ORDERS:
FINAL ORDER AND DECISION
The Appellant appeals the Order of the State Board of Medical Examiners (Board) dated May 31, 1999, publicly
reprimanding the Appellant, suspending his medical license subject to conditions, and imposing a $10,000 fine on him
because of his conduct towards a patient. I affirm.
On September 18, 1997, the Board filed this action against the Appellant. The alleged violations were based on a single
incident that occurred on May 3, 1995 between the Appellant and an eighteen-year-old patient (M.C.). A panel of the
Medical Disciplinary Commission heard this case on January 28, 1998 and issued an opinion on February 10, 1998. The
full Board of Medical Examiners heard this matter and issued an opinion on July 20, 1998. An appeal to the Administrative
Law Judge Division (Division) followed. Judge Geathers, who was first assigned this appeal, remanded the case to the
Board on March 8, 1999, because the Board failed to adequately explain or support its conclusions in the order. The Board
issued a subsequent order, the Order on Remand, on May 31, 1999. The Appellant now appeals.
FACTS
From 1985 until April 1996, the Appellant provided medical services for M.C., including general medical treatment and
treatment for depression, which included prescribing Zoloft and Prozac. The Appellant also had constant social interaction
with M.C. and her family and was involved in a serious romantic relationship with M.C.'s older sister at one time. The
Appellant's last medical treatment of M.C. occurred on April 16, 1996 when he prescribed Zoloft for depression and
advised M.C. to return two weeks later.
On May 3, 1996, the Appellant accompanied M.C. to dinner. At the restaurant, the Appellant consumed alcoholic
beverages. While at the restaurant, and later at a local nightclub, the Appellant saw some of his friends and introduced
M.C. as his niece. After leaving the nightclub that evening, the Appellant and M.C. went to the Appellant's house. At his
house, the Appellant continued to drink and M.C. drank some beer. The Appellant kissed M.C., unhooked her bra, fondled
and caressed her breasts, and put his hand inside her pants. After expressing her desire to end the advances, M.C. called
friends from a portable phone from the Appellant's bathroom. M.C. was upset when she left the Appellant's home and was
picked up on the road by friends. M.C. later filed a complaint with the police about this incident, and on April 9, 1997, the
Appellant pleaded guilty to a charge of simple assault in magistrate's court.(1)
Jurisdiction on appeal is vested in the Division pursuant to S.C. Code Ann. §§ 1-23-600 (Supp. 1999) and 40-11-350
(Supp. 1999).
ISSUES
1. Did the Board err in concluding that the Appellant failed to provide competent medical service with compassion and
respect for human dignity?
2. Did the Board err in concluding that sexual involvement with a patient is explicitly or implicitly prohibited and is grounds
for disciplinary action?
3. Did the Board err in concluding that the Appellant engaged in "sexually predatory behavior"?
4. Did the Board err in concluding that the Appellant's alleged misconduct on a single social occasion precluded him from
objectively providing competent medical care?
5. Did the Board err in concluding that the Appellant failed to respect the law?
6. Did the Board err in concluding that the Appellant failed to respect the law by "giving" M.C. beer at his home?
7. Did the Board err in concluding that the Appellant failed to respect the rights of patients?
8. Did the Board err in concluding that the Appellant exploited the vulnerability of M.C.?
9. Did the Board err in concluding that the Appellant's alleged misconduct interfered with the objectivity necessary for the
proper care of a patient?
10. Did the Board err in concluding that the Appellant's alleged misconduct proved to be emotionally detrimental to M.C.?
11. Did the Board err in concluding that the Appellant has engaged in conduct likely to deceive, defraud, or harm the
public?
12. Did the Board err in ordering a public reprimand, a $10,000.00 fine, and the indefinite suspension of the Appellant's
medical license?
STANDARD OF REVIEW
This case is before the Division as an appeal of an agency action. As such, the Division sits in an appellate capacity under
the Administrative Procedures Act (APA), rather than as an independent finder of fact. The APA governs the reasons an
appellate body may reverse or modify an agency decision. That section provides:
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. 1999).
