ORDERS:
ORDER
AFFIRMED
This is an appeal of Respondent's August 5, 1998 Order which revoked the Appellant's license to practice medicine in
South Carolina. Counsel presented oral argument on Wednesday, February 9, 2000.
I. FACTUAL BACKGROUND
This action was commenced by the filing of a Formal Complaint on July 7, 1998 with the State Board of Medical Examiners.
The Complaint alleged that Appellant had violated S.C. Code Ann. § 40-47-200(F)(7), (8), (11), (12) (Supp. 1999);
Regulations 81-60 (A), (D), (F) (1976) and Regulations 81-60 (A), (B), (C), (D) (Supp. 1997). The allegations in the
Complaint concerned several patients, but the conduct with Patients D, E and F formed the basis of the Board's decision.
The Complaint charged that Appellant had improper sexual relations with two patients (E and F), and that he prescribed a
controlled substance to another individual (D) in the absence of a physician-patient relationship.
Specifically, the Board determined that the evidence established Patient D sought psychiatric counseling for her daughters in
1996 as a result of Patient D's divorce On April 13, 1996, Appellant's dog bit Patient D's five-year-old son on the face. As
a result, the Appellant prescribed a controlled substance to Patient D for her anxiety.(1)
The Board also found that Appellant treated Patient E from 1985 through approximately 1988 after the patient had
attempted suicide. Patient E was 16 years old at the time the treatment commenced, and the Appellant began making
advances toward her during the course of treatment. Appellant began a sexual relationship with Patient E after she began
seeing another psychiatrist. The Board found Appellant was aware that Patient E was still obtaining psychiatric treatment
during their sexual relationship, and that he asked her to conceal their relationship so that his medical license would not be in
jeopardy.
Concerning Patient F, the Board found that Appellant treated Patient F, her husband, and their children for marriage and
family counseling in 1985. During this counseling, Appellant met with the family on a group and an individual basis.
Appellant began a sexual relationship with Patient F during the course of treatment. Patient F and her husband eventually
divorced. Appellant asked her to conceal their relationship so that his medical license would not be in jeopardy.
The matter came before a panel of the Medical Disciplinary Commission on June 7 and 8, 1999. The Panel issued its
Certified Panel Report on June 21, 1999, finding the Appellant guilty of inappropriate sexual relations with Patients E and F,
as well as prescribing a controlled substance in the absence of a physician-patient relationship with Patient D. The full Board
of Medical Examiners heard this matter at a regularly scheduled meeting on July 20, 1999. The Board issued its Final Order
on August 5, 1999, adopting the Panel's findings and revoking the Appellant's license to practice medicine in South
Carolina.
I. STANDARD OF REVIEW
Jurisdiction on appeal is vested in the Administrative Law Judge Division pursuant to the Administrative Procedures Act
(APA), specifically S.C. Code Ann. §§ 1-23-600(D) (Supp. 1999) and S.C. Code Ann. § 40-47-200(e) (Supp. 1999). On
appeal to the Division, the standard of review is limited to the record presented. An Administrative Law Judge may not
substitute her judgment for that of the agency unless the agency's determination is affected by error of law or is clearly
erroneous in view of the reliable, probative, and substantial evidence in the whole record. S.C. Code Ann. § 1-23-380(A)(6)
(Supp. 1998); Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). 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 supra. 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, supra 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, supra citing Hamm v.
AT&T, 302 S.C. 210, 394 S.E.2d 842 (1994).
The central purpose of this grant of judicial review in the APA is to provide this tribunal with a broad spectrum in reviewing
agency decisions. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1998) expressly provides that an appellate court "may affirm
the decision of an agency or remand the case for further proceedings."
III. STATEMENT OF ISSUES ON APPEAL
A. Did the admission of evidence relating to the Appellant's sexual misconduct with two prior patients constitute an abuse
of discretion?
