SC Administrative Law Court Decisions

This matter is an appeal by D. Michael Woodward, M.D. (Woodward) of a decision by the Board of Medical Examiners (Board) to revoke Woodward's license to practice medicine. Woodward argues the revocation should be reversed for two reasons. First, procedural irregularities below prevented his obtaining a fair hearing. Second, the evidence does not support a decision to revoke his license.

After determining the facts of the irregularities, reviewing the record, and considering the arguments, I find that the Board's decision must be affirmed. As discussed in the remainder of this decision, the proven procedural irregularities did not deny Woodward a fair hearing. Further, substantial evidence supports the Board's decision to revoke Woodward's license.

A. Background

On December 4, 1996, the Board issued a formal complaint charging Woodward with unethical sexual conduct with two female patients and with inappropriate prescribing of specific drugs without medical justification. A Hearing Panel heard evidence on the charges on January 29 and 30, 1997 and issued a report on March 27, 1997 finding Woodward guilty of the charges. A hearing was held by the Board on October 20, 1997 to consider the Hearing Panel's findings. Woodward did not attend the Board hearing, and the Board issued a decision on October 21, 1997 ordering the revocation of Woodward's license to practice medicine.

Woodward appealed the Board's decision to the Administrative Law Judge Division. On November 24, 1997, before a hearing on the merits of the appeal could be heard, Woodward filed with the ALJ a Motion to Present Additional Evidence to the Board. Additionally, on November 25, 1997, Woodward filed with the ALJ a Motion to Supplement the Record before the ALJ. For the reasons identified in the ALJ's December 9, 1997 order, both motions resulted in an order vacating the Board's decision and remanding the matter to the Board with instructions. Those instructions directed the Board to accumulate the evidence needed to allow the ALJ to decide the issues raised by the allegations of procedural irregularities and directed the Board to also consider specific material evidence that Woodward was unable to present previously.

In response to the remand order, the Board conducted a two-day hearing in July 1998. The Board accumulated evidence on the procedural irregularities and received additional evidence Woodward had been previously unable to present. On October 17, 1998, the Board, for the second time, revoked Woodward's license. Woodward again appealed the revocation to the ALJ.

In a November 10, 1998 motion to the ALJ, Woodward argued the ALJ should take still further evidence on the alleged procedural irregularities. An order of December 16, 1998, granted Woodward's motion in part. While Woodward was not allowed to present further evidence on seven of the procedural issues, Woodward was allowed to produce further evidence on whether the hearings below "involved the improper mingling of information and personnel between investigator, prosecutor, and adjudicator." In developing that evidence, Woodward utilized discovery rights. As a result, in addition to the evidence accumulated by the Board on remand, the ALJ received additional documentary evidence on the activities of a committee known as the Investigative Review Committee.

B. Methodology For Determining Procedural Irregularities

Woodward has challenged the methodology by which the ALJ received evidence of the procedural irregularities. Under the circumstances of this case, the method of receiving evidence is proper.

When the procedure employed at the contested case level is challenged, the appellate body has the duty to ensure that the hearing below was accompanied by a fair and impartial procedure. Ross v. Medical University of South Carolina, 317 S.C. 377, 453 S.E.2d 880 (1994). Determining whether a fair and impartial procedure occurred requires the appellate body, not the contested case body, to act as the fact-finder on issues related to the disputed procedural irregularity. S.C. Code Ann. § 1-23-380(A)(5) (Supp. 1997); see Adriani v. Commission on Human Rights and Opportunities, 596 A.2d 426 (Conn. 1991) (the court reviewing an agency decision acts as the fact-finder for alleged procedural irregularities). Thus, the ALJ as the fact-finder is required to establish the methodology for determining whether irregularities occurred.

The methodology for determining whether irregularities occurred is neither fixed by statute nor predetermined by any regulation. Rather, the appellate body in an exercise of discretion considers the unique circumstances of each case and determines the most appropriate means for allowing proof. See Ross v. Medical University of South Carolina, 317 S.C. 377, 380, 453 S.E.2d 880,882 (1994) (proof to be taken by the appellate body in such a case is "at the court's discretion"). Obviously, a judge exercising discretion may not abuse that discretion. Creed v. City of Columbia, 310 S.C. 342, 426 S.E.2d 785 (1993). The line marking an abuse of discretion is generally not crossed unless the judge's discretionary act has either no evidentiary support or the judge's decision is premised on an error of law. Gooding v. St. Francis Xavier Hosp., 326 S.C. 248, 487 S.E.2d 596 (1997). The line marking an abuse of discretion has not been crossed in this case.

The means chosen in the instant case involved two steps. First, the Board was directed to accumulate evidence on the procedural irregularities. Second, if the parties believed additional evidence was still needed, they were allowed to further supplement the record by petitioning the ALJ. The method chosen is supported by the evidence and is not premised on an error of law.

As to evidentiary support, the Board was already required to conduct an additional hearing due to Woodward's need to present new evidence on the substantive matters in the case. Thus, the interests of judicial economy favored having the Board hear the evidence on the procedural concerns as well. Further, to the extent evidence was not obtained at the Board hearing, the parties were afforded an opportunity to obtain additional evidence by petitioning the ALJ. That opportunity was taken by Woodward. Woodward utilized his discovery rights allowed by the ALJ and presented additional evidence of the irregularities. Thus, the method chosen is properly supported by the evidence.

Just as the evidence supports the method chosen, likewise, the method chosen is not affected by an error of law. Indeed, the method employed is common in administrative matters. For example, the Board itself utilizes a system that accumulates evidence through a committee or panel hearing. Following that hearing the parties have a right to a Board hearing at which the accumulated evidence is reviewed and the party is allowed to submit additional evidence. See S.C. Code Ann. § 40-47-630 (Supp. 1998) (where such a procedure is used for respiratory care practitioners); S.C. Code Ann. Regs. 81-16 (where a panel of physicians submits to the Board the "transcript of the testimony taken and such exhibits as may have been in evidence before it."). Thus, the method chosen properly leaves the fact-finding duty in the ALJ and employs a procedure consistent with common administrative practices. Accordingly, the method chosen is not affected by an error of law and thus the issue becomes deciding whether any of the alleged procedural irregularities denied Woodward a fair hearing.

C. Examination of Procedural Irregularities

Woodward argues that eight specific procedural irregularities and one generalized error occurred below which denied him a fair hearing. The eight specific procedural irregularities are that the hearing below involved the improper mingling of information and personnel between investigator, prosecutor and adjudicator; allowed improper ex parte communications to the Hearing Panel; permitted the investigative review committee to have unauthorized members participate in decision making and permitted an investigative review committee not authorized by law; involved a Hearing Panel that misapplied or misunderstood the standard of proof in physician licensing matters; permitted the concealment of exculpatory evidence from Woodward and the investigative review committee; involved evidence obtained in violation of the Fourth Amendment to the United States Constitution; improperly failed to disclose the identity of the initial complainants to Woodward; and involved a violation of due process by the Board's denial of discovery by deposition of the State's witnesses. Finally, Woodward also argues a generalized error in that the hearing below was so tainted by errors that a fair hearing is impossible before the Board and that a reversal of the Board's decision is required. Each argument is addressed in turn.

1. Contact Between Investigator, Prosecutor and Adjudicator

Under the facts of this case, initially, an instance of improper commingling of prosecutorial and adjudicatory activities occurred. However, that error cannot result in a reversal of the Board's decision since the error was sufficiently corrected due to intervening acts. Thus, as discussed below, Woodward ultimately received a fair hearing before the Board.

a. Background Law

In an administrative dispute, a party shall not be subject to the same person for both prosecution and adjudication. S.C. Const. Art I, § 22. A party is subject to the same person for prosecution and adjudication if an agency official first investigates the alleged wrong-doing and then that same official acts as a judge in determining whether the wrong-doing has been established. See Ross v. Medical Univ. of South Carolina, 328 S.C. 51, 70, 492 S.E.2d 62, 72 (1997) (where a vice-president of a university investigated the alleged wrong doing of a professor and then sat as a judge who found the wrong doing was proven); Garris v. Governing Bd. of South Carolina Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48 (1998) (where an insurance agent's rights under Art I, § 22 were violated since members of the Governing Board first sat as investigators and then subsequently sat as adjudicators revoking the agent's designated status).

