one year of the suspension and placed him on probation for the remaining four years,
provided that certain listed conditions be met. (Final Order dated August 17, 1995).
Appellant now argues that the Board's consideration of his prior discipline in determining
a sanction in this matter was erroneous. Appellant asserts that the Board is not authorized by statute
to consider prior discipline in determining a sanction in the current case, and that section 40-15-200
requires sanctions to be based solely on misconduct charged in the formal accusation. Appellant
asserts that the formal complaint in this case did not assert that any prior discipline would be
considered in determining an appropriate sanction if misconduct was found, and therefore he was
not provided with the requisite notice under due process standards that his prior discipline would be
considered.
At the conclusion of the proceedings below, counsel for Respondent submitted the August
17, 1995 Order to the Board under seal and instructed the Board to open the sealed envelope and
consider the contents only in the event that it found misconduct in this case. Appellant consented
to this procedure and therefore may not now complain of its invalidity on appeal. E.g., State v.
Hoffman, 312 S.C. 386, 440 S.E.2d 869 (1994) (contemporaneous objection is required to preserve
issue for appellate review); Woods v. Rabon, 295 S.C. 343, 368 S.E.2d 471 (Ct. App. 1988) (if
neither party timely objects to evidence of issues not raised in the pleadings, each is deemed to
impliedly consent to the trial of those issues).
In any event, section 40-15-190(A)(14) clearly provides that failure to meet the standards of
care in the practice of dentistry constitutes grounds for license revocation. Therefore, even if the
Board had not considered Appellant's previous misconduct, it could have properly revoked
Appellant's license based solely on his departure from the standard of care in this case. Cf. Gale v.
State Bd. of Medical Examiners, 282 S.C. 474, 320 S.E.2d 35 (Ct. App. 1984) (Board of Medical
Examiners was not required by statute to invoke certain sanctions for certain violations; a showing
of any misconduct listed in the governing statute may result in license revocation, suspension,
restriction or limitation). Therefore, any possible irregularity in the Board's consideration of
Appellant's prior discipline does not affect the validity of the revocation of his license. See State
Board of Medical Examiners v. Gandy, 258 S.C. 349, 188 S.E.2d 846 (1972).
Moreover, Appellant's argument that section 40-15-200 requires sanctions to be based solely
on misconduct charged in the formal accusation is based on a forced construction which unnaturally
limits its scope. Section 40-15-200 gives the Board discretion to tailor the measure of discipline to
the specific case, and nothing in the statute prohibits the Board, which is charged with the duty of
protecting the public, from considering prior misconduct in determining the appropriate sanction for
a particular licensed individual. The plain language of section 40-15-200 allows the Board to
determine what sanction is appropriate after it has made a determination that a dentist is guilty of the
misconduct charged in the formal accusation; it does not state that the Board cannot then consider
prior misconduct in conjunction with the current misconduct in determining the appropriate
sanction.(13) Therefore, this tribunal must reject Appellant's construction of section 40-15-200. See
Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993) (The language used should be given its plain
and ordinary meaning without resort to subtle or forced construction to expand or limit the scope of
a statute).
ORDER
IT IS THEREFORE ORDERED the State Board of Dentistry's revocation of Appellant's
license is affirmed.
IT IS FURTHER ORDERED that the Board's finding that Appellant's departure from the
standard of care contributed to the patient's subsequent hospitalization is reversed.
AND IT IS SO ORDERED.
____________________________
JOHN D. GEATHERS
Administrative Law Judge
September 16, 1998
Columbia, South Carolina
1. Unknown to Appellant at the time, the patient's daughter completed the written
questionnaire.
2. Root tips are those portions of the tooth that are left after the exposed portion of the
tooth has rotted away. The patient had no teeth left and had only three root tips in her mouth.
3. The patient waited until the next afternoon, July 18, 1997, to admit herself to the
hospital.
4. "Cellulitis" is the diffuse inflammation of connective tissue under the skin. Webster's
Ninth New Collegiate Dictionary (1986). "Submandibular" means situated below the lower jaw.