B. Did the revocation of the Appellant's medical license for sexual misconduct with two prior patients constitute an abuse
of discretion?
C. Were the Appellant's sexual relations with Patients E and F in violation of an established standard of conduct?
IV. ANALYSIS
A. Admission of Sexual Misconduct with Prior Patients
At the hearing in this matter, Appellant timely moved in limine to exclude evidence of the sexual relations that took place
between Appellant and Patients E and F between 1985 and 1988. After extensive argument, the Board denied the motion
and admitted the evidence. The Appellant argues that the admission of evidence concerning the sexual relationships he had
with Patients E and F was an abuse of discretion because the events were too remote in time. The Appellant argues that, had
the case been brought in Circuit Court, it would have been barred by the statute of limitations. Appellant does not cite any
statutory or case law for this proposition.
The State of South Carolina has no statute of limitations for disciplinary actions before professional licensing boards, so the
Appellant cannot claim that the Board's actions were barred. Appellant focuses on the fact that the lapsed time between the
events in question and the Board hearing meant that his treatment records for were lost or destroyed, which hindered his
defense. The allegations in the Complaint, however, concern inappropriate sexual relations with those patients, a topic that
would presumably not have been contained within their medical records. Although Patients E and F could not remember
every detail of the relations, such as specific times and dates, the essential aspects of the relationships were established by
substantial evidence. Appellant admitted that the sexual relations took place as alleged.
Because the allegations concerned matters which would not have been in medical records, the passage of time (and
subsequent destruction of the Appellant's medical records concerning these patients) did not hinder his defense. Because he
admitted the conduct, the only issue before the Board was whether Appellant's sexual relations with two patients constituted
unethical conduct, not whether the conduct occurred. The Board did not abuse its discretion in admitting evidence of the
Appellant's sexual relations with patients between 1985 and 1988.
B. Abuse of Discretion in Revocation of the Appellant's License
Appellant further argues that the Board abused its discretion in revoking his license to practice medicine based on sexual
relationships that occurred between 1985 and 1988. The Appellant argues that the lapse of time between the sexual relations
and the sanction is unreasonable and therefore constitutes an abuse of discretion. The Appellant cites Wilson v. State Board
of Medical Examiners, 305 S.C. 194, 406, S.E.2d 345 (1991) in support of this proposition.
In Wilson, the misconduct occurred in 1982 and 1983, but the sanction was not imposed until 1988. Wilson is easily
distinguishable from the present case. The Supreme Court remanded that case to the Board in light of the fact that six years
had elapsed since the commencement of the proceedings in front of the Board. In the present case, the Board instituted
proceedings against the Appellant in a reasonable amount of time after discovery of the misconduct. Further, the Court in
Wilson addressed the issue of the passage of time between the events and the sanction only in dicta as guidance to the Board;
the Board's holding was reversed because of a variance between the charges and the findings.
The delay in the present case between the time of the events and the imposition of the sanction was merely a delay in the
discovery of the Appellant's conduct. Once the conduct was discovered by the Board, the case was brought to a hearing
within a reasonable time. Unlike the situation in Wilson, no error of the Board caused a delay in the proceedings. Once the
Board found that misconduct had occurred, it was not required by statute to find further justification for the imposition of
the sanction of revocation. See Gale v. State Board of Medical Examiners, 282 S.C. 474, 320 S.E.2d 35 (Ct. App. 1984).
S.C. Code Ann. §40-47-200(F)(7) (Supp. 1999) defines "'misconduct' which constitutes grounds for revocation, suspension,
or restriction of a license" upon a finding that the licensee "has violated the principles of ethics as adopted by the State Board
of Medical Examiners and published in its regulations." The Board is well within the scope of disciplinary discretion given to
it by the law. Substantial evidence exists that the sexual misconduct with the patients occurred. The Appellant's contention
that the length of time between the events in question and the imposition of the sanction is unreasonable is without merit.