However, the mere fact of establishing the occurrence of an improper commingling of prosecutorial and adjudicative functions does not end the analysis. Rather, an Art. I, section 22, violation invokes much of the same review criteria required by an alleged due process violation. See League of Women Voters of Georgetown County v. Litchfield-by-the-Sea, 305 S.C. 424, 409 S.E.2d 378 (1991) ("Council, as an administrative agency, must comport with standards of due process established by Article I, Section 22, of the South Carolina Constitution."). Accordingly, under a due process consideration, the violation must result in actual harm to Woodward. See Palmetto Alliance, Inc. v. Public Service Commission, 282 S.C. 430, 319 S.E.2d 695 (1984) (proof of denial of due process in administrative proceeding requires showing of substantial prejudice). Thus, while some errors may reveal defects inappropriate for a harmless error analysis (see. e.g., the structural defect identified in Garris, supra), the more typical due process review requires reversal only where the commingling amounts to more than a harmless error. See Ross v. Medical University of South Carolina, 328 S.C. 51, 492 S.E.2d 62, (S.C. 1997) ("while we do not condone Vice-President Newberry's participation in this dual capacity, we find the error harmless.").

Accordingly, two elements must be established for Woodward to prevail on this issue. First, the evidence must demonstrate an improper commingling of prosecution and adjudication. Second, the commingling must be more than a harmless error.

b. Improper Commingling of Activities

i. Factual Background

In the early stages of the instant case, the evidence establishes that the same persons carried out both prosecutorial and adjudicatory functions. The early commingling is seen in the activities of the Investigatory Review Committee (IRC) and the activities of the Board in adjudicating the revocation of Woodward's license.

The IRC is a committee normally consisting of three members with the Chairman of the IRC being typically the Vice President of the Board. In addition to the Chairman, two other members serve on the IRC with those members chosen from individuals who are former members of the Board.

The IRC carries out a three fold purpose. It provides technical medical assistance to the Board's investigative staff in conducting investigations of initial complaints. In addition, the IRC reviews completed investigations to decide if probable cause exists for finding that a violation has occurred and then, through General Counsel, makes a recommendation to the Board on whether the complaint should be dismissed or pursued. Finally, the IRC reviews proposed settlements of initial complaints and recommends to the Board whether the settlements should be accepted.

In the instant case, the IRC acted in its probable cause role by recommending the issuance of a formal complaint against Woodward. While normally three members serve on the IRC, only two served on the IRC that produced the Woodward recommendation. The recommendation resulted from an October 10, 1996 meeting of the IRC which consisted of a member of the Board and a former Board member. Present at the meeting were at least one investigator and the attorney who would ultimately act as the prosecutor against Woodward.

The IRC meeting presented that committee with extensive information about Woodward's alleged wrong-doing. The IRC received a September 16, 1996 report from a staff investigator. The investigator's report explained that Woodward was alleged to have had a sexual relationship with a female patient to whom Woodward had "prescribed large amounts of Stadol along with other highly additive narcotics in an inappropriate and unnecessary basis resulting in the patient being admitted to a detox program." The report explained that Woodward was alleged to have over-prescribed "drugs to a large number of his patients" and that his medical records were "also of concern regarding 'blanket exams.' " To support these allegations, the report attached two significant documents.

First, the report attached a multi-page listing of drugs prescribed by Woodward for selected patients. The document identified the patient by name, the date a drug was prescribed or administered, the name of the drug, the amount administered or prescribed and the location of the pharmacy that filled the drug prescription.

Second, the report attached an "[e]xpert review of charts for David M. Woodward, M.D" with the expert report prepared by Nelson Gunter, M.D. The report addressed each of the patients for whom the drug listing had been prepared and concluded that multiple inappropriate practices had occurred for each patient. The report was specific as to the inappropriate practice for each patient and the report concluded with a summary of the specific inappropriate practices.

As a result of the information received, the IRC on October 10, 1996, recommended the issuance of a formal complaint against Woodward by the Board. The Board was presented with a recommendation from the General Counsel that a formal complaint should be issued. The Board agreed and the issuance of a formal complaint resulted on December 4, 1996.⁽¹⁾ Following a panel hearing, the full Board on October 20, 1997, heard the Woodward matter and issued an order of revocation on October 21, 1997.

These activities show that one Board member participated at the investigative stage and at the adjudicatory stage. The same board member who reviewed evidence leading him to vote at the IRC level to seek a formal complaint, also voted at the Board's October 20, 1997 hearing which resulted in the October 21, 1997, order revoking Woodward's license.

ii. Legal Conclusions

Given the above facts, the issue is whether Art. I, § 22 is violated by having a Board member become exposed to the prosecutor's evidence prior to any adjudicatory hearing for the accused and then allowing that Board member to sit, participate, and vote at the adjudicatory hearing.

The purpose of Art. I, § 22 "is to ensure adjudications are conducted by impartial administrative bodies." Ross v. Medical University of South Carolina, 328 S.C. 51, 492 S.E.2d 62,72 (1997). In determining the existence of partiality, the court may ask whether "an adjudicator has ex parte information as a result of prior investigation or has developed, by prior involvement in the case, a 'will to win.'" Id. Here, the same Board member ("the IRC Board member") that was exposed to extensive prosecutorial evidence at the IRC level also sat as an adjudicator at the Board hearing.

Such a practice is improper and violates Art. I., § 22. When the IRC receives evidence, the IRC is performing a prosecutorial function by assisting in the investigatory stage of the case. See Garris v. Governing Bd. of South Carolina Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48 (1998) (where members of the Governing Board sitting as investigators were deemed to be carrying out prosecutorial duties). Having that same IRC member participate in the Board meeting places that member in the improper dual-role of a prosecutor and an adjudicator. See Regs. 81-17 (where the Board acts as an adjudicator since "[u]pon its final review, the Board may . . . find that the respondent is guilty of misconduct.").

The Board must scrupulously safeguard its members from being both prosecutors and adjudicators. Here, the IRC activities created a violation of Art. I, § 22 in that a Board member was placed in "situations where [he] had the opportunity to form premature opinions." Garris, supra.

c. Harmless Error

The Board asserts any violation of Art. I, § 22 produced only a harmless error since the IRC Board member testified he had no recollection of any evidence produced at the IRC level. Such a position fails to demonstrate harmless error.

Allowing an agency official or board member to sidestep Article I, Section 22 merely by stating, in rote fashion, that he or she based a decision only on evidence presented at the hearing would render the constitutional prohibition a nullity.

Garris v. Governing Bd. of S. C. Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48 (1998). For the same reason, the Board's defense is improper in this case.

However, a second harmless error position is more persuasive and relies upon intervening acts to cure the violation of Art. I, § 22. Indeed, our Supreme Court has endorsed the concept and has given parameters explaining the extent of the intervening activities sufficient to cure the violation.

In Ross v. Medical University of South Carolina, 328 S.C. 51, 492 S.E.2d 62, 72 - 73 (1997) the Court explained that even though an earlier Committee hearing had violated Art. I, § 22, a subsequent "Board reviewed the record of the hearing before the Committee, heard oral argument from the parties, and conducted its own deliberations. The Board's independent consideration of Dr. Ross' grievance cured the constitutional violation [of Art. 1, § 22]." Here, two independent hearings have rendered the violation of Art. I, § 22 harmless error.

The first independent hearing was a Disciplinary Panel hearing held on January 29 and 30, 1997. That hearing was after the October 10, 1996, prosecutorial actions but before the October 20, 1997 adjudicatory actions of the IRC Board member. The Disciplinary Panel conducted a two-day hearing that heard witnesses from both sides, allowed examination and cross-examination, received documents in evidence, and heard oral argument by both parties. The Disciplinary Panel rendered Findings of Fact and Conclusions of Law wholly independent of any input or contact by the IRC Board member. Thus, the Disciplinary Panel produced a report tantamount to an "independent consideration" of the charges against Woodward.

