Wednesday, December 13, 2017

SC Administrative Law Court Decisions

CAPTION:
SCDLLR vs. Anonymous Physician

AGENCY:
South Carolina Department of Labor, Licensing and Regulation

PARTIES:
Petitioner:
South Carolina Department of Labor, Licensing and Regulation, State Board of
Medical Examiners

Respondent:
Anonymous Physician
 
DOCKET NUMBER:
04-ALJ-11-0329-IJ

APPEARANCES:
Kenneth Woodington, Esquire and Lynne W. Rogers, Esquire, for Petitioner

James Edward Bradley, Esquire and S. Jahue Moore, Esquire, for Respondent
 

ORDERS:

Order Denying Motion

PROCEDURAL HISTORY

On Thursday, September 30, 2004, the Petitioner, South Carolina Department of Labor, Licensing, and Regulation, State Board of Medical Examiners [“the Board”], filed an action for Injunctive Relief pursuant to S. C. Ann. §40-1-210, seeking Suspension of the Respondent Anonymous Physician’s [“Respondent”] License to Practice Medicine. On Monday, October 4, 2004, several days after the injunction motion was filed, the Board filed and served a Formal Complaint against the Respondent, alleging essentially the same grounds as are set forth in the present motion. On October 18, 2004, the Board served notice on the Respondent that a Panel Hearing, i.e., a fact-finding hearing in the disciplinary matter, has been scheduled. A hearing on the injunctive relief was held before me on November 1, 8, and 15, 2004.

At that hearing, six witnesses for the Board testified, including expert testimony from (1) an oncologist/hematologist, (2) the state's chief epidemiologist, (3) the Richland County forensic pathologist, and (4) an expert physician in integrated medicine; fact testimony was given by the Richland County coroner and the widow of one of the patients. Numerous exhibits were admitted into evidence, and counsel for the physician conducted extensive cross-examination of each witness and the Board’s exhibits.

The physician presented testimony from 20 fact witness and 1 expert witness, a physician expert in alternative medicine, along with one adverse witness, the investigator for the medical board. The lay witnesses each testified that they were his patients. Some had received hydrogen peroxide infusion therapy, and all were satisfied with the quality of their medical care. Each of the fact witnesses supported the physician's practice and his continued practice of medicine. Numerous exhibits were introduced.

After reviewing all the testimony during the three days of hearings, all exhibits, and the applicable constitutional, statutory, and regulatory provisions, I find that the initial Motion to Suspend Respondent’s License was filed without proper authorization by the Board, and dismiss this action for Injunctive relief. Footnote

FINDINGS OF FACT

Notice of the time, place and nature of the hearing were provided to all parties prior to the hearing on this motion.

As set forth in the Petition filed by the Board with this Court, the Board alleged several specific reasons why Respondent’s current practices compel an injunction suspending his medical license:

1.He infused a patient identified as Patient 1 with hydrogen peroxide as a purported therapy for her multiple sclerosis, a therapy which is almost universally regarded as being outside the proper standard of care.

2.When this patient presented to Respondent two days after the peroxide infusion, she showed numerous symptoms of bleeding; this patient died several days later as a result of severe bleeding.

3.Respondent prescribed testosterone cream for a patient, Patient 2, an individual suffering from advanced stage, terminal prostate cancer. This substance was contraindicated for prostate patients. This patient died several weeks after using the testosterone cream.


4.In addition, Respondent also instructed Patient 2 in the use of Laetrile, a substance not approved by the FDA as a cancer treatment. Patient 2 apparently obtained the Laetrile on his own from the internet.

5. Respondent also diagnosed both Patient 2 and his wife with Lyme disease and provided treatment for it, although subsequent blood tests indicated that neither of them had ever had Lyme disease. There is no indication that Respondent reported these or any other cases of alleged Lyme disease to DHEC, as required by law (S.C. Code Ann. § 44-29-10, et seq.).

