ORDERS:
ORDER
STATEMENT OF THE CASE
This matter is before me pursuant to S.C. Code Ann. § 1-23-600(D) (Supp. 1998) of the Administrative
Procedures Act (APA) upon appeal from a Final Order of the South Carolina Department of Labor,
Licensing, and Regulation, State Board of Medical Examiners (Board), dated November 2, 1998, in which
the Board indefinitely suspended the Appellant's license to practice medicine in this state.
The Appellant is licensed to practice medicine in South Carolina. This case involves multiple findings of
misconduct by the South Carolina Board of Medical Examiners against the Appellant. A Notice and
Complaint dated May 15, 1998 was served upon the Appellant, charging him with violating S.C. Code Ann.
§ 40-47-200(F)(1), (7), (8) and (9) (1986 and Supp. 1998). The Appellant filed an answer which denied all
allegations of misconduct. A Hearing Panel of the Medical Disciplinary Commission (Hearing Panel or
Panel) heard the matter on June 10, 1998 pursuant to S.C. Code Ann. §§ 40-47-10, et seq. (1986 and
Supp. 1996), and §§ 1-23-310, et seq., (1986 and Supp. 1998). The Hearing Panel issued its Certified
Report on August 12, 1998. The Board considered the Certified Report and recommendations of the
Hearing Panel on October 21, 1998 and issued its Final Order on November 2, 1998 from which this Appeal
is taken.
The Complaint of the Board's Staff (Complainants) alleged nine separate instances of misconduct as follows:
1. An unethical advertisement.
2. An unethical approach to another physician's patient in an effort to perform a surgical procedure upon
her without discussing the matter with her attending physician. This approach was allegedly accompanied
by false statements about the hospital and other physicians.
3. (a) Making a false statement to the parents of a small child to the effect that his attending physicians had
misdiagnosed the child's condition.
(b) Making a false statement to the parents of that same child to the effect that one of his attending
physicians had been forced to leave the University of Arkansas because of problems and conflicts there.
(c) Performing surgery on that same child without discussing his diagnosis with the attending physicians.
4. Administering a blood transfusion to a Jehovah's Witness despite knowledge of the patient's express
written instructions to the contrary.
5. Making a false statement on his application for re-certification for a South Carolina medical license for
the period of 1994-1995.
6. Making a false statement on his application for re-certification for a South Carolina medical license for
the period of 1996-1997.
7. Making a false statement in a document connected with the application for privileges at Anderson
Hospital.
During discussions with the Appellant's attorneys, the Complainants' attorney informed them that charge 1
would be dropped. The remaining allegations were heard on May 15, 1998 before the Hearing Panel. The
Panel found that the Complainants did not meet the burden of proof for charges 2 and 3(a). The Panel also
failed to make a finding as to charge 7. However, the Panel found that the Appellant was guilty of the
misconduct charged in 3(b), 3(c), 4, 5, and 6. After reviewing the Panel's report and recommendations, the
Board issued a written decision on November 2, 1998, finding the Appellant guilty of misconduct in regard
to charges 3(b), 4, 5, and 6. The Board also failed to make a finding concerning charge 7.
More specifically, the Board ordered that the suspension be stayed and the Appellant's license reinstated in a
probationary status only after he paid a fine of Five Thousand ($5,000) Dollars. The Board further ordered
that after payment of the fine, that the Appellant's license indefinitely continue in a probationary status upon
the following terms and conditions: 1) the Appellant appear and report to the Board as requested; 2) the
Appellant attend and successfully complete, at his own expense, an ethics course approved by the Board; 3)
the Appellant comply with the terms of the Board Order and all state and federal statutes and regulations
concerning the practice of medicine; and 4) the Appellant advise the Board in writing of any changes in
address, practice, hospital privileges, professional status or compliance with the Board's Order.
The Appellant filed Notice of Intent to Appeal with the Administrative Law Judge Division (ALJD or
Division) on December 7, 1998. The appeal was heard at the Division on September 8, 1999. Upon
consideration of the record, applicable law, and counsels' arguments, the Order of the Board is affirmed in
part, reversed in part, and remanded to the Board for reconsideration of the appropriateness of the sanctions
it ordered in light of this decision.