While such a hearing provides an "independent consideration" apart from actions of the IRC Board member, the fact cannot be dismissed that the actual violation of Art. I, § 22 did not occur until October 20, 1997 when the IRC Board member acted in his adjudicatory role by participating in a Board hearing to revoke Woodward's license. Nonetheless, despite the later date of the violation, from the point of view of a harmless error analysis, consideration must be given to the intervening and independent findings of the Disciplinary Panel and to the fact that those findings provide a significant separation between the IRC actions and the Board's review action. Thus, in light of such developments from a harmless error perspective, the involvement of the IRC Board member becomes less offensive.

Finally, when the first independent hearing is considered in light of a second independent hearing, the harmless error scale tips in favor of the Board. A second independent hearing was heard by the Board on July 21 and 22 , 1998. That hearing was a remand hearing at which the IRC Board member did not participate in an adjudicatory manner. Rather, he recused himself and had no role in the case other than being called as a witness by Woodward. The act of recusal is a means of avoiding the dual role of prosecutor and adjudicator. See Appeal of Trotzer, 719 A.2d 584 (N.H. 1998) (which establishes that an individual may avoid violating the prohibition on acting both as a prosecutor and an adjudicator if the individual acts first in a prosecutoral role but then recuses himself before acting in an adjudicator role). Thus, the offending element of the participation of the IRC Board member as an adjudicator was removed prior to the remand hearing.

The removal of the offending element is significant since the Board's original order was vacated and a new order was entered. On remand, the Board was directed to take additional evidence and "make findings of fact in light of the additional evidence to be presented." Thus, to render a new order, the Board considered Woodward's new evidence of "the testimony of the neighbor" to refute the charges made by one of the individuals accusing Woodward of improper sexual contact. Further, the Board was directed to consider Woodward's evidence seeking to establish the "hallucinogenic properties of Stadol."

Thus, after examining the new evidence, the Board was required to reconsider all of the previously presented evidence to determine their decision. The combination of new evidence plus reconsideration of prior evidence produced an order free from the input or considerations of the IRC Board member. Thus, the initial violation of Art. I, § 22 was cured by the combination of the Disciplinary Panel report and the Board's reconsideration of all of the evidence on remand. Accordingly, the violation of Art. I, § 22 was harmless error.

2. Ex Parte Communications to the Hearing Panel

Woodward asserts that at least one member of the hearing panel received illegal ex parte communications in violation of S.C. Code Ann. § 1-23-360 (Rev. 1986) and that the degree of violation requires reversal of the Board's revocation decision. While I agree with Woodward that an improper communication was received by Dr. Simons, a member of the hearing panel, I cannot agree that a reversal is warranted.

No one in this case significantly disputes that other than communicating with the panel members and receiving advice from a personal assistant, Dr. Simons could not communicate with any person on any issue of fact related to the Woodward case. S.C. Code Ann. § 1-23-360. In deciding if the communication prohibition has been breeched, the test is whether Dr. Simons had communication on a fact issue and whether that communication was without having all of the parties present. Id.; also see Matter of Disciplinary Action Against Wilson, 461 N.W.2d 105 (N.D.) ("Ex parte communications are those that involve fewer than all of the parties who are legally entitled to be present during the discussion of any matter.").

Here, obviously, a significant fact in dispute before the hearing panel was whether Woodward had improper sexual relations with two patients. Further, with neither of the parties present, Dr. Simons received a package relevant to that fact issue with that package containing unsolicited journal articles discussing doctors having sexual relations with their patients. In addition, after receiving the package, neither of the parties knew Dr. Simons had the material. Indeed, only after the October 21, 1997 Board decision did either Woodward or the prosecutor learn that Dr. Simons had been provided the articles.⁽²⁾ Under these facts, Dr. Simons received ex parte communication in violation of S.C. Code Ann. § 1-23-360.

However, as with many instances of procedural irregularities, the mere fact of a violation of S.C. Code Ann. § 1-23-360 does not require an automatic reversal of the decision below. See Ross v. Medical University of South Carolina, 328 S.C. 51, 492 S.E.2d 62, (1997) (where our Supreme Court explained it "has refused to adopt a per se rule automatically reversing rulings which result from ex parte communications."). Rather, the decision to reverse in such instances depends upon whether prejudice results from the ex parte contact. Burgess v. Stern, 311 S.C. 326, 428 S.E.2d 880 (1993). Woodward has the burden of proof in demonstrating the resulting prejudice. See Ross v. Medical University of South Carolina, 328 S.C. 51, 492 S.E.2d 62, (1997) ("Since Dr. Ross has not established any prejudice from not receiving the 'Comments,' the error is harmless."). Here, no prejudice has been shown.

First, nothing in Dr. Simons's testimony establishes the articles came from the Board's investigative or prosecutorial staff. The evidence is clear that Dr. Simons had no direct knowledge of who supplied the package to her. Rather, she could only guess that the package came from "someone from the Board's office." In fact, the administrative staff has the duty of preparing the particulars for use in conducting the panel hearing. Therefore, the evidence supports the conclusion that the articles came from the Board's administrative staff and that the articles were thus not involved in the prosecutorial functions of the Board.

Second, the depositions conducted by Woodward establish that none of the three members of the hearing panel placed reliance upon any journal articles. In fact, two of the panel doctors do not believe they had any articles in their package. As to Dr. Simons, she indicated the articles formed no material role in her deliberations. Certainly, nothing in the panel's findings reference any journal articles. Accordingly, considering the evidence as a whole, the communication to Dr. Simon did not result in substantial prejudice, and reversal is not warranted.

3. Duties, Functions, and Membership of the IRC

Woodward argues the IRC is an entity not authorized by law and, in any event, the functions performed by the IRC are unauthorized functions. Further, Woodward argues that a non-Board member participating with the IRC is improper.

a. Authorization For IRC

The creation of the IRC is not an unauthorized act. Rather, no prohibition denies assistance to the Administrator in his duty to conduct the required "preliminary investigation."

The process for issuing a formal complaint is set by statute and regulations. Under S.C. Code Ann. § 40-47-200, Board actions related to the revocation of a license "may not be taken until after an initial complaint of misconduct, in writing, has been filed with the board in accordance with regulations promulgated by the board." The regulations promulgated by the Board direct the manner of handling the initial complaint and direct that the initial complaint must be filed with the Administrator for the Board. The Administrator then is "to immediately cause a preliminary investigation to be made and promptly prepare the same for presentation to the Board. " Regs. 81-12.5.

The method for accomplishing the preliminary investigation required by regulation 81-12.5 is not set. Since no specific directions exist on the methodology to be used by the Administrator, the Administrator may devise a procedure of his choosing to accomplish the task. See 63A Am.Jur.2d, Public Officers and Employees, §303 ("statutory direction to perform official duties, unaccompanied by definite directions as to how the power is to be exercised, implies the right and duty on the part of individual officials to employ the means and methods necessary to comply with statutory requirements."). Accordingly, since no clear prohibition exists to prevent the creation of an advisory committee, the act of using the IRC to assist the Administrator in his task of conducting the required "preliminary investigation" is not an unauthorized act.

b. Improper Functions

Given that the use of an advisory committee is not prohibited, the further inquiry is whether the functions performed by the IRC are allowed by law. I find the functions performed are proper.

As identifed in II.C.1.b.i. of this decision, the IRC performs three duties: providing technical medical assistance to the investigative staff, reviewing completed investigations to decide if probable cause exists to warrant recommending the issuance of a formal complaint, and reviewing proposed settlements of initial complaints to advise the Board on whether the settlements should be accepted. Each of the three duties of technical assistance, probable cause, and settlement review of initial complaints occurs during the preliminary investigation stage. Each duty serves to assist the Administrator in his responsibility imposed by Regs. 81-12.5 to "promptly prepare the [preliminary investigation] for presentation to the Board." No duty performed by the IRC binds the Board on whether to issue a formal complaint. Indeed, at all times the Board retains the sole authority to determine whether the "initial complaint along with the investigative report . . . state facts sufficient to charge misconduct." Regs. 81-13.