In addition to denying the specific allegations of the Medical Board, the Respondent alleged that the Board failed to follow its own statutory and regulatory requirements. Specifically, the Respondent argued that by filing this current action for injunctive relief almost simultaneously (four days later, but only 2 business days) with the disciplinary action, the Board is maintaining simultaneous actions between the same parties in violation of SCRCP 12(b)8. In addition, the Respondent elicited testimony that “the Board,” as required by §40-47-210 SC Code Ann. did not authorize the action to suspend the license of the physician. Even though the Petitioner submitted copies of the minutes delegating the authority to file complaints first to the President of the Board, then from the President to the Administrator, I find that this delegation is unauthorized by the statutes discussed below. In addition, I find that the minutes produced by Petitioner do not include any authorization for the President, the Administrator or the Board to institute this injunctive action.

CONCLUSIONS OF LAW

A. Property Rights

The license to practice medicine in South Carolina is a valuable property right protected by the Constitution, statutes and regulations. See e.g. Dantzler v. Callison, 230 S.C. 75, 94 S.E.2d 177 (1956); Ezell v. Ritholz, 188 S.C. 39, 198 S.E. 419 (1938); Hawker v. People of New York, 170 U.S. 189 (1898); S.C. Code Ann. § 40-1-10 (2001).

The South Carolina Supreme Court in 1990 held

The fourteenth amendment Due Process Clause requires procedural due process be afforded an individual deprived of a property or liberty interest by the State. Board of Regents v. Roth, 408 U.S. 564 (1972); see also S.C. Const., Art I, § 22. The right to hold specific employment and the right to follow a chosen profession free from unreasonable governmental interference come within the liberty and property interests protected by the Due Process Clause. Greene v. McElroy, 360 S.S. 474 (1959). The liberty interest at stake is the individual’s freedom to practice his or her chosen profession; the property interest is the specific employment. Id. When the State seeks to revoke or deny a professional license, these interest [sic] are implicated and procedural due process requirements must be met. Id.; Schware v. Board of Bar Examiners, 353 U.S. 232 (1957). Brown v. South Carolina State Board of Education, 301 S.C. 326 at 328; 391 S.E. 2d 866 (1990).

Article I §22 of the SC Constitution provides, “No person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard; nor shall he be subject to the same person for both prosecution and adjudication; nor shall he be deprived of liberty or property unless by a mode of procedure prescribed by the General Assembly, and he shall have in all such instances the right to judicial review.” (Emphasis added).

S.C. Code Ann. § 1-23-380 (A)(6) (c) gives this court the authority to reverse the decision of an agency if the decision is “made upon unlawful procedure.”

B. Statutory and Regulatory Scheme

In 1996, in Act No. 453, the Legislature enacted a comprehensive statutory scheme for regulating the 51 Licensing Boards which come under the umbrella of the Department of Labor, Licensing, and Regulation. As a threshold matter, § 40-1-10(A) provides

The right of a person to engage in a lawful profession, trade, or

occupation of choice is clearly protected by both the Constitution

of the United States and the Constitution of the State of South

Carolina. The State cannot abridge this right except as a reasonable

exercise of its police powers when it is clearly found that abridgement

is necessary for the preservation of the health, safety, and welfare of

the public. § 40-1-10(A) SC Code Ann. (2001).

Each of the licensing boards under the LLR umbrella organization is authorized to institute a civil proceeding before the Administrative Law Court pursuant to §40-1-210 “..for injunctive relief against a person violating this article, a regulation promulgated under this article, or an order of the board. For each violation, the administrative law judge may impose a fine of no more than ten thousand dollars.” §40-1-210 SC Code Ann. (2001).

