ORDERS:
IV.Did the Board err in denying Appellant’s request for an additional continuance of the disciplinary panel hearing to allow him to obtain legal representation?
Appellant was not entitled to an additional continuance of his disciplinary hearing. And, any
alleged prejudice resulting from the denial of his request for the continuance is self-inflicted and not
subject to remedy upon appeal. See State v. Babb, 299 S.C. 451, 385 S.E.2d 827 (1989) (noting that
a party cannot complain of an error which his own conduct has induced and finding that, where the
shortage of time to prepare a defense was not the fault of the trial court or the prosecution, but rather
was the fault of the defendant in failing to act, the denial of a continuance was proper); State v.
Lambert, 276 S.C. 398, 279 S.E.2d 364 (1981) (holding that a party cannot complain of an error he
voluntarily committed at trial). The granting or denial of a continuance is within the sound
discretion of the trial judge and will not be disturbed on appeal absent a showing of an abuse of
discretion. S.C. Dep’t of Soc. Servs. v. Broome, 307 S.C. 48, 413 S.E.2d 835 (1992); Wayne Smith
Constr. Co. v. Wolman, Duberstein, & Thompson, 294 S.C. 140, 363 S.E.2d 115 (Ct. App. 1987).
No such showing of abuse has been made here.
The following is a procedural chronology of the instant matter while it was before the Board:
•The matter came before the Board on complaints made on July 28, 2000, and January
10, 2001.
•The panel of the Medical Disciplinary Commission set a hearing for December 19,
2001, after two prior continuances. One continuance was granted because Appellant’s expert
witness had a scheduling conflict; the second was granted because Appellant’s attorney had a
conflict.
•A Final Order Hearing was set before the Board on May 7, 2002, after the
Disciplinary Commission found Appellant guilty of misconduct.
•A continuance was granted of the May 7, 2002 hearing at the request of Appellant’s
counsel, who had a second honeymoon with his wife scheduled in Las Vegas.
•The matter was rescheduled for July 29, 2002. This hearing was continued at the
request of Appellant’s counsel because he had left the private practice of law. With the admonition
that no further continuances would be granted, the Board rescheduled the matter for October 28,
2002.
•At the October hearing, Appellant appeared with a new attorney who moved that the
matter be remanded to the disciplinary panel for the taking of additional testimony. The motion was
granted and the matter was remanded to a second disciplinary panel for the taking of additional
testimony. (R. at 8.)
•A hearing was set before the second panel for April 21, 2003. This hearing was
continued at the request of Appellant’s counsel who had a conflict in his schedule.
•By notice of June 3, 2003, a hearing was set before the second panel for September
10, 2003.
•On June 5, 2003, Appellant’s counsel advised Appellant of the September hearing,
requested funds with which to retain an expert witness, and further advised Appellant that he
believed no further continuances would be granted. (R. at 47.)
•On June 23, 2003, counsel again wrote Appellant reminding him of the September
hearing and of the urgency of obtaining funds with which to retain an expert witness. Counsel also
notified Appellant that he would withdraw from the case if Appellant did not provide the necessary
funds to pursue the matter. (R. at 48.)
•On July 1, 2003, counsel again wrote Appellant to inform him that he was filing a
motion to withdraw as counsel because of Appellant’s failure to pay attorney’s fees and provide
funds to retain an expert witness. (R. at 51.)
•On July 7, 2003, counsel filed a motion with the Board to be relieved as counsel. The
motion was granted and Appellant was noticed of the same. (R. at 55.)
•On July 24, 2003, opposing counsel wrote Appellant and advised him of the pending
September hearing and that he would vigorously oppose a continuance. (R. at 56.)
•On July 24, 2003, Appellant wrote the Board and requested a continuance because
of the withdrawal of his counsel. (R. at 58.)
•On August 7, 2003, Appellant was notified that his motion for a continuance was
denied. (R. at 59.)
•On August 18, 2003, Appellant’s third attorney moved for a continuance as he was
attempting to convince Appellant’s second attorney to resume representation of Appellant. (R. at
63-65.)
•On August 26, 2003, the motion for a continuance was denied.
•On August 29, 2003, Appellant wrote the Board requesting a continuance, stating that
his third counsel had withdrawn from representation. (R. at 69-70.)
•On September 3, 2003, the motion for a continuance was denied.
•On September 10, 2003, the second disciplinary panel heard the matter.
•On November 5, 2003, the full Board heard the matter and issued a Final Order on
November 30, 2003.
Clearly, the Board was long-suffering and very generous in granting numerous continuances
to Appellant in this matter. No abuse of discretion is evident in the record. Put simply, “[t]here is
a limit beyond which the court should allow a litigant to consume the time of the court . . . .”