Further, the facts of this case establish the IRC acted in no authoritarian role. Here, the IRC performed the function of assisting in the preparation of Woodward's preliminary investigation pursuant to the investigation required by Regs. 81-12.5. The IRC did not direct the Board to issue a formal complaint nor did the IRC operate in a manner that presupposed it had any authority to direct anyone to carry out its recommendations. Rather, at the Board's October 21, 1996 meeting, the Board acted in "Executive Session to review the Investigative Reports." In that session the Board received a recommendation from the General Counsel of LLR, not from the IRC. Based upon General Counsel's recommendation, the Board voted to issue a formal complaint against Woodward.

Thus, the functions performed by the IRC are not unauthorized functions. Rather, the functions performed are advisory and are performed consistent with the need of the Administrator to conduct a "preliminary investigation" following the receipt of an intial complaint.

c. Improper Members

Woodward argues that having a former member of the Board sitting on the IRC results in an unlawful "subdelegation of the powers [of the Board] to any former Board member or other private individual." In short, Woodward asserts the Board has delegated its decision making authority to a non-Board entity, the IRC. I disagree.

Little doubt exists in this state that an agency's decision making authority cannot be delegated to advisory personnel. See Dawson v. State Law Enforcement Div., 304 S.C. 59, 403 S.E.2d 124 (1991) (where the Grievance Committee could not delegate its decision making authority to the Committee's Personnel Director); and Bradley v. State Human Affairs Com'n, 293 S.C. 376, 360 S.E.2d 537 (Ct. App. 1987) (where the court held a committee attorney operated in an advisory capacity and thus could not be delegated the decision making authority of the committee). Accordingly, the issue becomes deciding whether the Board delegated any of its decision making authority to the IRC. No delegation of authority occurred in this case.

As discussed above, the IRC exercised no control over the decision making authority of the Board. Clearly, the IRC recommended that a formal complaint should be issued. However, the Board was not bound by such advice. Rather, at the Board's October 21, 1996 meeting, the Board received a recommendation from the General Counsel of LLR, not from the IRC. The Board, after considering the General Counsel's recommendation, did not delegate its authority to any other entity but instead exercised its authority by voting to issue a formal complaint against Woodward. Accordingly, having a former member of the Board sitting on the IRC did not result in an unlawful subdelegation of the powers of the Board.

4. Misapplied Standard of Proof

At the time of the panel hearing (January 29 - 30 1997), the South Carolina Court of Appeals had ruled that the State's standard of proof in medical disciplinary proceedings is "clear and convincing evidence." See Anonymous v. The State Board of Medical Examiners, 323 S.C. 260, 473 S.E.2d 870 (Ct. App. 1996). The panel decision issued on March 24, 1997 states that its findings are made under "clear and convincing evidence." The Board considered the panel decision on October 20, 1997. On October 21, 1997, the Board issued an order agreeing with the panel's findings with that order employing the clear and convincing standard. Woodward argues that the panel members did not understand the clear and convincing standard of proof and, therefore, Woodward did not receive a fair hearing. I disagree.

Woodward deposed each of the doctors who sat on the Disciplinary Hearing panel. True, at their depositions, each had difficulty explaining the concept of weighing evidence in light of a standard of "clear and convincing" evidence. However, the panel members were advised by an attorney throughout the panel hearing, and the panel members relied upon that attorney for procedural advice. That advice included information allowing the panel members to properly apply the "clear and convincing standard" so that no error occurred.

More importantly, in early 1998, the South Carolina Supreme Court reversed the Court of Appeals' ruling on the clear and convincing standard, holding that the correct standard of proof is "the preponderance of the evidence." See Anonymous v. The State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998). Following the Board's July, 1998 remand hearing, the Board issued its October 17, 1998 Order using the preponderance of the evidence standard in making its findings of fact. Thus, in any event, the standard ultimately applied in this case is the preponderance of evidence standard and not the clear and convincing standard.

Woodward argues that "notwithstanding the South Carolina Supreme Court's decision" due process requires the State to prove Woodward's violations by clear and convincing evidence. I cannot agree.

A judge in South Carolina is not free to deviate from the clear pronouncements of the South Carolina Supreme Court. See M & T Chemicals, Inc. v. Barker Industries, Inc., 296 S.C. 103, 370 S.E.2d 886, 890 (Ct. App. 1988) (where the Court of Appeals explained that "if the judicial system is to operate efficiently, this court must be bound by decisions of the Supreme Court. Where, as here, the law is unmistakably clear, this court has no authority to change it."). The Supreme Court's ruling is clear that due process does not require the clear and convincing standard in Board disciplinary hearings. Thus, the preponderance of the evidence standard controls in the instant case.

In conclusion, no error was committed by either the Disciplinary Hearing Panel or the Board hearing since the law of this State was applied as that law existed at the time of the issuance of each order finding misconduct on the part of Woodward. Further, the applicable standard was ultimately determined to be the preponderance of evidence and that standard was properly applied in the Board's remand order.

5. Concealment of Exculpatory Evidence

Woodward argues the Board was obligated to provide him with any exculpatory information the Board had in its possession and that the Board's refusal to provide such information deprived him of due process under the law.⁽³⁾ I find no violation of due process under the facts of this case.

a. Method of Determining Need to Disclose

While the mandatory disclosure of exculpatory evidence in criminal cases appears established, uncertainty surrounds disclosure in civil disciplinary matters. In criminal cases, the State has a duty to disclose to the defendant prior to trial any exculpatory evidence, material to either guilt or punishment, in its possession. Brady v. Maryland, 83 S.Ct. 1194 (1963). However, even this technical mandatory duty is tempered by the practical reality that not all failures to disclose exculpatory information require reversal of the trial court. Rather, only when an error deprives a respondent of a fair hearing will a reversal result. See State v. Gunn, 313 S.C. 124, 437 S.E.2d 75 (1993).

In civil disciplinary matters, our State's appellate courts have not directly addressed the question of whether in a professional disciplinary case the State has a duty to disclose to the respondent the exculpatory evidence in the State's possession. While the courts of other states and the federal courts have addressed the issue, the conclusions are mixed.

At least one court has found that a total absence exists of any duty to disclose exculpatory evidence. See Martin v. State Bar, 804 P.2d 54, 59 (Cal. 1991) (where the court in an attorney disciplinary matter found no duty to disclose exculpatory evidence since the "petitioner chose to represent himself in the disciplinary proceedings and it was his responsibility to appear and present evidence. He cannot shift his evidentiary burden to the State Bar."). Other courts have adopted a case-by-case approach based upon determining whether the failure to provide exculpatory evidence creates a significant prejudice to the party being disciplined. See Mister Discount Stockbrokers, Inc. v. S.E.C., 768 F.2d 875, (7th Cir. 1985) (where the petitioner requested exculpatory evidence but the court held "the petitioners have failed to demonstrate any prejudice arising from the discovery procedures of the NASD [which denied petitioners' request to produce exculpatory evidence], let alone prejudice to a significant degree so as to result in a denial of due process."). Finally, under certain circumstances, other courts have found a definitive duty to disclose exculpatory evidence in disciplinary cases. See Wills v. Composite State Board of Medical Examiners, 259 Ga. 549, 384 S.E.2d 636 (1989) ("If a licensee makes a general or specific request for exculpatory, favorable, or arguably favorable information which is relative to the formal complaint, then the Board must furnish the information requested in the same manner as prescribed by Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)."); see also Golden v. Georgia Bureau of Investigation, 198 Ga.App. 115, 400 S.E.2d 668 (1990).