The forgoing two statutory provisions, found in Chapter 1 of Article 40 of the S. C. Code annotated, apply to all licensing boards. However, Legislature has also enacted specific Legislation and Regulations governing disciplinary procedures for the Board of Medical Examiners. §§ 40-47-5, et seq. SC Code Ann. (2001). Specifically, § 40-47-210 SC Code Ann. (2001) provides that

“[w]henever the board has reason to believe that any person is violating or intends to violate any provision of this article, it may, in addition to all other remedies, order such person to immediately desist and refrain from such conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from such conduct. An administrative law judge may issue a temporary injunction ex parte, and upon notice and full hearing may issue any other order in the matter it deems proper.” (Emphasis added.)

Also, SC Code Ann. Reg. 81-24, which specifically deals with the Medical Board, states that “[t]he Board may apply to an administrative law judge, as provided under Article 5 of Chapter 23 of Title 1, for an injunction restraining the person from such conduct. An administrative law judge may issue a temporary injunction ex parte, and upon notice and full hearing may issue any other order in the matter it deems proper.” (Emphasis added.)

The legislature has enacted a comprehensive statutory and regulatory scheme for disciplining physicians licensed to practice medicine in South Carolina. Not only does the specific language of Chapter 47 of title 40 control over the broad general language of Chapter 1 [the “engine” chapter], see, Wilder v. South Carolina State Highway Department, 228 S.C. 448, 454, 90 S.E. 635, 638 (1955), but the later-enacted Medical Board regulations [effective June 26, 1998] control over the earlier provisions of either chapter of Title 40. Feldman v. South Carolina Tax Commission, 203 SC 49, 54, 26 S.E.2d 22, 24 (1943).

The Panel is required to hear the case, make findings of fact and conclusions, and make a recommendation regarding sanction to the Board.[R. 81-16]. The Board then holds an appellate hearing and issues a Final Order [R. 81-17 and -18]. If the Board’s Final Order is appealed, this Court is required by statute to review the case in an appellate capacity; i.e., this Court’s review would be limited to whether there was substantial evidence in the record before the Board to uphold its Final Order. [ R. 81-19]. Section 1-23-600 (D) provides;

An administrative law judge also shall preside over all hearings of appeals from final decisions of contested cases before professional and occupational licensing boards or commissions within the Department of Labor, licensing, and Regulation pursuant to Section 1-23-380. (Emphasis added.)

The Board’s practice of filing a Motion for Preliminary Injunction in this Court, even had it been properly authorized by the Board Footnote , impermissibly delegates to this Court the Medical Board’s duty to serve as the fact-finder and impose sanctions on licensed physicians. The Board chose this manner of dealing with a complaint rather than issuing a “cease and desist” order [R.81-24] pending final resolution of the matter by the full Board. Not only would that procedure expedite the Board’s ultimate resolution of the matter, it would ensure that the Administrative Law Court does not substitute its judgment for that of the Board by being forced to be the finder of fact after what amounts to a full hearing on the merits.

The Board chose not to bring this action under its specific statutes and regulations. Instead, it chose the general remedy provided in SC Code Ann. § 40-1-210, which allows an LLR licensing board to “institute a civil action through the Administrative Law Judge Division . . . for injunctive relief against a person violating this article. . . .” The Board, however, is selective in its choice of statutes to follow.

SC Code Ann. § 40-1-120 states

(A) Upon a determination by a board that one or more of the grounds for discipline exists, in addition to the actions the board is authorized to take pursuant to its respective licensing act, the board may: . . . (3) place a licensee on probation or restrict or suspend the individual’s license for a definite or indefinite time . . . . (B) A decision by a board to discipline a licensee as authorized under this section must be by a majority vote of the total membership of the board serving a the time the vote is taken. (Emphasis added.)

In addition, SC Code Ann. § 40-1-90 (A) requires “The results of an investigation must be presented to the board. If from these results it appears that a violation has occurred or that a licensee has become unfit to practice the profession or occupation, the board, in accordance with the Administrative Procedures Act, may take disciplinary action authorized by Section 40-1-120 [above]. No disciplinary action may be taken unless the matter is presented to and voted upon by the board.”

