South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
John W. Pence, M.D vs. LLR

AGENCY:
South Carolina Department of Labor, Licensing and Regulation

PARTIES:
Appellant:
John W. Pence, M.D

Respondent:
South Carolina Department of Labor, Licensing and Regulation, South Carolina Board of Medical Examiners
 
DOCKET NUMBER:
03-ALJ-11-0519-AP

APPEARANCES:
Charles E. Hill, Esquire
For Appellant

Clifford O. Koon, Esquire
For Respondent
 

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). Footnote 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). Footnote 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


Brown Bldg.

 

 

 

 

 

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