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). 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).
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). 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). 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).
DISCUSSION AND CONCLUSIONS
The Board concluded that the Appellant violated S.C. Code Ann. Section 40-47-200(F)(7) and (8), and Regulation 81-60(A), (C), and (D). The statute, in relevant part, reads:
(F) "Misconduct" which constitutes grounds for revocation, suspension, or restriction of a license or limitation on or
discipline of a licensee is a satisfactory showing to the board that the holder of a license: . . . (7) has violated the principles
of ethics as adopted by the State Board of Medical Examiners and published in its regulations; (8) is guilty of engaging in
dishonorable, unethical, or unprofessional conduct that is likely to deceive, defraud, or harm the public . . . .
S.C. Code Ann. § 40-47-200(F)(7) (Supp. 1999).
The regulation provides, in part:
A physician shall be dedicated to providing competent medical service with compassion and respect for human dignity. . . .
A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are
contrary to the best interests of the patient. A physician shall respect the rights of patients, of colleagues, and of other
health professionals, and shall safeguard patient confidence within the constraints of the law.
25A S.C. Regs. 81-60 (A), (C), and (D) (Supp. 1999).
1. The Appellant first contends the Board erred in concluding that he failed to provide competent medical service with
compassion and respect for human dignity. The Appellant argues that even if the charges were true, there is no evidence
misconduct during a social encounter affected the medical service he rendered M.C. According to the Appellant, his course
of medical treatment, essentially on a pro bono basis, indicates that he exhibited responsible, compassionate care to M.C.
for the many years he intermittently treated her.
The physician-patient relationship must be a compassionate one. 25A S.C. Regs. 81-60 (A) (Supp. 1999). "Compassion"
is defined as a "deep awareness of the suffering of another coupled with the wish to relieve it." The American Heritage
College Dictionary, 284 (3d ed. 1993). Before a physician can properly relieve a patient's suffering, the patient must place
a great deal of trust in the physician:
A person who lacks medical training usually must disclose much information to his or her physician which may have a
bearing upon diagnosis and treatment. Such disclosures are not totally voluntary; therefore, in order to obtain cooperation,
it is expected that the physician will keep such information confidential. See generally 61 Am.Jur.2d Physicians, Surgeons,
and Other Healers § 169 (1981). "Being a fiduciary relationship, mutual trust and confidence are essential." Id. at § 167.
McCormick v. England, 328 S.C. 627, 635, 494 S.E.2d 431, 435 (Ct. App. 1997).
Recognizing the importance of the trust placed in the physician, the General Assembly empowered the State Board of
Medical Examiners to discipline physicians for exploiting this trust. See S.C. Code Ann. § 40-47-200 (Supp.1999) and
25A S.C. Code Ann. Regs. 81-60(D) (Supp.1996).
In the case at bar, the Appellant himself prescribed depression medication to M.C. two weeks before the night in question.
He, undeniably, knew of her diagnosis. The medication coupled with the accompanying diagnosis would likely render M.C.
vulnerable to advances such as those made by the Appellant. According to M.C., the Appellant's actions compounded her
suffering. I find no error in the Board's determination that the Appellant failed to provide competent medical service with
compassion and respect for human dignity.
2. The Appellant next argues that because sexual involvement with a patient is not explicitly or implicitly prohibited, the
Board erred in concluding that such conduct is grounds for disciplinary action. I disagree.
The Appellant properly points out that Judge Geathers's order stated that because sexual conduct with a patient is not per
se misconduct, the Board was required to show a nexus between the conduct and the alleged wrongdoing. Judge Geathers
wrote:
South Carolina does not have an express statutory provision which prohibits sexual contact between a physician and patient
during the time the physician is providing medical care to the patient. Therefore, the occurrence of such an act by a
physician is not per se misconduct. In order to establish misconduct, the Board must show that a physician engaged in
conduct proscribed in § 40-47-200, which defines misconduct. Hence, in this case, it is incumbent upon the Board to show
the nexus between the conduct and the alleged wrongdoing. In other words, the Board must explain and supply legal
analysis as to why and how Appellant's conduct constitutes (1) a failure to provide competent medical service with
compassion and respect for human dignity, (2) a failure to respect the law, (3) a failure to respect the rights of patients, and
(4) dishonorable, unethical, or unprofessional conduct likely to deceive, defraud, or harm the public.