The state medical board and LLR must abide by their own statutes and may not act arbitrarily in failing to follow their own guidelines and requirements. See e.g., 330 Concord Street Neighborhood Association v. Campsen, 309 S.C. 514, 424 S.E. 2d 538, 540 (S.C. App. 1992); Triska v. Department of Health and Environmental Control, 292 S.C. 190, 355 S.E. 2d 531, 533 (S.C. 1987); S.C. Code Section 1-23-380(A)(6)(f). “A decision is arbitrary if it is without a rational basis, is based alone on one’s will and not upon any course of reasoning and exercise of judgement, is made at pleasure, without adequate determining principles, or is governed by no fixed rules or standards.” Deese v. South Carolina State Board of Dentistry, 332 S.E.2d 539 at 541, 286 S.C. 182 (S.C.App. 1985). A similar situation was addressed in the recent case of Southeast Resource Recovery, Inc., et al. v. SC DHEC, Sup. Ct. Op. 25806 (April 19, 2004). In Southeast Recovery, the Court noted,

The South Carolina Solid Waste Policy and Management Act, S.C. Code Ann. § 44-96-10, et seq. (2002) (the SWPMA), requires a person obtain a permit from DHEC before operating a solid waste management facility. S.C. Code Ann. § 44-96-290(A). Permits are issued based upon local need for the requested facility and the consistency of the proposed facility with local ordinances. S.C. Code Ann. § 44-96-290(E). DHEC cannot issue a permit unless the proposed facility is consistent with “local zoning, land use, and other applicable ordinances.” The SWPMA does not specify procedures for DHEC to follow in making need and consistency determinations.

DHEC’s practice has been to delegate to the counties the authority to determine consistency through the counties’ issuance of LOCs. [Letter of Consistency] We conclude this delegation of authority is impermissible. S.C. Code Ann. § 44-96-290(F) does not give a county veto authority over decisions made by DHEC. There is no statutory authority providing a county’s consistency determination is determinative of the ultimate permitting decision. Although Section 44-96-290(F) requires a proposed facility comply with local standards, it does not designate the county as the final arbiter on whether the proposed facility complies with its local zoning, land use, and other ordinances. Id. (Emphasis added.)

Here, we have a similar situation. The statutes, §§ 40-1-90 and -210 specifically authorize “the board” to act on general disciplinary matters. Statute § 40-47-200 and SC Reg. 81-24 include similar language specifically applicable to the medical board. Interestingly, SC Reg. 81-24 states:

“For the purpose of any investigation or proceedings under the provisions of this chapter, the Board or any person or persons designated by it (emphasis added) may administer oaths and affirmations, subpoena witnesses, [etc.] . . . .

The Board may apply to an administrative law judge, as provided under Article 5 of Chapter 23 of Title 1, for an injunction restraining the person from such conduct.”

The regulation does not include authority for delegation to any other person to apply to an administrative law judge for an injunction, only “the Board” may do so.

Furthermore, the statutory and regulatory references relating to the action by the Board requires a majority of the Board. Specifically, Reg. 81-13 states that “[a] formal complaint shall issue only upon a finding by a majority of the Board that an initial complaint presented . . . is meritorious and warrants a hearing before the Disciplinary Panel. . . .” Also, SC Code Ann. § 40-47-200 (A) “The Board .. . .” and (E) decisions by the board “must be by majority vote.” There is no evidence presented that a majority of the Board authorized this action. See fn. 2 supra.