DISCUSSION AND CONCLUSIONS
Standard of Review
This case is before the ALJD as an appeal of an agency action. As such, the ALJD sits in an appellate
capacity under the Administrative Procedures Act, rather than as an independent finder of fact. In South
Carolina, the provisions of the Administrative Procedures Act -- specifically S.C. Code Ann. §1-23-380(A)(6) -- govern the reasons an appellate body may reverse or modify an agency decision. That section
states:
The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced
because the administrative findings, inferences, conclusions or decisions are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
S.C. Code Ann. § 1-23-380(A)(6) (1986 and Supp. 1998).
A decision is supported by "substantial evidence" when the record as a whole allows reasonable minds to
reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C.
634, 321 S.E. 2d 63 (Ct. App. 1984). The well-settled case law in this state has also interpreted the rule to
mean that a decision will not be set aside simply because reasonable minds may differ on the judgment. Lark
v. Bi-Lo, 276 S.C. 130, 276 S.E. 2d 304 (1981). The fact that the record, when considered as a whole,
presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the
agency's finding from being supported by substantial evidence. Waters v. South Carolina Land Resources
Conservation Comm'n, 321 S.C. 219, 467 S.E. 2d 913 (1996); Grant v. South Carolina Coastal Council,
319 S.C. 348, 461 S.E. 2d 388 (1995); Palmetto Alliance, Inc. v. South Carolina Public Service Comm'n,
282 S.C. 430, 319 S.E. 2d 695 (1984).
In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be
correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 466 S.E. 2d 357 (1996), citing Kearse v. State Health
and Human Services Finance Comm'n, 318 S.C. 198, 456 S.E. 2d 892 (1995). Furthermore, the reviewing
court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on
questions of fact. Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E. 2d 388 (1995), citing
Gibson v. Florence Country Club, 282 S.C. 384, 318 S.E. 2d 365 (1984). Finally, the party challenging an
agency action has the burden of proving convincingly that the agency's decision is unsupported by substantial
evidence. Waters v. South Carolina Land Resources Conservation Comm'n, 321 S.C. 219, 467 S.E. 2d 913
(1996), citing Hamm v. AT&T, 302 S.C. 210, 394 S.E. 2d 842 (1994).
Inadmissible Hearsay Document
The Board found that the Appellant committed misconduct in 1992 when he made statements to the parents
of a minor patient who were seeking a second opinion concerning the minor patient's treatment. However,
the parents did not testify at the hearing before the Board. The only evidence offered to support the remarks
about the treating physicians was a hand-written letter purporting to be from the patient's mother.
The patient had originally been treated at the Medical University of South Carolina (MUSC). At the parents'
request, the patient was transferred to Roper Hospital for treatment. Following successful surgery, the
patients' parents requested that he be transferred back to MUSC. At the hearing, the Complainants called
Mr. Joseph C. Good, Jr., General Counsel for MUSC, as a witness for the purpose of sponsoring a letter
from the minor patient's mother to whom the Appellant allegedly made the disparaging remarks. Neither
MUSC nor Mr. Good is a party to this case. Mr. Good received a copy of this letter from a physician on the
medical staff of MUSC. Mr. Good did not testify as to the time frame vis a vis the alleged event in which he
received the letter.
Counsel for the Complainants moved for the admission of the letter on the ground that the letter retained by
Mr. Good fell within the business records exception to the hearsay rule. Counsel for the Appellant objected
to the introduction of the letter on the ground that it constitutes hearsay. The Panel admitted the letter under
the business records exception.
The business records exception is set forth in Rule 803(6), SCRE. South Carolina also has enacted a version
of the Uniform Business Records As Evidence Act, S.C. Code Ann. § 19-5-510 (Supp. 1998). The elements
that must be met in order to satisfy the business records exception are: (1) the record must be prepared at or
near the time of the event recorded; (2) the record must be made by or from information transmitted by a
person with knowledge; (3) the record must be prepared in the regular course of business; (4) a qualified
witness must identify the record and its mode of preparation; and (5) the record must be trustworthy in the
opinion of the court. Danny R. Collins, South Carolina Evidence 424 (1995).