Moreover, the Board also found that Appellant had prescribed a controlled substance in the absence of an established
physician-patient relationship. The Board found that this conduct:
violated S.C. Code Ann. §§40-47-200(F)(7), in that he has violated the following revised principles of Medical Ethics
adopted by the Board in his treatment of the referenced patients on or after June 26, 1992:
(A) Regulation 81-60(A), in that Respondent did not provide competent medical service with compassion and respect for
human dignity, as evidenced by Respondent's inappropriate prescribing of a controlled substance to Patient D in the
absence of an established physician-patient relationship and without valid medical justification, as reflected by the
Respondent's medical records. (B) Regulation 81-60
(B), in that Respondent failed to deal honestly with patients and colleagues, as evidenced by Respondent's inappropriate
prescribing of a controlled substance to Patient D in the absence of an established physician-patient relationship and
without valid medical justification, as reflected by the Respondent's medical records.
(C) Regulation 81-60(C), in that Respondent has failed to respect the law, as evidenced by Respondent's inappropriate
prescribing of a controlled substance to Patient D in the absence of an established physician-patient relationship and
without valid medical justification, as reflected by the Respondent's medical records.
(D) Regulation 81-60(D), in that Respondent has failed to respect the rights of patients, of colleagues, and of other health
professionals, as evidenced by Respondent's inappropriate prescribing of a controlled substance to Patient D in the
absence of an established physician-patient relationship and without valid medical justification, as reflected by the
Respondent's medical records.
This conduct alone would justify the Board's revoking Appellant's license. In his brief, Appellant did not challenge the
Board's finding that prescribing a controlled substance for someone outside a physician-patient relationship violated § 40-7-200, nor did he challenge the Board's authority to impose a sanction for that violation. Because that issue was not raised by
Appellant, it is deemed abandoned. SCALJD Rule 36(B).
As to lack of justification for the sanction imposed, "the Board is not required by sections 40-47-10 through 40-47-260 to
invoke certain sanctions for certain violations. A showing of any misconduct listed in Section 40-47-200 may result in
license revocation, suspension, restriction or limitation." Gale v. State Bd. Of Medical Examiners, 282 S.C. 474, 320 S.E.2d
35 (Ct. App. 1984). The revocation of the Appellant's license to practice medicine in South Carolina by the Board was not
an abuse of discretion
C. Failure to Establish a Standard of Conduct
The Appellant asserts that the Board failed to establish the standard of care he violated with regard to Patient E. The
Appellant argues that he did not violate any applicable standard of care because he had terminated the physician-patient
relationship prior to entering into sexual relations. Assuming, arguendo, that this argument has merit, the Appellant fails to
argue that his sexual relations with Patient F, while she was a patient, did not violate an established standard of care.The
South Carolina Supreme Court has held that the rules and statutory provisions are "sufficiently definite to provide notice that
a physician must conform his conduct to those standards of competence acceptable to within the medical community of this
State." Burdge v. State Bd. Of Medical Examiners, 304 S.C. 42, 403 S.E.2d 114 (1991) citing Toussaint v. State Bd. Of
Medical Examiners, 303 S.C. 316, 400 S.E.2d 488 (1991). Sufficient evidence existed for the Board to revoke the
Appellant's license to practice medicine in South Carolina based on the Appellant's conduct with Patient F pursuant to S.C.
Code Ann. § 40-47-200 (Supp. 1999)
V. ORDER
Revocation of the Appellant's medical license is a sanction within the Board's scope of authority. The Appellant has failed to
meet the burden of establishing grounds for reversal of the Board's decision. Therefore, the Board's Order revoking the
Appellant's medical license, dated August 5, 1998, is AFFIRMED.
IT IS SO ORDERED.
_ ____________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
May 26, 2000
Columbia, South Carolina.
1. Although the Board referred to her as "Patient D," the record is clear that she was never in a physician-patient
relationship with Appellant. |