Order at 4.
In the Order on Remand, the Board relied on an American Medical Association's publication entitled Current Opinions with
Annotations as well as Annotation, Improper or Immoral Sexually Related Conduct Toward Patient as Ground for
Disciplinary Action Against Physician, Dentist, or Other Licensed Healer, 59 A.L.R.4th 1105 (1988).
Initially, the Appellant seems to challenge the Board's reliance on the AMA publication as well as the facts supporting the
ultimate finding of misconduct. I find no merit to either argument.
The Appellant contends the reliance on the AMA publication was misplaced because the cited portions of Current Opinions
showed only what may occur in similar situations. He argues his alleged misconduct was not similar to the situation
described in the AMA publication. Further, he argues, the publication did not indicate what will occur or what has
occurred, i.e. the opinion offered in the AMA publication is not sufficiently definite to prove harm would come to the
patient.
The Board, however, explained that the AMA publication "is intended to serve as a source of guidance for responsible
professional medical behavior." The AMA publication opines that harm is likely to occur when a physician has sexual
relations with a patient. Because the opinion is not couched in more definite terms, a medical board may focus on the facts
of a specific case. This flexibility actually inures to the Appellant's benefit. In any case, the Board used the AMA
publication to support its conclusion that the alleged misconduct was impliedly prohibited and fell within the statutory
definition of misconduct. Contrary to the Appellant's assertions, the Board found his conduct implicitly prohibited. I find
no error in the Board's legal analysis.
The Appellant's challenge regarding the Board's conclusion that his conduct amounted to "misconduct" is discussed above
in Issue 1. Again, I find no error.
3. The Appellant next disputes the Board's conclusion that he engaged in "sexually predatory behavior." Specifically, the
Appellant contends there is no evidence in the record that the Appellant is a sexual predator or that he engaged in sexually
predatory behavior. As noted by the Appellant, the phrase "sexually predatory behavior" is not defined in the Board's
Order on Remand. The Appellant, however, supplies a definition found in the South Carolina Sexually Violent Predator
Act. That Act has absolutely no bearing on this case.
First, the term defined in the Act is "sexually violent predator." S.C. Code Ann. § 44-48-30(1) (Supp. 1999). Further, the
purpose of this Act is to provide for involuntary civil commitment for "a mentally abnormal and extremely dangerous group
of sexually violent predators." S.C. Code Ann. § 44-48-20 (Supp. 1999). Moreover, the Board found that the "sexually
predatory behavior was improperly directed" toward M.C. The Board did not find that the behavior was illegally directed
toward M.C. The strong words chosen by the Board merely express its repugnance to the Appellant's actions. I find no
error in the terminology chosen.
4. The Appellant next argues the Board erred in concluding that his alleged misconduct on a single social occasion
precluded him from "objectively providing competent medical care." The regulation, however, requires the Appellant to
provide "competent medical service with compassion and respect for human dignity." Reg. 81-60(A) (Supp. 1999)
(emphasis added). I found no error in the Board's conclusion that the Appellant failed to provide medical services with
compassion and respect for human dignity (see supra Issue 1). Similarly, I find no error here.
5. The Appellant next contends that the Board's Order on Remand, other than the conclusion that the Appellant gave M.C.
a beer, "contains no explanation of how appellant allegedly otherwise failed to respect the law." According to the
Appellant, the order on remand does not comply with Judge Geathers's earlier directive. I disagree.