Considering the respective views, I find the most appropriate approach is the case-by-case examination. Such an approach does not impose a wooden rule of mandatory disclosure upon the hearing body nor does it free the hearing body to act in a capricious and arbitrary manner by denying all requests for exculpatory evidence. In addition, the approach dismisses technical rules of disclosure in favor of a realistic examination of the significance of the information being disputed. See State v. Jolly, 304 S.C. 34, 402 S.E.2d 895, 898 (Ct. App. 1991) (where our appellate courts have expressed a preference for a practical review of such matters by explaining that "whatever doesn't make any difference, doesn't matter."). Thus, the proper inquiry is whether the failure to disclose exculpatory evidence to Woodward created a prejudice of such a degree that his rights to due process were denied.

b. Prejudice

Even in a criminal context, failure to disclose exculpatory information is reversible error only when its omission deprives a respondent of a fair hearing. See State v. Gunn, 313 S.C. 124, 437 S.E.2d 75 (1993). The same approach applies in a civil disciplinary hearing in that the State's denial of the information does not constitute reversible error where the evidence sought is either immaterial, cumulative of other evidence, or known to or within the respondent's power to produce. Golden v. Georgia Bureau of Investigation, 198 Ga.App. 115, 400 S.E.2d 668 (1990). Further, "'[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense.'" State v. Freeman, 319 S.C. 110, 459 S.E.2d 867, 873-4 (Ct. App. 1995). In the criminal context, the constitutional standard of materiality is met only if the suppression of the information undermines confidence in the outcome of the trial. United States v. Bagley, 105 S.Ct. 3375 (1985). Further, the record on appeal must be sufficient for the reviewing court to determine whether the requested information was material or of sufficient significance to result in the deprivation of a fair trial. State v. Freeman, 459 S.E.2d at 874. Otherwise, the reviewing court would be engaging in mere speculation. Id. Finally, no prejudice will result from the State's failure to disclose exculpatory evidence to the accused prior to trial if the evidence is disclosed at trial and the accused is given enough time during the trial to review the evidence and to prepare for examination of witnesses in light of the newly disclosed evidence. State v. Lunsford, 456 S.E.2d at 920; see also 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 19.5, at 545-46 (1984) (a defendant's failure to request a continuance when a disclosure of exculpatory evidence is first made at trial is often viewed as automatically negating any claim of actual prejudice).

In this case, Woodward makes the stark assertion that a significant amount of exculpatory evidence was never made available to him. However, Woodward fails to give due consideration to the fact that the unrelenting and herculean efforts of his attorneys successfully presented at either the panel hearing or at the Board hearing on remand virtually all of the heretofore undisclosed exculpatory evidence. For example, Woodward established he was the one who obtained drug treatment for one of the women charging him with improper sexual contact. He established the facts that the same individual told the drug rehabilitation personnel that she had never been sexually abused, that she had hallucinations, that she abused drugs and alcohol, and that she said that Woodward was one of the most stabilizing people in her life. Further, Woodward established that a second individual, also accusing him of improper sexual contact, was in the process of suing him for malpractice due to the alleged sexual encounter, and the same individual had come twice to Woodward for medical treatment after the sexual contact was alleged to have taken place.

Therefore, Woodward was able to obtain the exculpatory information through independent sources and was able to use that information in the preparation of his defense. However, Woodward has not demonstrated the existence of other evidence that was suppressed by the Board which he was not able or not allowed to ultimately present to the Board for its consideration. While no doubt the Board's actions placed Woodward to a significant financial burden in obtaining the evidence, I am unable to find that Woodward was prejudiced in the constitutional sense such that he was denied the opportunity to be heard at a meaningful time and in a meaningful manner. Armstrong v. Manzo, 85 S.Ct. 1187 (1965); State v. Freeman, 459 S.E.2d at 874. Accordingly, the Board's failure to disclose exculpatory evidence to Woodward did not create a prejudice of such a degree that his rights to due process were denied.

6. Evidence Obtained in Violation of the Fourth Amendment

Woodward argues that his rights under the Fourth Amendment to the United States Constitution have been violated. He argues that medical records were illegally removed from his office by one of his employees and that the records were given to a Board investigator. From this premise, Woodward argues his hearing was unfair and warrants reversal. I disagree.

The facts do not support Woodward's initial premise that the records were given to a Board investigator. Rather, the evidence establishes that an employee of Woodward arranged for the removal of specific medical records and delivered those records to an investigator of the Attorney General, not the Board, and that the records involved a matter unrelated to the instant case. Further, the evidence establishes that none of the records were ever provided to the prosecutor nor were any of the records considered by the panel hearing, first Board hearing, or the remand Board hearing. Accordingly, the alleged illegal removal formed no part of the investigation of, or hearing for, Woodward. Therefore, allegations of a violation of Woodward's Fourth Amendment rights do not warrant reversing the Board's revocation decision.

7. Failure to Disclose to Woodward the Identity of Complaining Parties

Woodward argues that due process requires that he be provided with a copy of the initial complaints and with the identity of the initial complainants. He asserts that this entitlement was confirmed by the South Carolina Court of Appeals in State Board of Medical Examiners v. Girgis, 332 S.C. 162, 503 S.E.2d 490 (Ct. App. 1998), cert. denied. While I find that the Board was required to provide Woodward with the original complaints, the Board's failure does not constitute reversible error since Woodward has not shown that he was prejudiced. Cf. Ross v. MUSC, 328 S.C. 51, 492 S.E.2d 62 (1997) (where no reversible error occurred since the respondent failed to establish that his inability to obtain the requested discovery substantially hindered his ability to respond to the charges against him and thus established that he showed no prejudice from the denial of discovery).

a. Duty to Provide Initial Complaint

In Girgis, the Court held that the privilege referenced in S.C. Code Ann. § 40-47-212 (Rev. 1986) is a privilege against liability only and not an absolute privilege against disclosure of the name of the complainant. The Girgis interpretation is consistent with the statute's language stating that it should not be construed to deny the doctor access to the charges and evidence filed against him. See § 40-47-212 ("No part of this article shall be construed as prohibiting the respondent or his legal counsel from exercising the respondent's constitutional right of due process under the law, nor to prohibit the respondent from normal access to the charges and evidence filed against him as a part of due process under the law."(emphasis added)).

i. Timing of Girgis

Notwithstanding the language of § 40-47-212, the Board argues it is justified in withholding the identity of the initial complainants and withholding copies of the initial complaints from Woodward. It reasons that at the time of the panel hearing, the South Carolina Court of Appeals had not yet issued its opinion in Girgis, and therefore, the Court of Appeals' holding in that case was not binding on the Woodward proceedings. I disagree.

It is of no moment that the Girgis opinion was not yet issued when Woodward made his request. Rather, the Girgis opinion did not create new law. Indeed, Girgis merely interpreted the existing law found in S.C. Code Ann. § 40-47-212 and the due process requirements of the United States and South Carolina Constitutions.

ii. Regulations 81-12.5, 81-20, and 81-26

The Board also argues that Regulation 81-12.5, 81-20, and 81-26 now explicitly prohibit disclosure of the identity of the initial complainant and that it is binding in this case. I disagree.

Woodward's request for the initial complaints and disclosure of the names of the complainants was made prior to the enactment of Regs. 81-12.5, 81-20, and 81-26. I find no language expressing an intent that these regulations were to be applied retroactively to bar requests made prior to the effective date of the regulations. Cf. Carolina Chemicals, Inc. v. SC Dep't of Health and Environmental Control, 290 S.C. 498, 351 S.E.2d 575 (Ct. App. 1986) (in the construction of statutes, there is a presumption that legislative enactments are prospective rather than retroactive in their operation unless there is a specific provision or clear legislative intent to the contrary).