The record contains no evidence as to whether the letter was prepared at or near the time of the recorded
event. Furthermore, the mother had no duty to report the event to MUSC. Thus, the letter was not made by
a person who has knowledge of the event and a duty to report the event to MUSC. See Grand Strand
Const. Co. v. Graves, 269 S.C. 594, 239 S.E. 2d 81 (1977). Moreover, the letter was prepared by a third
party and not "in the regular course" of MUSC's business. See State v. McFarlane, 279 S.C. 327, 306 S.E.
2d 611 (1983). Additionally, the evidence did not establish the requisite "mode of preparation" of the letter.
State v. Sarvis, 317 S.C. 102, 450 S.E. 2d 606 (Ct. App. 1994).
Because the letter does not meet the five criterion that form the business records exception under the hearsay
rule, the letter is inadmissible. Therefore, since this letter was the only evidence in the record that formed the
basis of the Board's Finding of Fact 4 and Conclusion of Law 3(B), the admission and subsequent reliance
upon this letter was prejudicial to the Appellant.(1) However, that evidentiary error does not result in a denial
of due process nor does it render the entire decision below reversible because other charges of misconduct
were supported by competent evidence.
Burden of Proof
The Appellant argues the hearing panel improperly shifted the burden of proof. This argument appears to be
based upon Appellant's contention that the Panel Chairman inquired about quality of care issues when no
misconduct was alleged as to quality of care. However, the Chairman's question concerned whether the
consent form for patient W.B. or the written policy on blood transfusion was in W.B.'s chart. The question
was whether "y'all" made any effort to produce those records. The Appellant argues that the term "y'all"
referred to Appellant's attorneys, but the record does not reflect that assertion. The question was apparently
addressed to the room in general or to the prosecutor, who had just informed the Panel that W.B.'s chart
was lost by Roper Hospital. The interplay between counsel and the Hearing Panel on these pages falls far
short of a burden shifting. It merely demonstrates the desire on the part of the Panel to see the lost records.
If the question placed the blame for the loss of the records on anyone at the hearing, I find that the burden
appears to have been placed on the prosecutor.
Introduction of Irrelevant Evidence
The Appellant contends that the testimony of Dr. Fogle, who chaired the ad hoc committee investigating
Appellant's conduct at Roper Hospital, and a letter sent by Dr. Hayes, the Vice Chairman of the Board at
Roper Hospital, were inadmissible hearsay. However, neither Dr. Fogle's testimony nor Dr. Hayes' letter
were hearsay because the letters were not offered to prove the truth of the matter asserted. This entire
testimony was offered to prove that the Appellant voluntarily resigned his privileges at Roper Hospital under
pressure. A statement which is not "offered in evidence to prove the truth of the matter asserted" is not
hearsay. Rule 801(c), SCRE. Furthermore, had it been error to allow the introduction of Dr. Fogle's
testimony or Dr. Hayes' letter, the error was harmless. The Appellant admitted during examination by his
own attorney that he resigned his privileges at Roper Hospital and that he left Charleston under "difficult"
and "stressful" conditions. The improper admission of hearsay evidence is reversible error only when the
admission of the evidence results in prejudice to the objecting party. Jackson v. Speed, 326 S.C. 289, 486
S.E. 2d 750 (1997).
Discovery
The Appellant raises questions as to his denial of discovery by the Complainants. He asserts that he served
standard discovery requests which might be applicable in civil cases and "Brady-type" discovery which might
be applicable in criminal cases. However, the Appellant did not establish that he ever brought his discovery
protests to the Board by way of a Motion to Compel or any other means. An issue cannot be raised for the
first time on appeal. Gurley v. United States Auto. Ass'n, 279 S.C. 449, 309 S.E. 2d 11 (Ct. App. 1983);
Kiawah Resort Associates v. South Carolina Tax Commission, 318 S.C. 503, 458 S.E. 2d 542 (1998).
Furthermore, in the context of an administrative proceeding, the South Carolina Supreme Court has held that
"the scope and conduct of discovery are within the sound discretion of the trial court . . . , and . . . after [the]
. . . final agency order, review is confined to determining if that discretion has been abused . . . ." Palmetto
Alliance, Inc. v. S.C. Public Service Comm'n, 282 S.C. 430, 319 S.E. 2d 695 (1984), quoting Marroquin-Manriquez v. I.N.S., 699 F.2d 129 (3d Cir. 1983). Therefore, since the Appellant did not raise his discovery
complaints at the hearing before the Board, I conclude that those matters were not properly preserved for
appeal in the record below.