The Order on Remand states:
The laws which the [Appellant] failed to respect include the statutory provisions of the medical practice act and Board
regulations specified in this order as violations, as well as the provisions of S.C. Code Ann. § 61-4-90 which prohibits the
transfer or giving to a person under the age of twenty-one years for the purpose of consumption of beer or wine.
Order on Remand at 3 (emphasis added).
Contrary to the Appellant's assertions, the Board specified several statutory provisions that the Appellant violated: 1) the
medical practice act, i.e. S.C. Code Ann. 40-47-200(F)(7) and (8); 2) Regulation 81-60 (A), (C), and (D); and 3) S.C.
Code Ann. § 61-4-90. I, therefore, find the Board adequately specified the statutory provisions supporting the ultimate
finding that the Appellant "failed to respect the law."
6. The Appellant next argues there is no evidence that he "gave" M.C. beer at his home.
S.C. Code Ann. Section 61-4-90 (Supp. 1999) provides: "It is unlawful for a person to transfer or give to a person under
the age of twenty-one years for the purpose of consumption beer or wine at any place in the State." The Appellant
concedes that the evidence "at most . . . allowed [M.C.] to consume a beer in his home." He then contends that this
evidence in "no way supports the legal conclusion that appellant is guilty of a misdemeanor . . . ."
First of all, the Board does not have the jurisdiction to find the Appellant guilty of a misdemeanor. See South Carolina
Constitution, Article V, Section 7 (Circuit courts have general criminal jurisdiction.). Further, a different standard of proof
is required for criminal proceedings. See Anonymous (M-156-90) v. State Bd. of Medical Examiners, 323 S.C. 260, 473
S.E.2d 870 (Ct. App. 1996) quoting Addington v. Texas, 441 U.S. 418, 423-24 (1979) (discussing the continuum of the
standards of proof). The Board did find, however, that:
The [Appellant's] 18 year old patient consumed beer at the [Appellant's] house at the time of the sexual incident with which
the [Appellant] is charged. The Board concludes that the [Appellant] "gave" beer to his 18 year old patient in violation of
the provisions of S.C. Code Ann. § 61-4-90.
Order on Remand at 3-4.
"Give" means to "transfer ownership or possession without compensation. To bestow upon another gratuitously or without
consideration." Black's Law Dictionary, at 475 (Abr. 6th ed. 1991). The Appellant purchased, at some point in time, the
beer M.C. retrieved from the Appellant's refrigerator. He admittedly "allowed" her to have it. This evidence adequately
supports the Board's finding that the Appellant "gave" M.C. the beer.
7. The Appellant argues the Board erred in concluding that he failed to respect the rights of patients because his misconduct
affected only one patient. There is simply no requirement that misconduct affect more than one patient. I agree with the
Board that this tortured interpretation of 81-60(D) defies logic. I find no error in the Board's refusal to give the Appellant
"one free bite."
8. The Appellant next contends that the Board erred in concluding that the Appellant exploited the vulnerability of M.C..
The Appellant points out that M.C. lived on her own and worked. Further, she consented to "go on a date with the
Appellant." This argument confuses vulnerability with maturity.
"Vulnerable" is defined as "capable of being wounded: defenseless against injury." Webster's Third New International
Dictionary, 2567 (unabr. 1993). "Mature" is defined as "having attained the normal peak of natural growth and
development . . . having or expressing the mental and emotional qualities that are considered normal to an adult socially
adjusted human being." Id. at 1394. The two words are neither synonymous, nor mutually exclusive. Although M.C. may
have been mature in some aspects of her life, her depression and medication rendered her vulnerable. The Appellant's
knowledge of her diagnosis and medication and his advances adequately support the Board's conclusion that the Appellant
exploited M.C.'s vulnerability. I find no error.
9. The Appellant next contends that the Board erred in concluding that his alleged misconduct interfered with the
objectivity necessary for the proper care of a patient. This issue has already been addressed. See supra Issue 4.