Georganne Apparel, Inc. v. Todd, 303 S.C. 87, 92, 399 S.E.2d 16, 19 (Ct. App. 1990). Such a limit
was, without question, reached in the instant case.
Further, Appellant’s assertions of resultant prejudice are unfounded. Appellant argues that
the denial of the continuance prejudiced him because it forced him to participate in the evidentiary
hearing without legal counsel. The record reveals that Appellant had ample opportunity to secure
and retain counsel. In fact, his second attorney implored him to provide the necessary funding to
secure continued representation and an expert witness. Further, upon the withdrawal of his second
attorney, opposing counsel and the Board strongly advised Appellant to timely secure adequate legal
representation. Nevertheless, Appellant, a sophisticated medical professional, who is well-aware of
the risks inherent in self-representation, failed to obtain new counsel in a timely fashion prior to his
second disciplinary panel hearing. Therefore, any prejudice Appellant suffered as a result of failing
to obtain an attorney is solely attributable to Appellant’s own conduct, and, as such, does not provide
him with a basis to attack the Board’s proceedings. Cf. State v. Gill, 355 S.C. 234, 584 S.E.2d 432
(Ct. App. 2003) (holding that, even under the higher standards of the Sixth Amendment right to
counsel, a criminal defendant had waived his right to counsel by failing to obtain legal representation
despite repeated warnings and offers of assistance from the trial judge).
Like the defendant in Gill,
it is equally Appellant’s right to not seek legal representation. The latter course is what he chose.
Appellant also argues that there were several instances of inadmissible hearsay evidence
admitted at the hearing and that he was prejudiced by his inability to secure the testimony of key
defense witnesses. Again, Appellant is arguing that he should have had an attorney present at the
hearing to object to the hearsay evidence and secure the presence of defense witnesses. However,
as discussed above, Appellant had ample opportunity to secure legal representation, but failed to do
so. When the results of the proceedings turn out unfavorably, he cannot now shed himself of the
responsibility for not securing an attorney in a timely fashion. Nor can he now credibly argue his
lack of familiarity with evidentiary proceedings. See Goodson v. Am. Banker’s Ins. Co. of Fla., 295
S.C. 400, 368 S.E.2d 687 (Ct. App. 1988) (noting that a court will not hold a layman acting in a legal
matter without an attorney to any lesser standard than is applied to an attorney).
V.Did the Board err in concluding that Appellant failed to properly treat Patient Ambrose’s bacterial meningitis because the evidence demonstrated that the treatment was effective.
The Board did not err in concluding that Appellant’s treatment of Patient Ambrose fell below
the applicable standard of care. The record contains substantial expert testimony that Ampicillin and
Zinacef were not the preferred drugs for the treatment of bacterial meningitis at the time Appellant
prescribed these drugs for the patient in question. Further, the record is amply clear that the standard
of care called for a dosage of Ampicillin of 400 milligrams per kilogram as opposed to the 120
milligrams prescribed by Appellant, and that the recommended dosage of Zinacef in the instant case
was 150 milligrams per kilogram, rather than the 60 milligrams prescribed by Appellant. There is
equally substantial evidence in the record establishing that the prevailing standard of care
recommended that these drugs be administered for fourteen days, rather than Appellant’s
prescriptions for Ampicillin for ten days and for Zinacef for three days. This care did not meet the
prevailing standard of care as established by the experts who testified in this matter. See Toussaint,
303 S.C. 316, 400 S.E.2d 488. Moreover, it is not necessary that actual harm result to a patient from
substandard care in order for the physician’s conduct to be found to be misconduct. See, e.g.,
Morfesis v. Sobol, 567 N.Y.S.2d 954 (1991) (holding that, in sanctioning a physician in disciplinary
proceedings, it is unnecessary to establish actual harm to an individual patient as the applicable
disciplinary statute was enacted to protect the welfare of the general public who deal with state-licensed practitioners, not merely to redress injuries); cf. Toussaint, 303 S.C. 316, 400 S.E.2d 488
(finding that the statute providing that a lack of professional competence constitutes misconduct for
which a physician may be disciplined was sufficiently definite to provide notice to physicians that
they must conform their conduct to those standards of competence acceptable within the medical
community of the state). Hence, there is substantial evidence in the record to support the Board’s
finding that Appellant was guilty of misconduct in his treatment of Patient Ambrose.
ORDER
For the reasons set forth above,
IT IS THEREFORE ORDERED that the Board’s Final Order of November 30, 2003,
publicly reprimanding Appellant for misconduct under Section 40-47-200(F)(7), (8) and Regulation
81-60(A), (D), is AFFIRMED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
April 29, 2004
Columbia, South Carolina IV. Did the Board err in denying Appellant’s request for an additional continuance of the disciplinary panel hearing to allow him to obtain legal representation?