It is a fundamental tenet of statutory construction that “words of the statute must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute’s operation.” Marlboro Park Hospital v. SC DHEC, S.C. Sup. Ct. Op. 3774 (April 12, 2004), citing Hitatchi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992). Also, “[i]t is well settled that statutes dealing with the same subject matter are in pari materia and must be construed together, if possible, to produce a single, harmonious result. Joiner v. Rivas,342 S.C 102, 536 S.E.2d 372 (2000).” Grant v. City of Folly Beach, 346 S.C. 74, 551 S.E.2d 229, (2001). Finally, SC Coastal Conservation League v. SC DHEC et al. holds that “[t]he statute, therefore, is interpreted best through application of the rule of construction known as ‘expressio unius est exclusio alterius’ meaning ‘to express or include one thing implies the exclusion of another, or of the alternative.’ Hodges v. Rainey, 341 S.C. 79, 86, 533 S.E. 2d 578, 582 (2000) (quoting Black’s Law Dictionary 602 (7th ed. 1999)),” SC Coastal Conservation League v. SC DHEC et al. 345 SC 525, 548 S.E. 2d 887 (Ct. App. 2001).

C. Public Interest

Article 1, Section 9 of the South Carolina Constitution provides “all courts shall be public....” The S. C. Supreme Court has interpreted this provision to mean that the public, and likewise the press, has a right of access to court proceedings, subject to a balancing of interests with the parties involved. Ex parte Columbia Newspapers, Inc, 286 S. C. 116, 333 SE2d 337 (S.C. 1985) (Emphasis added.) The Court further stated that if challenged, the judge’s decision to close any proceeding must be supported by findings which explain the balancing of interests and the need for closure of the proceeding.

§ 1-23-600(a) of the Administrative Procedures Act provides that “. . . Proceedings before Administrative Law Judges are open to the public unless confidentiality is allowed or required by law.” Thus, it is necessary to analyze and apply the Medical Board’s confidentiality statute, §40-47-213.

The fundamental tenets of due process are (1) Notice and (2) an opportunity to be heard. The underlying reason for the confidentiality requirements of § 40-47-213 is to insure that no hearing or final disciplinary order of the Board is public until the accused physician has been afforded due process. The entire Physician Licensing Act [§ 40-47-10 et. seq.] and the regulations promulgated thereunder [R. 81-1 through 81-90] clearly delineate a process whereby the Board's actions are not public until that due process-- including an opportunity to confront the witnesses and the evidence against him and to present his own witnesses and evidence--is satisfied. Due process of necessity requires that the accused Physician be allowed to present and argue the merits of his case.

CONCLUSION

In the present case, I find that:

1. Respondent has a Constitutionally protected right to engage in his profession,

as recognized in §40-1-10(A). That code section further states that the State cannot

abridge that right “except as a reasonable exercise of its police powers when it is

clearly found that abridgement is necessary for the preservation of the health, saftey,

and welfare of the public.

2. The Legislature by 1985 Act No. 136, §1, enacted §40-47-213, which mandates

absolute confidentiality regarding any “complaint, investigation, or other proceeding

before the Board....” until the board issues a final order. [The only exception

is that the board may provide information for a violation of state or federal law.]

R. 81-20, enacted in 1998, echoes that language and further provides that only the

licensee may waive confidentiality.

3. The statutes and regulations clearly evince the Legislative intent to protect the

identity of the accused physician and his license until he has been accorded

due process of law.

4. Due process has been satisfied in the present case by the 3-day hearing and a full

opportunity for each party to present its case and cross-examine the other party’s witnesses.

I therefore conclude as a matter of law:

1.Due process has been satisfied; therefore, this order may be made public.


2.

The public health, safety, and welfare are protected by the “cease and desist” order.

3.The facts underlying this case were highly publicized several weeks before the injunctive action was brought. Thus the public was aware of the issues and the conduct that was alleged to be harmful to the public. Moreover, the physician and the Medical Board entered into a consent order in which the Respondent agreed to cease the use of hydrogen peroxide infusion before this case was assigned to me.

For the reasons stated, I find that the Board did not authorize the injunctive action, and, therefore, deny the same. Footnote

AND IT IS SO ORDERED.

___________________________________

Carolyn C. Matthews,

South Carolina Administrative Law Judge


November 18, 2004

Columbia, SC