10. The Appellant argues that the Board erred in concluding that the Appellant's alleged misconduct proved to be
emotionally detrimental to M.C.. He asserts there was no evidence "other than the unsubstantiated testimony of M.C.
regarding her emotional health." The judging of the credibility of witnesses and the weighing of evidence are uniquely
functions of the fact finder who heard the witness. See Bivens v. Watkins, 313 S.C. 228, 437 S.E.2d 132 (Ct. App. 1993).
In this case, the Board's conclusions are supported by the only evidence offered on the issue. I find no error.
11. The Appellant asserts that the Board erred in concluding that he engaged in conduct likely to deceive, defraud, or harm
the public. He claims that the behavior represented an isolated incident and that there is no evidence that it will be
repeated. The Appellant relies on Daisy Outdoor Advertising, Inc. v. Abbott, 322 S.C. 489, 473 S.E.2d 47 (1996) for the
proposition that repetition is a prerequisite to a finding that conduct is likely to deceive, defraud, or harm the public. That
unfair trade practices case, however, is inapposite. There is simply no requirement that the offensive behavior be a pattern
before it becomes sanctionable. I find no error in the Board's decision to sanction the Appellant for misconduct that only
occurred once.
SANCTIONS
The Board ordered a public reprimand, a $10,000.00 fine, and the indefinite suspension of the Appellant's medical license.
The Appellant challenges these sanctions on several grounds: 1) they are excessive; 2) they are arbitrary; 3) they are
"inconsistent with the purpose of the proceedings because the public interest and the need for the continuing services of
qualified medical doctors was ignored;" and 4) they were improperly imposed based on a finding of professional ineptitude
although there was no evidence supporting that finding. I find no error.
As a creature of statute, the Board possesses "only those powers that are expressly conferred or necessarily implied for it to
effectively fulfill the duties for which it is charged." Captain's Quarters Motor Inn, Inc. v. South Carolina Coastal Council,
306 S.C. 488, 490, 413 S.E.2d 13, 14 (1991). The legislature vested the Board with wide latitude in fashioning sanctions
in physician disciplinary cases.
The State Board of Medical Examiners, if it has reason to believe grounds exist, may order the revocation or suspension of
a license to practice medicine . . . or take other reasonable action short of revocation or suspension . . . . In addition to or
in lieu of action taken by the board affecting the license of a licensee, when it is established that the individual has violated
this chapter or any regulation promulgated by the board, the board may require the licensee to pay a civil penalty of up to
ten thousand dollars to the board and the costs of the disciplinary action.
S.C. Code Ann. § 40-47-200(A) (Supp. 1999).
An exercise of discretion by an administrative agency will not be disturbed unless there is an abuse of discretion evidenced
by a showing that the action of the agency was arbitrary or unlawful. 73A C.J.S. Public Administrative Law and Procedure
§ 223a (1983). An administrative sanction cannot be said to be unduly harsh if it is within the Board's authority to impose.
South Carolina Bd. of Examiners in Optometry v. Cohen, 256 S.C. 13, 180 S.E.2d 650 (1971). The authority to review
the findings of and punishment imposed in the Board's order is confined to the correction of errors of law. This tribunal is
not permitted to substitute its judgment for that of the Board unless the Board's action was influenced or controlled by
some erroneous view of the law, was without substantial evidence to support it, or amounted to a manifest abuse of
discretion. State v. White, 218 S.C. 130, 61 S.E.2d 754 (1950). I find that the sanctions imposed are within the Board's
range of available sanctions and are not unduly excessive or arbitrary.
CONCLUSION
The Board's decision to sanction the Appellant is adequately supported by the reliable, probative and substantial evidence in
the whole record of the case. Further, the sanctions are within the range authorized by the statute. Therefore, the decision
of the Board is hereby AFFIRMED.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
May 9, 2000
1. Simple Assault "is an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of
another." McAninch and Fairey, The Criminal Law of South Carolina (3d ed. 1996). Other than in its findings of fact, the
Board made no mention of the fact that Appellant pleaded guilty to simple assault. Further, at the oral argument of this
case, counsel for the Board indicated that Appellant's guilty plea was not a factor in the Board's decision. |
