ORDERS:
ORDER OF REMAND
This matter is before this tribunal because of Appellant's appeal of Respondent's July 20, 1998
Order which publicly reprimanded Appellant, suspended his medical license subject to conditions,
and imposed a $10,000 fine on him because of his conduct towards a patient. Counsel for both parties
presented oral arguments at the Administrative Law Judge Division on December 15, 1998.
STATEMENT OF THE CASE
The Board's charges involve behavior of Appellant directed toward an eighteen-year-old
female patient (M.C.) whom Appellant had known for most of her life. From 1985 until April 1996,
Appellant provided medical services for M.C., including general medical treatment and treatment for
depression, which included prescribing Zoloft and Prozac. Appellant also had constant social
interaction with M.C. and her family and was involved in a serious romantic relationship with M.C.'s
older sister at one time. Appellant' s last medical treatment of M.C. occurred on April 16, 1996 when
he prescribed Zoloft for depression and advised M.C. to return two weeks later.
On or about May 3, 1996, Appellant accompanied M.C. to dinner. At the restaurant,
Appellant consumed alcoholic beverages. While at the restaurant, and later at a local nightclub,
Appellant saw some of his friends and introduced M.C. as his niece. After leaving the nightclub that
evening, Appellant and M.C. went to Appellant's house. At his house, Appellant continued to drink,
and M.C. consumed at least a portion of a light beer. Appellant began to kiss M.C., unhooked her bra,
began fondling and caressing her breasts, and put his hand inside her pants. When M.C. was able to
express her desire to end this episode, she called friends from a portable phone from Appellant's
bathroom. M.C. then informed Appellant that her friends were coming to get her. M.C. was very
upset about this incident when she left Appellant's home and was picked up from the roadside by
friends. M.C. filed a complaint with law enforcement authorities regarding this incident, and on April
9, 1997, Appellant pleaded guilty to a charge of simple assault in magistrate's court.(1)
ANALYSIS
In appeals involving the Department, the standard of review is set forth in the Administrative
Procedures Act (APA), specifically, § 1-23-380. The central purpose of the general grant of judicial
review in the APA is to provide this tribunal with a broad spectrum in reviewing agency decisions.
Section 1-23-380(A)(6) expressly provides that an appellate court "may affirm the decision of an
agency or remand the case for further proceedings. An administrative agency has an obligation to
state clearly and completely the facts essential to its conclusion; where the agency fails to do this,
remand is appropriate. 2 Am. Jur. 2d Administrative Law, § 630 (1994). Further, a reviewing court
has inherent power to remand a case to an administrative agency to permit further evidence to be
taken or additional findings to be made on central points. 2 Am. Jur. 2d Administrative Law, § 631
(1994). See also, Campbell v. La-Z-Boy East, 295 S.C. 384, 368 S.E.2d 679 (Ct. App. 1988) (holding
that where agency failed to define basis for finding of fact, case should be remanded for agency to
make sufficiently detailed findings).
In the present case, the Board found that Appellant's sexual conduct with M.C. constituted
violations of statutory law and rules and regulations of the Board. However, the Board's order fails
to articulate a rationale or analytical basis as to how or why such conduct constitutes the alleged
misconduct. Rather, the order merely concludes that the conduct is violative of the law.
The order states:
The Respondent has violated S.C. Code Ann. §§ 40-47-200(F)(7) and (8), and
Regulations No. 81-60(A), (C), and (D) of the Rules and Regulations of the Board of
Medical Examiners, in the following particulars:
A. The Respondent has violated S.C. Code Ann. § 40-47-200(F)(7) (Supp. 1996), in that he has violated the following Principles
of Medical Ethics:
(1) Regulation 81-60(A), in that he failed to
provide competent medical service with
compassion and respect for human dignity, as
evidenced by the Respondent's sexual conduct
with an eighteen year old Patient, and allowing
the patient to consume alcoholic beverages
despite Respondent's knowledge that the
patient was under the legal age to drink alcohol.
(2) Regulation 81-60(C), in that the Respondent
failed to respect the law, as evidenced by the
Respondent's sexual conduct with an eighteen
year old patient, and allowing the patient to
consume alcoholic beverages despite
Respondent's knowledge that the patient was
under the legal age to drink alcohol.
(3) Regulation 81-60(D), in that he failed to
respect the rights of patients, as evidenced by
the Respondent's sexual conduct with an
eighteen year old patient, and allowing the
patient to consume alcoholic beverages despite
Respondent's knowledge that the patient was
under the legal age to drink alcohol.
B. The Respondent has violated S.C. Code Ann. § 40-47-200(F)(8), in that
he has engaged in dishonorable, unethical, or unprofessional conduct likely to deceive,
defraud, or harm the public, as evidenced by the Respondent's sexual conduct with an
eighteen year old patient, and allowing the patient to consume alcoholic beverages
despite Respondent's knowledge that the patient was under the legal age to drink
alcohol.