Appellant was not entitled to an additional continuance of his disciplinary hearing. And, any
alleged prejudice resulting from the denial of his request for the continuance is self-inflicted and not
subject to remedy upon appeal. See State v. Babb, 299 S.C. 451, 385 S.E.2d 827 (1989) (noting that
a party cannot complain of an error which his own conduct has induced and finding that, where the
shortage of time to prepare a defense was not the fault of the trial court or the prosecution, but rather
was the fault of the defendant in failing to act, the denial of a continuance was proper); State v.
Lambert, 276 S.C. 398, 279 S.E.2d 364 (1981) (holding that a party cannot complain of an error he
voluntarily committed at trial). The granting or denial of a continuance is within the sound
discretion of the trial judge and will not be disturbed on appeal absent a showing of an abuse of
discretion. S.C. Dep’t of Soc. Servs. v. Broome, 307 S.C. 48, 413 S.E.2d 835 (1992); Wayne Smith
Constr. Co. v. Wolman, Duberstein, & Thompson, 294 S.C. 140, 363 S.E.2d 115 (Ct. App. 1987).
No such showing of abuse has been made here.
The following is a procedural chronology of the instant matter while it was before the Board:
• The matter came before the Board on complaints made on July 28, 2000, and January
10, 2001.
• The panel of the Medical Disciplinary Commission set a hearing for December 19,
2001, after two prior continuances. One continuance was granted because Appellant’s expert
witness had a scheduling conflict; the second was granted because Appellant’s attorney had a
conflict.
• A Final Order Hearing was set before the Board on May 7, 2002, after the
Disciplinary Commission found Appellant guilty of misconduct.
• A continuance was granted of the May 7, 2002 hearing at the request of Appellant’s
counsel, who had a second honeymoon with his wife scheduled in Las Vegas.
• The matter was rescheduled for July 29, 2002. This hearing was continued at the
request of Appellant’s counsel because he had left the private practice of law. With the admonition
that no further continuances would be granted, the Board rescheduled the matter for October 28,
2002.
• At the October hearing, Appellant appeared with a new attorney who moved that the
matter be remanded to the disciplinary panel for the taking of additional testimony. The motion was
granted and the matter was remanded to a second disciplinary panel for the taking of additional
testimony. (R. at 8.)
• A hearing was set before the second panel for April 21, 2003. This hearing was
continued at the request of Appellant’s counsel who had a conflict in his schedule.
• By notice of June 3, 2003, a hearing was set before the second panel for September
10, 2003.
• On June 5, 2003, Appellant’s counsel advised Appellant of the September hearing,
requested funds with which to retain an expert witness, and further advised Appellant that he
believed no further continuances would be granted. (R. at 47.)
• On June 23, 2003, counsel again wrote Appellant reminding him of the September
hearing and of the urgency of obtaining funds with which to retain an expert witness. Counsel also
notified Appellant that he would withdraw from the case if Appellant did not provide the necessary
funds to pursue the matter. (R. at 48.)
• On July 1, 2003, counsel again wrote Appellant to inform him that he was filing a
motion to withdraw as counsel because of Appellant’s failure to pay attorney’s fees and provide
funds to retain an expert witness. (R. at 51.)
• On July 7, 2003, counsel filed a motion with the Board to be relieved as counsel. The
motion was granted and Appellant was noticed of the same. (R. at 55.)
• On July 24, 2003, opposing counsel wrote Appellant and advised him of the pending
September hearing and that he would vigorously oppose a continuance. (R. at 56.)
• On July 24, 2003, Appellant wrote the Board and requested a continuance because
of the withdrawal of his counsel. (R. at 58.)
• On August 7, 2003, Appellant was notified that his motion for a continuance was
denied. (R. at 59.)
• On August 18, 2003, Appellant’s third attorney moved for a continuance as he was
attempting to convince Appellant’s second attorney to resume representation of Appellant. (R. at
63-65.)
• On August 26, 2003, the motion for a continuance was denied.
• On August 29, 2003, Appellant wrote the Board requesting a continuance, stating that
his third counsel had withdrawn from representation. (R. at 69-70.)
• On September 3, 2003, the motion for a continuance was denied.
• On September 10, 2003, the second disciplinary panel heard the matter.
• On November 5, 2003, the full Board heard the matter and issued a Final Order on
November 30, 2003.
Clearly, the Board was long-suffering and very generous in granting numerous continuances
to Appellant in this matter. No abuse of discretion is evident in the record. Put simply, “[t]here is
a limit beyond which the court should allow a litigant to consume the time of the court . . . .”
