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 |