Remaining Misconduct
The Board affirmed the Hearing Panel's finding that the Appellant violated the Medical Practices Act and the
Principles of Ethics in his treatment of Patient W.B., a Jehovah's Witness. The record is undisputed that,
upon admission to Roper Hospital, W.B. signed a standard hospital form declaring his religious convictions
against blood transfusions. In fact, the Appellant admitted that he was aware of W.B.'s wishes concerning
blood transfusions. Furthermore, the Hearing Panel found the Appellant "lacked credibility" and was "not
forthcoming with plain and concise answers to questions asked of him." Likewise, there is no dispute in the
evidence that Appellant ordered and administered a post-operative blood transfusion to W.B. in spite of
W.B.'s clearly-stated wishes to the contrary. That evidence constitutes substantial evidence upon which the
Board could have rested its decision regarding this violation.
The Board also found that Appellant violated the Medical Practices Act and the Principles of Ethics when he
falsely stated in his license application for 1994-1995 that he had never voluntarily surrendered his privileges
at a hospital. The record shows that Appellant answered "no" to question number 5 which inquired about
the surrender of hospital privileges. It is unrefuted that Appellant had previously resigned his privileges at
Roper Hospital. The Board's findings in this regard are supported by substantial evidence in the record.
Additionally, the Board found that Appellant violated the Medical Practices Act and the Principles of Ethics
when he falsely stated in his 1996-1997 license application that he was licensed to practice medicine in the
State of Georgia. The record shows that Appellant answered "yes" to the question which asked if he were
licensed in any other state. It is likewise unrefuted that Appellant was not admitted to practice in Georgia or
anywhere else other than South Carolina on the date he signed the application. The Board's finding in this
regard is also supported by substantial evidence in the record.
CONCLUSION
Based upon the above, I conclude that the Appellant was afforded due process in the instant case; that the
Board did not act in violation of constitutional or statutory provisions; that the Board did not act in excess of
its statutory authority; that the Board's decisions were not made upon unlawful procedure; and that the
Board did not act arbitrarily with caprice, abuse its discretion, or exercise unwarranted discretion. As to the
Board's decision regarding Complainants' Exhibit 1, I have found that the letter from Donna Luzier was
inadmissible hearsay. I have further found that the charges related to the alleged slander of Dr. Bissada were
based solely on that letter. I conclude that the Board's finding of misconduct based on that charge should be
reversed. All of the Board's other findings of misconduct were based on competent, reliable, and substantial
evidence on the whole record. They are, therefore, affirmed.
Having reversed the Board's finding of misconduct alleged in the Luzier letter, I now address the issue of the
appropriate sanction(s). The Board is better situated to fashion the appropriate sanction in this case.
Indeed, the issue of appropriateness of the sanction is not an issue in this appeal. Since this Division has the
inherent right to remand, sua sponte, the sanction issue is remanded to the Board for it to determine what
sanction is appropriate based upon the misconduct that has been upheld. Therefore,
IT IS ORDERED that the Board's finding of misconduct as alleged in Complainants' Exhibit 1 is reversed.
IT IS FURTHER ORDERED that the remaining findings of misconduct as to charges 4, 5, and 6 are
affirmed.
IT IS FURTHER ORDERED that the case is remanded to the South Carolina Board of Medical Examiners
to reconsider the sanction(s) imposed upon the Appellant based only on the findings of misconduct affirmed
by this Court.
AND IT IS SO ORDERED.
Ralph King Anderson, III
Administrative Law Judge
March 14, 2000
Columbia, South Carolina
1. The Appellant also contends that the Complainants should have produced expert testimony that "dishonesty" and
"slandering a colleague's good name" constitutes misconduct. However, this Court need not reach this issue because the
findings of dishonesty and slander relative to Appellant's comments about Dr. Bissada were supported only by this inadmissible
hearsay document. Having reversed those findings solely on the hearsay issue, it is not necessary to determine the question of
whether expert testimony was required. |