Georganne Apparel, Inc. v. Todd, 303 S.C. 87, 92, 399 S.E.2d 16, 19 (Ct. App. 1990). Such a limit
was, without question, reached in the instant case.
Further, Appellant’s assertions of resultant prejudice are unfounded. Appellant argues that
the denial of the continuance prejudiced him because it forced him to participate in the evidentiary
hearing without legal counsel. The record reveals that Appellant had ample opportunity to secure
and retain counsel. In fact, his second attorney implored him to provide the necessary funding to
secure continued representation and an expert witness. Further, upon the withdrawal of his second
attorney, opposing counsel and the Board strongly advised Appellant to timely secure adequate legal
representation. Nevertheless, Appellant, a sophisticated medical professional, who is well-aware of
the risks inherent in self-representation, failed to obtain new counsel in a timely fashion prior to his
second disciplinary panel hearing. Therefore, any prejudice Appellant suffered as a result of failing
to obtain an attorney is solely attributable to Appellant’s own conduct, and, as such, does not provide
him with a basis to attack the Board’s proceedings. Cf. State v. Gill, 355 S.C. 234, 584 S.E.2d 432
(Ct. App. 2003) (holding that, even under the higher standards of the Sixth Amendment right to
counsel, a criminal defendant had waived his right to counsel by failing to obtain legal representation
despite repeated warnings and offers of assistance from the trial judge).
Like the defendant in Gill,
it is equally Appellant’s right to not seek legal representation. The latter course is what he chose.
Appellant also argues that there were several instances of inadmissible hearsay evidence
admitted at the hearing and that he was prejudiced by his inability to secure the testimony of key
defense witnesses. Again, Appellant is arguing that he should have had an attorney present at the
hearing to object to the hearsay evidence and secure the presence of defense witnesses. However,
as discussed above, Appellant had ample opportunity to secure legal representation, but failed to do
so. When the results of the proceedings turn out unfavorably, he cannot now shed himself of the
responsibility for not securing an attorney in a timely fashion. Nor can he now credibly argue his
lack of familiarity with evidentiary proceedings. See Goodson v. Am. Banker’s Ins. Co. of Fla., 295
S.C. 400, 368 S.E.2d 687 (Ct. App. 1988) (noting that a court will not hold a layman acting in a legal
matter without an attorney to any lesser standard than is applied to an attorney).
V. Did the Board err in concluding that Appellant failed to properly treat Patient Ambrose’s bacterial meningitis because the evidence demonstrated that the treatment was effective.
The Board did not err in concluding that Appellant’s treatment of Patient Ambrose fell below
the applicable standard of care. The record contains substantial expert testimony that Ampicillin and
Zinacef were not the preferred drugs for the treatment of bacterial meningitis at the time Appellant
prescribed these drugs for the patient in question. Further, the record is amply clear that the standard
of care called for a dosage of Ampicillin of 400 milligrams per kilogram as opposed to the 120
milligrams prescribed by Appellant, and that the recommended dosage of Zinacef in the instant case
was 150 milligrams per kilogram, rather than the 60 milligrams prescribed by Appellant. There is
equally substantial evidence in the record establishing that the prevailing standard of care
recommended that these drugs be administered for fourteen days, rather than Appellant’s
prescriptions for Ampicillin for ten days and for Zinacef for three days. This care did not meet the
prevailing standard of care as established by the experts who testified in this matter. See Toussaint,
303 S.C. 316, 400 S.E.2d 488. Moreover, it is not necessary that actual harm result to a patient from
substandard care in order for the physician’s conduct to be found to be misconduct. See, e.g.,
Morfesis v. Sobol, 567 N.Y.S.2d 954 (1991) (holding that, in sanctioning a physician in disciplinary
proceedings, it is unnecessary to establish actual harm to an individual patient as the applicable
disciplinary statute was enacted to protect the welfare of the general public who deal with state-licensed practitioners, not merely to redress injuries); cf. Toussaint, 303 S.C. 316, 400 S.E.2d 488
(finding that the statute providing that a lack of professional competence constitutes misconduct for
which a physician may be disciplined was sufficiently definite to provide notice to physicians that
they must conform their conduct to those standards of competence acceptable within the medical
community of the state). Hence, there is substantial evidence in the record to support the Board’s
finding that Appellant was guilty of misconduct in his treatment of Patient Ambrose.
ORDER
For the reasons set forth above,
IT IS THEREFORE ORDERED that the Board’s Final Order of November 30, 2003,
publicly reprimanding Appellant for misconduct under Section 40-47-200(F)(7), (8) and Regulation
81-60(A), (D), is AFFIRMED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
April 29, 2004
Columbia, South Carolina |