Further, the Board's argument must fail because the regulations are unlawful attempts to prohibit disclosure to the respondent of the name of the party filing the initial complaint. Prohibiting disclosure to the respondent of the name of the party filing the initial complaint produces an interpretation of the regulations that is in conflict with the plain meaning of S.C. Code Ann. § 40-47-213 (Rev. 1986). While S.C. Code Ann. § 40-47-213 (Rev. 1986) prohibits most disclosure, the statute specifically states that the prohibition does not apply "to persons involved and having a direct interest in the complaint, investigation, or other proceeding." It is hard to conceive of anyone with a more direct interest in the complaint or investigation than the respondent. Thus, since § 40-47-213 (Rev. 1986) specifically allows disclosure to the respondent, Regs. 81-12.5, 81-20, and 81-26 are invalid in their attempt to unlawfully exclude the respondent from the persons capable of obtaining information pertaining to the complaint. See Society of Professional Journalists v. Sexton, 283 S.C. 563, 324 S.E.2d 313, 315 (1984) (where a DHEC regulation was held invalid since it sought to exclude disclosure of death certificates to the public in contravention of an FOIA statute which did not limit the class of persons to whom the certificates must be furnished).

iii. Chilling Effect

The testimony in the Board's remand hearing reveals the Board's legitimate concern that disclosure of the identity of the initial complainants will have a chilling effect on the reporting of physician misconduct. Section 40-47-213, however, adequately addresses this concern since it prohibits the release of any information connected with the complaint or the resulting investigation or proceedings, including the identity of the complainant, to persons not involved with, or having a direct interest in, the case. Even disclosure of such information to those involved with or having a direct interest in the case is limited to the purpose of proper disposition of the case. While such disclosure still allows the respondent to have access to the information for purposes of preparing a defense, the respondent is prohibited by the statute from disclosing the information to anyone not involved with the case. Such a prohibition on disclosure has an ameliorative effect on the potential adverse results to the State from releasing information to the respondent. This ameliorative effect lessens the likelihood that the government's interest in suppressing the information will outweigh the respondent's interest in having the information to defend against possible deprivation of his livelihood. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976). Thus, the potential chilling effect is not a sufficient reason for denying Woodward access to the names of the complainants.

b. Lack of Prejudice

While the Board was required to provide Woodward access to the charges and evidence filed against him, the Board's refusal to provide Woodward with copies of the initial complaints requires reversal only if such refusal prejudiced him by depriving him of a fair hearing. Palmetto Alliance, Inc. v. Public Service Commission, 282 S.C. 430, 319 S.E.2d 695 (1984) (proof of denial of due process in administrative proceeding requires showing of substantial prejudice). No prejudice has been proven in this case.

The Board argues that Woodward failed to show prejudice from its failure to provide copies of the initial complaints, and that in fact no prejudice occurred because the complainants "were not material to this case" and that the State's case was made with "totally independent evidence." Also, the Board asserts that the formal complaint brought against Woodward dealt with different issues than those raised in the initial complaints.

The record reveals that the allegations in the initial complaints related to alleged misconduct involving two individuals who were not used as witnesses by the Board. The record also shows that Woodward's attorneys learned the identity of the initial complainants prior to the remand hearing. This information became available to Woodward no later than the July 3, 1997 deposition of the Board's investigator. Thus, the information was known prior to the remand hearing in this case.

Based on these facts, I find that Woodward was not prejudiced by the failure of the Board to provide him with copies of the initial complaints. Woodward has failed to show that he was unable to use his knowledge of the initial complainants' identities prior to the remand hearing to prepare for any additional witness examination he deemed necessary. Even though the original scope of the remand hearing was limited as set forth in my December 9, 1997 Order, the Board allowed Woodward's attorneys to present additional evidence outside of the original scope of the hearing, over the objection of the prosecuting attorney. In light of Woodward's knowledge of the initial complainants' identities prior to the remand hearing and the fact that the alleged victims listed in the initial complaints were not the subject of the evidence presented against him, Woodward has failed to show how obtaining copies of the initial complaints prior to the remand hearing would have made a difference in his defense. Therefore, I find that Woodward has failed to show that he was prejudiced by the Board's refusal to provide him with copies of the initial complaints and, accordingly, he was not deprived of a fair hearing.

8. Board's Denial of Discovery and Due Process

Pre-hearing discovery in administrative cases is not a constitutional right per se. See Am.Jur.2d Administrative Law § 327 (1994). Rather, the granting of discovery is within the sound discretion of the agency being confronted with the discovery request. Palmetto Alliance, Inc. v. South Carolina Public Service Comm'n, supra. In deciding if the agency's response to the discovery request was appropriate, the appellate "review is confined to determining if that discretion has been abused . . . (internal cite omitted)." Id.

In an appellate review process, the party that successfully establishes that an agency's discretionary decision was affected by an error of law proves that the agency abused its discretion. See Gooding v. St. Francis Xavier Hosp., 326 S.C. 248, 252, 487 S.E.2d 596, 598 (1997) ("An abuse of discretion occurs when there is an error of law."). Woodward asserts the Board abused its discretion since its discretionary decision to deny discovery violated Woodward's right to due process. Given such an assertion, to prove the denial of due process due to inappropriate discovery opportunities, Woodward must establish both that the discovery given was inadequate and that the lack of discovery created a substantial prejudice. See Palmetto Alliance, Inc. v. South Carolina Public Service Comm'n, 282 S.C. 430, 319 S.E.2d 695 (1984) (where degree of discovery was adequate since "Commission's rules on discovery provide for written interrogatories and oral depositions."). Here, under the facts of this case, the discovery obtained by Woodward was adequate and his inability to obtain additional discovery did not create a substantial prejudice.

a. Discovery Obtained

It is true the Board denied Woodward's December 17, 1996 discovery requests which he made prior to the panel hearing of January 29 - 30, 1997. However, on December 20, 1996, the prosecutor provided Woodward's attorneys with a witness list and a copy of the pharmacy reports to be used at the hearing. Additionally, Woodward already had in his possession the formal complaint and a listing of the patients that would be under review at the panel hearing. Thus, Woodward had a fairly significant degree of disclosure at least thirty days before the panel hearing.

In addition, while the Board did not provide discovery, Woodward's attorneys doggedly persisted in their quest to obtain discovery. Their efforts were in many respects successful. For example, Woodward's discovery included a series of depositions in July of 1997 which included deposing all three of the doctors who sat on the hearing panel, two of the investigators, the expert witness who examined Woodward's medical files, and one of the women accusing him of improper sexual contact. Woodward's attorneys deposed two other individuals in May of 1998 with one of those individuals being a male friend of the second woman who was accusing Woodward of improper sexual contact. In addition, Woodward conducted depositions of his three experts during January, February and July of 1998.

Considered as a whole, Woodward had sufficient discovery to enable him to prepare a meaningful defense at a meaningful time. The disclosure of the prosecutor's basic evidence before the panel hearing, the significant discovery conducted prior to the remand hearing, and the broad scope of evidence presentation afforded Woodward at the remand hearing all demonstrate adequate discovery was obtained so as not to create a due process violation.

b. Lack of Substantial Prejudice

In any event, the lack of discovery granted by the Board has not been shown to have resulted in a substantial prejudice to Woodward. Unless a party can prove the lack of discovery substantially inhibited his ability to present a defense, that party cannot show prejudice where the party had an opportunity to fully examine and cross-examine the witness participating in the disciplinary hearing. See Ross v. Medical University of South Carolina, 328 S.C. 51, 492 S.E.2d 62, 69 (1997) (where the court found "Dr. Ross' rights were not substantially prejudiced by the Committee's denial of [discovery] requests [since] Dr. Ross took full advantage of the opportunity to cross-examine the witnesses presented on behalf of MUSC [and since] he has not established his inability to depose a representative of MUSC or gain access to television footage substantially hindered his ability to respond to the charges against him."). In the instant case, Woodward conducted extensive examination of all witnesses both at the panel hearing and at the Board's remand hearing. Additionally, the examination of witnesses was augmented by Woodward's ability to present new evidence at the remand hearing. Again, considering the presentation of the case as a whole, Woodward has not demonstrated a substantial prejudice from the Board's decision to deny his discovery requests.

9. Errors Alleged To Have Produced A Generalized Unfair Hearing

Woodward asserts that the Board's procedural errors incurably infected the process by which his license was revoked thereby making it impossible for him to receive a fair hearing. Woodward also implies that these errors serve as evidence of the Board's unfair bias in favor of license revocation. I disagree.

Not all errors in the trial process require reversal. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Armstrong v. Manzo, 85 S.Ct. 1187 (1965). Due process is a flexible concept, and its requirements in a particular case depend upon the importance of the interest involved and the circumstances under which the deprivation may occur. Roper Hospital v. Clemons, 326 S.C. 534, 484 S.E.2d 598 (Ct. App. 1997).