(Board's Order at 2-3) (emphasis added by appellate tribunal).
The Board's order is conclusory without explanation and is therefore, deficient. Our Supreme
Court has recently held in two decisions that an administrative agency must make specific findings
of fact and explain its rationale in sufficient detail to afford judicial review. Porter v. South Carolina
Pub. Serv. Comm'n, 333 S.C. 12, 507 S.E.2d 328 (1998); Porter v. South Carolina Pub. Serv.
Comm'n, 332 S.C. 93, 504 S.E.2d 320 (1998). The Court further stated that it overruled prior
precedents to the extent that they suggest the Court will, sua sponte, search the record for substantial
evidence supporting a decision when an administrative agency's order inadequately sets forth the
agency's findings of fact and reasoning. Porter, 333 S.C. 12, 507 S.E.2d 328 (1998).
South Carolina does not have an express statutory provision which prohibits sexual contact
between a physician and patient during the time the physician is providing medical care to the patient.
Therefore, the occurrence of such an act by a physician is not per se misconduct. In order to establish
misconduct, the Board must show that a physician engaged in conduct proscribed in § 40-47-200,
which defines misconduct. Hence, in this case, it is incumbent upon the Board to show the nexus
between the conduct and the alleged wrongdoing. In other words, the Board must explain and supply
legal analysis as to why and how Appellant's conduct constitutes (1) a failure to provide competent
medical service with compassion and respect for human dignity, (2) a failure to respect the law, (3)
a failure to respect the rights of patients, and (4) dishonorable, unethical, or unprofessional conduct
likely to deceive, defraud, or harm the public.
In the first item of alleged misconduct, the Board fails to establish what constitutes the
standard of competent medical service and when such service begins and ends. For instance, the
Board did not find that the physician-patient relationship exists beyond the office visit. That is, the
Board failed to address whether the care a doctor renders to a patient includes more than just
procedures performed or medications prescribed, and extends to the entire treatment relationship
between the physician and patient; and as a consequence, whether Appellant's behavior on the night
in question represented a departure from the minimum standards; and whether such sexual conduct
placed Appellant in a very compromising position which, as an objective individual, he would have
difficulty in rendering appropriate guidance and care or competent medical care.
As to the second item, the Board does not explicitly state which law Appellant failed to
respect. While this tribunal is aware of laws pertaining to the transfer of beer or wine for underage
persons' consumption, it should not be placed in a position to select an applicable provision from the
Code of Laws. This is not a mere question of a technical citation of authority. Rather, it is crucial
to apply the facts of a case to the specific statutory provision to determine whether a violation
occurred. For instance, the Board found that Appellant violated the law by allowing the patient to
consume beer. The question is whether the applicable law proscribes "allowing" a minor to consume
beer. It is therefore incumbent upon the Board to expressly state the applicable provision in question
and then to apply the facts of this case to that provision.
Next, the Board found that Appellant's conduct failed to respect the rights of patients, as
evidenced by his sexual conduct with an eighteen-year-old patient. However, the Board does not
relate the level of trust inherent in a physician-patient relationship and whether Appellant's conduct
took advantage of this trust to the detriment of the patient.
Finally, relating to Item 4, the Board did not explain how or why Appellant's conduct would
likely deceive, defraud, or harm the public. Again, the Board merely concluded that it would.
This tribunal is by no means making light of Appellant's conduct, as it was seriously
inappropriate. Nonetheless, while such conduct was inappropriate, this tribunal cannot supply the
Board's rationale for why it might also constitute the aforementioned alleged misconduct. Although
one might argue that the conduct was so egregious as to inherently constitute misconduct, such an
argument is misplaced. The physician's conduct in question must be measured against the grounds
constituting misconduct set forth in § 40-47-200. While the Board may have conducted such an
analysis to reach its conclusions, it did not provide such analysis to this tribunal in its Order.
ORDER
IT IS THEREFORE ORDERED that this case is REMANDED to the Board to reconsider
the record and the basis for its conclusions in accordance with this Order.(2)
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
March 8, 1999
Columbia, South Carolina
1. Simple Assault "is an unlawful attempt, coupled with a present ability, to commit a
violent injury upon the person of another." McAninch and Fairey, The Criminal Law of South
Carolina (3d ed. 1996). Other than in its findings of fact, the Board made no mention of the fact
that Appellant pleaded guilty to simple assault. Further, at the oral argument of this case, counsel
for the Board indicated that Appellant's guilty plea was not a factor in the Board's decision.
2. See Parker v. South Carolina Pub. Serv. Comm'n, 288 S.C. 304, 342 S.E.2d 403 (1986),
and Piedmont Natural Gas Co., Inc., 301 S.C. 50, 389 S.E.2d 655 (1990) (administrative agency
may not consider additional evidence upon remand unless court allows it because that affords a
party two bites at the apple). |
