South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Consultants in Gastroenterology, P.A., et al vs. DHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioners:
Consultants in Gastroenterology, P.A., et al

Respondents:
South Carolina Department of Health and Environmental Control and Midlands Endoscopy Center, LLC
 
DOCKET NUMBER:
03-ALJ-07-0410-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER GRANTING SUMMARY JUDGMENT

This matter arose on the September 26, 2003 Petition for Administrative Review filed by the Petitioners, Consultants in Gastroenterology, P.A., Columbia Gastroenterology Associates, P.A., Palmetto Gastroenterology, P.A., Midlands Gastroenterology Associations, P.A., and Nguyen D. Thieu, M.D., contesting the decision of the Respondent South Carolina Department of Health and Environmental Control (Department) to approve the Certificate of Need Application of the Respondent Midlands Endoscopy Center, LLC (Respondent Midlands). The Certificate of Need would permit Respondent Midlands to establish a freestanding ambulatory surgery center with two endoscopy rooms restricted to gastroenterology procedures in Lexington County, South Carolina. In order to address the concerns of all of the parties as to the quality of patient care and to resolve the differences among them, the Petitioners and Respondent Midlands reached an agreement in this matter which is attached hereto and incorporated into this Order Granting Summary Judgment.

The Petitioners and Respondent Midlands negotiated in good faith and mutually agreed to the terms of the attached Consent Order of Dismissal with Prejudice, as evidenced by the signature of their respective counsel. However, the Department declined to consent to the agreement between the parties. Consequently, Pursuant to Rule 19 of the Administrative Law Court and SCRCP 56, the Petitioners moved this Court for an order of summary judgment dismissing the present action pursuant to the terms of the attached Consent Order of Dismissal with Prejudice.

Rule 68 of the Rules of Procedure for the Administrative Law Court provides that “[t]he South Carolina Rules of Civil Procedure may, where practicable, be applied in proceedings before the Court to resolve questions not addressed by these rules.” SCRCP Rule 56(c) and the accompanying case law set forth that a claimant may bring a motion for summary judgment. Summary judgment is a drastic remedy which should be cautiously invoked so no person will be improperly deprived of a trial of the disputed factual issues. Lanham v. Blue Cross & Blue Shield, 349 S.C. 356, 563 S.E.2d 331 (2002). It is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; Myrtle Beach Hospital, Inc. v. City of Myrtle Beach, 333 S.C. 590, 510 S.E.2d 439 (Ct. App. 1998). I find that, as a result of the agreement among all of the Petitioners and Respondent Midlands, there is no genuine issue as to any material fact remaining to be adjudicated in this action and that the Petitioners and Respondent Midlands are entitled to judgment as a matter of law. Furthermore, though the Department has declined to consent to the agreement between the parties, the Department does consent to the dismissal of this case with prejudice.

Based on the foregoing and the attached Consent Order of Dismissal with Prejudice (with attached Exhibit A), this matter is hereby dismissed with prejudice.

AND IT IS SO ORDERED.


________________________________

Ralph King Anderson, III

Administrative Law Judge


June 15, 2004

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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