Those errors that do not make a difference in the respondent's defense or the outcome of the hearing are harmless and do not merit continued litigation of the case. See Palmetto Alliance, Inc. v. Public Service Commission, 282 S.C. 430, 319 S.E.2d 695 (1984) (Proof of denial of due process in administrative proceeding requires showing of substantial prejudice); State v. Gunn, 313 S.C. 124, 437 S.E.2d 75 (1993) (Failure to disclose exculpatory information is reversible error only when its omission deprives a respondent of a fair hearing.); cf. Arizona v. Fulminante, 111 S.Ct. 1246 (1991) ("In applying harmless-error analysis to these many different constitutional violations, the Court has been faithful to the belief that the harmless-error doctrine is essential to preserve the 'principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.'") (emphasis added); Chapman v. California, 87 S.Ct. 824 (1967) (state and federal rules that judgments shall not be reversed for errors or defects which do not affect the substantial rights of the parties serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial).

Only in certain limited circumstances will a harmless error analysis be rendered inapplicable. Only where the entire conduct of the hearing from beginning to end is affected by the alleged error, such as the presence of an adjudicator who is not impartial, does a "structural defect" occur which affects the framework in which the hearing proceeds and renders the entire process fundamentally unfair. Cf. Arizona v. Fulminante, 111 S.Ct. 1246 (1991) (structural defects in the constitution of the criminal trial mechanism affecting the framework in which the trial proceeds defy analysis by "harmless-error" standards.).

Here, the one potential structural defect in the Board's process was prevented by the recusal of the IRC Board member prior to the Board's final and independent adjudicatory hearing. There is no concrete evidence in the record to establish that this Board member tainted the remaining Board members in their consideration of the evidence and application of the law to the evidence or that they were otherwise biased. The Board's other procedural errors are not probative of any bias. Further, the Board allowed Woodward to present extensive testimony in his defense, including the introduction of several depositions. Based on the record before me, I cannot say that the Board's procedural errors denied Woodward the opportunity to be heard at a meaningful time and in a meaningful manner. Therefore, I find that no procedural irregularities, whether considered individually or as a collective group, require reversal of the Board's decision. Armstrong v. Manzo, 85 S.Ct. 1187 (1965); Palmetto Alliance, Inc. v. Public Service Commission, 282 S.C. 430, 319 S.E.2d 695 (1984).

In summary, just as in criminal cases, the public has an interest in the finality of disciplinary proceedings. Ordering rehearings in a professional disciplinary cases "imposes significant 'social costs,' including the expenditure of additional time and resources for all the parties involved, the 'erosion of memory' and 'dispersion of witnesses' that accompany the passage of time" and make the imposition of appropriate discipline on a professional more difficult, "and the frustration of 'society's interest in the prompt administration of justice.'" Cf. Brecht v. Abrahamson, 113 S.Ct. 1710 (1993) (effect of habeas corpus relief). While these social costs are necessary where a respondent's deprivation of his livelihood is the result of an unfair hearing process, society should not bear this burden where the alleged error did not substantially prejudice the respondent, did not deprive him of a fair trial and did not make a genuine difference in the outcome of the proceedings. Therefore, I am unable to reverse the Board's order due to any of the procedural errors occurring in this case.

The appellate review of an administrative agency's decision is limited by statute. During the appellate review, the decision below can be reversed only when the review demonstrates that the agency's findings, inferences, conclusions or decisions are "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion" or are "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. " S.C. Code Ann. §§ 1-23-380(A)(6)(e) and 380(A)(6)(f) (Supp.1998).

In determining if substantial evidence exists, the reviewing court does not look for "a mere scintilla of evidence nor evidence viewed blindly from one side, but [rather looks for ] evidence which, when considering the record as a whole, would allow reasonable minds to reach the conclusion that the agency reached." Palmetto Alliance, Inc. v. South Carolina Pub. Serv. Comm'n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984). When the record is reviewed in such a light, the court must be mindful that the possibility of drawing two inconsistent conclusions from the evidence does not mean the agency's conclusions are unsupported by substantial evidence. Id. Moreover, in conducting its review of the evidence, the appellate body "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.1998). Finally, in reviewing the evidence, the appellate body places the burden on the appellant to prove convincingly that the agency's decision is unsupported by the evidence. See Hamm v. AT & T, 302 S.C. 210, 394 S.E.2d 842 (1990).

Here, Woodward has not proven convincingly that the Board issued a decision unsupported by the evidence. Indeed, substantial evidence exists to support the Board's decision that Woodward inappropriately prescribed several drugs and that Woodward is guilty of sexual misconduct with two patients.

A. Inappropriate Prescription of Drugs

Substantial evidence supports a finding that Woodward prescribed drugs to patients without adequate medical justification, monitoring, and record keeping. The drugs prescribed included Stadol, Stadol NS, Hydrocodone, Fioricet, Ultram, Zoloft, Nubain, and Phenergan. Given the record in this case, reasonable minds could have concluded from the evidence that Woodward prescribed drugs to patients without adequate medical justification, monitoring, and record keeping. While other evidence is supplied by the record, one example involving a patient who was also Woodward's employee is particularly telling.

Q: O.k. were you ever a patient of Dr. Woodward?

A: I had a chart, after I'd been seen several times.

* * * *

Q: Did he ever prescribe any drugs to you?

A: Stadol, Valium.

Q: Do you recall how often you received Stadol from him?

A: Pretty much anytime I wanted it.

Q: Can you explain?

• Well, the nasal, the one that you do the nasal injection, that I could get whenever I asked for it, and also intravenous.

• Were you ever given a physical exam in regard to these prescriptions?

A: No, sir.

Q: Were you addicted to Stadol?

A: Yes, sir.

Q: Did you ever during the course of your employment stay in his office overnight?

A: Yes, I did. Several occasions.

Q: What were the circumstances that kind of surrounded that?

A: I'd stay and do Stadol most of the night, or until I passed out.

Q: How did you get the Stadol?

A: From him, directly.

(Panel I, p. 177, lines 3, 4, 9 - 25, p. 178, lines 1 - 5).

In addition, much of the evidence supporting the Board's conclusions on prescribing and administering drugs to patients is found in Woodward's own medical records as those records were reviewed by an expert witness. Relying upon such records, the prosecutor's expert testified that Woodward's prescribing practices were inappropriate. (Panel I, pp.77, 80). In fact, the expert's opinion was supported by his detailed explanation of the problems he found with the treatment indicated for each patient.

To counter the assertion of improper prescribing, Woodward presented an expert whose testimony in many respects tended to support Woodward's prescription practice. Thus, the fact-finder had divergent views presented by the testifying experts. In such circumstances, the trier of fact is not compelled to accept any of the expert's testimony. Indeed, the fact-finder may give expert testimony the weight and credibility the fact-finder determines it deserves, and the fact-finder may choose to accept the testimony of one expert over another. Florence County Dep't of Social Serv. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992); S.C. Cable Tel. Assn. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992); Greyhound Lines v. S.C. Public Serv. Comm'n, 274 S.C. 161, 262 S.E.2d 18 (1980). Thus, the fact that the hearing panel chose to give more weight to one expert than another does not demonstrate a lack of substantial evidence. Rather, the fact-finder fulfilled its duty to weigh the respective testimony, and, correspondingly, the appellate review must fulfill its duty not to re-weigh the evidence. S.C. Code Ann. § 1-23-380(A)(6) (Supp.1998). Accordingly, the findings of the panel and the Board that Woodward failed to provide appropriate treatment to patients must be affirmed.