Id.
5. The patient testified in her deposition that she did not have continued bleeding in the
days following her visit to Dr. Gardner.
6. Appellant was previously disciplined by the Board by its Order dated August 17, 1995.
7. Unlike in malpractice actions, injury resulting from a departure from the standard of care
need not be established in disciplinary proceedings under section 40-15-190.
8. The Board found that Appellant's treatment of this patient was an "emergency dental
procedure." (Board's Final Order, page 1, ¶ 2.) The basic standard of care, however, does not
change - only the surrounding circumstances (here, the exigency of the situation), which are
unique to each case in any event, change. See Restatement (Second) Torts § 296 (1965).
Trained professionals are still held to a standard of competency under those emergency
circumstances for which they are trained to handle. Id., at comment "c." Thus, the standard of
care for an emergency dental procedure is the recognized practices and procedures which would
be exercised by competent dentists under the same or similar emergency circumstances.
9. The Board's expert, Dr. Klinger, stated that he believed that the dentist failed to meet the
standard of care. However, Dr. Klinger never defined the standard from which Appellant
departed; it can only be inferred from Dr. Klinger's testimony that Appellant failed in certain
particulars: Appellant failed to properly assess the patient, failed to prescribe antibiotics, and
failed to obtain an appropriate preoperative history.
10. Appellant specifically argues that Board members' questions assumed a presentation of
"very large swelling" and a patient who was immuno-compromised. The questions to which
Appellant's witnesses responded in the affirmative, however, did not so characterize the
swelling, but merely referenced "some swelling which may indicate infection" and "swelling in
the area," which was supported by evidence of localized swelling and also by evidence of
swelling of the outer face from the medical history questionnaire and the patient's deposition
testimony. Further, there was evidence in the record that the patient was immuno-compromised,
namely, Dr. Frick's testimony and the medical history questionnaire indicating sores that do not
heal within one week.
11. Technically, this tribunal may not consider the specific argument that lesser sanctions
were imposed in other cases, as it was neither raised to the Board nor specifically argued in
Appellant's brief. See Mackey v. Kerr-McGee Chemical Co., 280 S.C. 265, 312 S.E.2d 565 (Ct.
App. 1984). In any event, whether this specific argument is considered does not change this
tribunal's analysis under the "arbitrary and capricious" standard.
12. At oral argument, counsel presented for the first time, without objection from opposing
counsel, a chart purportedly representing the sanctions imposed by the Board in other disciplinary
cases. This chart was not part of the record on appeal to the Administrative Law Judge Division,
but was apparently submitted for the purpose of illustrating counsel's argument.
Because neither the chart, nor the argument that sanctions in other cases were less severe,
were included in Appellant's brief, this tribunal may not consider this information. See ALJD
Rule 36(B)(1) (Ordinarily, no point will be considered that is not set forth in the statement of
issues on appeal); Bochette v. Bochette, 300 S.C. 109, 386 S.E.2d 475 (Ct. App. 1989) (An
appellant may not use oral argument as a vehicle to argue issues not argued in the appellant's
brief); Mackey v. Kerr-McGee Chemical Co., 280 S.C. 265, 312 S.E.2d 565 (Ct. App. 1984)
(issue not specifically argued in brief). Further, no evidence of the Board's sanctions in other
cases was authenticated and admitted in the proceedings below and made a part of the record,
which also precludes this tribunal's consideration of the information. See Gale v. State Bd. of
Medical Examiners, 282 S.C. 474, 320 S.E.2d 35 (Ct. App. 1984); Mackey v. Kerr-McGee
Chemical Co., 280 S.C. 265, 312 S.E.2d 565 (Ct. App. 1984) (issue not raised below is not
preserved for appellate review). In any event, this information would not change my ruling on
the Board's imposition of its sanction in this case.
13. The appropriate safeguard against the Board's consideration of irrelevant matters is the
"arbitrary and capricious" standard under S.C. Code Ann. § 1-23-380 (Supp. 1997). |