B. Sexual Misconduct With Patients

A physician's medical services must be provided in a manner that maintains respect for human dignity (see Regs. 81-60(A)), that demonstrates honest dealings with the patient (see Regs. 81-60(B)) and that respects the rights of the patient (see Regs. 81-60(D)). Moreover, a physician must not engage in dishonorable, unethical, or unprofessional conduct that will likely deceive, defraud, or harm the public (see S.C. Code Ann. § 40-47-200(F)(8)) and must not lack the ethical competence to practice medicine (see S.C. Code Ann. § 40-47-200(F)(12)). The Board found that Woodward had sexual contacts with two patients and that such contacts demonstrated he had failed to comply with the requirements of Regs. 81-60(A), 81-60(B), 81-60(D), and S.C. Code Ann. §§ 40-47-200(F)(8) and 40-47-200(F)(12). A review of the record establishes the existence of substantial evidence supporting the Board's determinations.

1. Patient One

Substantial evidence presented at the Panel Hearing and at the Board remand hearing are sufficient to allow reasonable minds to conclude Woodward engaged in inappropriate sexual conduct with Patient One. While recognizing that the evidence must be considered as a whole and that no part of the evidence should be considered in isolation, still, reasonable individuals could have reached the conclusion arrived at by the Board if the Board gave credence to the episodes of sexual contact as evidenced by the testimony of Patient One and the testimony of two office employees.

a. Sexual Episodes

Patient One was an employee as well as a patient of Woodward from December 1993 through May 1995. While treating her for headaches, Woodward both prescribed as well as provided her with Stadol and Stadol NS. According to Patient One's testimony, she explained that she received the drug "pretty much any time I wanted it" and admitted that she became addicted to Stadol. (Panel I, pp. 177-178).

Patient One testified she went to Woodward's house to obtain Stadol. After receiving an injection from Woodward she was "very drowsy, very forgetful, a very drunk feeling." (Panel I, p. 179, lines 23, 24). After the injection, she testified Woodward performed oral sex upon her without her consent. While no third party witnesses were present at the oral sex episode, third party witnesses substantiate other similar intimate behavior of Woodward toward Patient One. For example, Office Employee One testified to witnessing Woodward kissing Patient One. (Panel I, pp. 216-217). In another episode, Office Employee Two testified that Patient One came to Woodward's office for an overnight E. E. G. Office Employee Two explained the following:

Q: Would you please tell me what behavior you observed involving [patient one]?

A: I have observed the doctor kiss [patient one] full on the mouth, on the evening that she came in for an overnight E.E.G. and he insisted that he connect her for this overnight E.E.G. when he came in, he had told her previously to take medication. She had done so. She was highly intoxicated. I had to hold her up, and he was fondling her breast.

Q: Could you observe that she was intoxicated? Let's go back to that.

A: Her eyes glazed over, and she could not stand on her own, she couldn't sit up on her own, from the medication.

Q: And you observed him doing what to her?

A: Fondling her breast?

Q: O.k. I want to ask you this: I don't know any other way to do it. Could you possibly tell me what caused you to think he was fondling her breast?

A: Well, for one, he reached into her shirt. He was attaching electrodes, one here, and one to the side. But he sat there and was rubbing her breast. It was evident, you could see that he was doing this under her night shirt.

Q: For how long did this occur?

A: About a minute, two minutes.

(Panel I, p. 259, line 23 - p. 260, line 23).

b. Challenges To Evidence

Woodward challenges the Board's conclusion by asserting the sexual contact complained of by Patient One is best explained as being nothing more than the result of the hallucinogenic properties of Stadol. Further, Woodward argues the credibility of Patient One should have caused the Panel and Board to disregard her testimony. I cannot agree

i. Hallucinations

True, the Panel Hearing and, to a much greater degree, the Board on remand heard extensive testimony on whether the episode of oral sex complained of by Patient One could have been hallucinated. However, such testimony presented only the possibility that the allegations of sexual contact resulted from hallucinations. The Board, as the fact-finder, was free to conclude from the totality of the evidence that hallucinations did not play a role in this case. Further, the eye witness observations of intimate contact by Woodward with Patient One were not the result of hallucinations.

ii. Credibility

Additionally, Woodward raises numerous instances from the record seeking to cast doubt on the credibility of Patent One. For example, Woodward notes Patient One was an occupant of a drug rehabilitation center where she failed to admit to those officials that she was addicted to Stadol , where she denied any sexual abuse, and where she exhibited a significant degree of instability. However, Woodward's assertions that Patient One lacked credibility are not persuasive in an appellate review.

First, a court acting in an appellate review will not re-examine the credibility of the witnesses. See Armstrong v. Union Carbide, 308 S.C. 235, 417 S.E.2d 597 (Ct. App. 1992) (where the court explained that the fact-finder "makes the final determination of witness credibility and the weight to be given evidence."). Thus, the Panel Hearing and the Board, and not the ALJ sitting in an appellate review, make the credibility judgments.

Second, even if credibility could be examined here, no reason exists in this case to find that the Panel Hearing or the Board made their credibility judgments in an arbitrary or capricious manner. The fact-finder knew of Patient One's misrepresentations at the drug rehabilitation center but considered such in light of other factors relative to the charge against Woodward. For example, the unobjected to testimony from an informed physician suggests that unscrupulous physicians tend to prey upon unstable patients who find themselves in the circumstances confronted by Patient One. (Board, Day 2, Part 2, pp. 275-276). Thus, for this reason as well as others, no basis exists to find the Panel or the Board failed to perform their duties to properly examine the credibility of the witnesses.

2. Patient Two

Woodward treated Patient Two from approximately November 1, 1994 through May 16, 1995. Patient Two was being treated by Woodward for migraine headaches related to an automobile accident. Substantial evidence supports the conclusion that Patient Two became addicted to Stadol because of the improper prescribing of the drug by Woodward.

Just as with Patient One, substantial evidence supports the conclusion that Woodward engaged in improper sexual contact with Patient Two. Patient Two testified that Woodward made a house call to her and that during that house call, Woodward administered medication to Patient Two which caused her to pass out and from which she did not fully awaken for several days. (Panel 1, pp. 149-150). Patient two testified that during the early stage of her passing out, Woodward touched her genitals. (Panel 1, pp. 149-150).

The record contains evidence supportive of Patient Two's testimony. For example, the house call to Patient Two was in fact made but was not recorded by Woodward in his medical charts. (Panel 1 pp. 429-430). In addition, a neighbor confirmed that Patient Two did in fact often sleep for several days after receiving an injection for migraine headaches. Again, as with Patient One, while Woodward presents aspects addressing Patient Two's credibility, such a factor is not a meaningful consideration in the substantial evidence analysis of this case. Armstrong v. Union Carbide, supra. Accordingly, substantial evidence is present to such a degree that reasonable minds could conclude Woodward engaged in inappropriate sexual conduct with Patient Two.

Thus, based upon all of the above, the Board's decision to revoke Woodward's license to practice medicine is affirmed.

AND IT IS SO FOUND.

______________________

RAY N. STEVENS

Administrative Law Judge

Dated: June 1, 1999

Columbia, South Carolina

1. The Board members at the formal complaint meeting neither reviewed nor received evidence of Woodward's wrong-doing. Rather, the Board acted solely on a recommendation of the LLR's General Counsel. Thus, the formal complaint stage did not subject the Board members to potential evidence or testimony which they would later be called upon to review.

2. Woodward learned of the articles through discovery. The evidence demonstrates that Dr. Simons did not provide the articles to the parties since she believed her package was merely copies of what the parties already had. Likewise, she knew the other two panel doctors had received packages and assumed their packages contained the same material as her package. Thus, her lack of disclosure to the parties was unintentional.

3. Woodward also argues an error resulted from the investigator's failure to present exculpatory evidence to the IRC during the IRC's "probable cause" consideration of whether to recommend the issuance of a formal complaint. I do not find such an argument persuasive and thus do not discuss the matter in detail. Rather, even in a criminal case, an appellate court will not consider the defendant's claim that the prosecutor failed to present exculpatory evidence at the grand jury "probable cause" stage once the defendant has been found guilty following a fair trial. See State v. Nelson, 953 P.2d 650 (Idaho App. 1998) and cases cited therein at 655. As the decision in the instant case concludes, Woodward has been found "guilty" and that determination has been reached after a "fair trial." Accordingly, the only exculpatory issue discussed extensively in this decision is whether a duty exists to disclose to Woodward exculpatory evidence in the possession of the Board.