Anonymous (M-156-90) v. State Bd. of Medical Examiners, M-156-90

• Court: Court of Appeals of South Carolina
• Writing for the Court: ANDERSON
• Citation: 323 S.C. 260,473 S.E.2d 870
• Docket Number: M-156-90,No. 2545
• Decision Date: 06 June 1996
• Parties: ANONYMOUS (), Respondent, v. The STATE BOARD OF MEDICAL EXAMINERS, Appellant. . Heard

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473 S.E.2d 870 323 S.C. 260 ANONYMOUS (M-156-90), Respondent,
v.
The STATE BOARD OF MEDICAL EXAMINERS, Appellant. No. 2545. Court of Appeals of South Carolina. Heard June 6, 1996.
Decided July 15, 1996.
Rehearing Denied Aug. 22, 1996.
Ceretiorari Granted April 3, 1997.

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[323 S.C. 262] Daryl G. Hawkins and Pete Kulmala, both of Lewis, Babcock & Hawkins; and Richard P. Wilson and John A. Birgerson, both of South Carolina Department of Labor, Licensing & Regulation, Columbia, for appellant.

Charles E. Carpenter, Deborah H. Sheffield and Samuel F. Crews, III, all of Richardson, Plowden, Grier & Howser; and William H. Davidson, II, Columbia, for respondent.

Samuel L. Finklea, III, and Carlisle Roberts, Jr., for S.C. Department of Health & Environmental Control; Harry T. Cooper, Jr., Nicholas P. Sipe and William L. Todd, for S.C. Department of Revenue & Taxation; and Gwendolyn L. Fuller and Lee P. Jedziniak, for S.C. Department of Insurance, Columbia, for Amici Curiae.

ANDERSON, Judge:

The State Board of Medical Examiners (the Board) appeals the circuit court's reversal of the Board's decision to publicly reprimand a physician, Anonymous, and place his license in a probationary status for an indefinite period. We reverse and remand.

FACTS/PROCEDURAL BACKGROUND

The Board alleged Anonymous violated provisions of the South Carolina Medical Practice Act, S.C.Code Ann. [323 S.C. 263] § 40-47-5, et seq. (1986), and the Rules and Regulations of the State Board of Medical Examiners, 26 S.C.Code Ann.Regs. 81-1 to 81-100 (1976). Medical disciplinary proceedings are authorized pursuant to these cited statutory provisions and regulations. Specifically, the Board alleged Anonymous violated S.C.Code Ann. § 40-47-200(7), (8), and (12) (1986) and Regulation No. 81-60(A), (C), and (D) by engaging in unethical and unprofessional physical contact during prostate examinations of several patients. Anonymous denied the allegations.

On August 14, 1991, a hearing was held before a three-member panel of the Medical Disciplinary Commission. The Panel issued its certified report on September 24, 1991, finding that Anonymous violated S.C.Code Ann. § 40-47-200(7), (8), and (12) (1986), and Regulation 81-60(A), (C), and (D).

Following receipt of the Panel's report, Anonymous appealed the Panel's decision to the Board. The Board conducted a final order hearing. In its final order, the Board issued a public reprimand and placed Anonymous on indefinite probation.

Anonymous appealed the Board's final order to the circuit court. The circuit court reversed the Board, ruling that the "evidence against the Petitioner in this case is neither reliable, probative, nor substantial and that the Board's decision is clearly erroneous."

On appeal, the Board argues the final order is supported by substantial evidence in the record and that the circuit court impermissibly substituted its judgment for that of

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the Board with respect to the weight of the evidence on fact questions. Anonymous contends: (1) the circuit court correctly found the Board's findings clearly erroneous because there is no reliable, probative, or substantial evidence to support such conclusions; and (2) the Board denied his due process rights by applying a preponderance of the evidence, as opposed to a clear and convincing, standard of proof. ISSUES

1) Which standard of proof, preponderance of evidence or clear and convincing, should be applied by the Board of Medical Examiners in an administrative disciplinary proceeding?

2) Is the decision of the Board of Medical Examiners clearly erroneous because there is no reliable, probative, or substantial evidence in the record?

[323 S.C. 264] LAW/ANALYSIS

The South Carolina Administrative Procedures Act (APA), S.C.Code Ann. § 1-23-310, et seq. (1986), governs the Board's action. Boggs v. State Bd. of Medical Examiners, 288 S.C. 144, 341 S.E.2d 635 (1986); see also S.C.Code Ann. § 1-23-310(1) (1986 & Supp.1992) ("As used in this article ... '[a]gency' means each state board ... authorized by law to make rules or to determine contested cases"); S.C.Code Ann. § 40-47-20 (1986 & Supp.1995) ("The Board shall adopt rules and regulations for its government, for the practice of medicine ..., for judging the professional and ethical competence of physicians and surgeons including a code of medical ethics, and for the discipline of physicians and surgeons...."). South Carolina Code Ann. § 1-23-330(1) (1986) provides that the rules of evidence as applied in civil cases apply in APA proceedings. However, the APA is silent as to the standard of proof. See S.C.Code Ann. §§ 1-23-310 to -660 (1986 & Supp.1995). The Regulations governing the Board are also silent as to the standard of proof. See 26 S.C.Code Ann.Regs. 81-1 to 81-100 (1976).

Anonymous argues the Board denied his due process rights by applying a preponderance of the evidence standard of proof. He further contends due process requires the State Board prove professional misconduct justifying discipline by clear and convincing evidence. We agree.

PROCEDURAL DUE PROCESS

The guarantee of due process found in the Fourteenth Amendment of the Federal Constitution declares that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV. Due process of law is one of the most important guarantees found in the United States Constitution.

Due process encompasses "[a]ll rights which are of such fundamental importance as to require compliance with due process standards of fairness and justice" and includes "[p]rocedural ... rights of citizens against government actions that threaten the denial of life, liberty, or property." BLACK'S LAW DICTIONARY 501 (6th ed. 1990).

"Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the [323 S.C. 265] Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976). " '[D]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.' " Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748-49, 6 L.Ed.2d 1230, reh'g denied, 368 U.S. 869, 82 S.Ct. 22, 7 L.Ed.2d 70 (1961) (quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)). "Rather, the phrase expresses the requirement of 'fundamental fairness,' a requirement whose meaning can be as opaque as its importance is lofty." Lassiter v. Department of Social Services, 452 U.S. 18, 24, 101 S.Ct. 2153, 2158, 68 L.Ed.2d 640, reh'g denied, 453 U.S. 927, 102 S.Ct. 889, 69 L.Ed.2d 1023 (1981). "Applying the Due Process Clause is therefore an uncertain enterprise which must discover what 'fundamental fairness' consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake." Lassiter,

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452 U.S. at 24-25, 101 S.Ct. at 2158. "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). "[R]esolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected." Mathews, 424 U.S. at 334, 96 S.Ct. at 902.

The Fourteenth Amendment articulates a prohibition against any state deprivation of life, liberty, or property without due process of law. The rule is enunciated in Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977):

Application of this prohibition requires the familiar two-stage analysis: We must first ask whether the asserted individual interests are encompassed within the Fourteenth Amendment's protection of "life, liberty or property"; if protected interests are implicated, we then must decide what procedures constitute "due process of law."

Ingraham, 430 U.S. at 672, 97 S.Ct. at 1413. See also 16A AM.JUR.2D Constitutional Law § 815 (1979) (discussing requirements[323 S.C. 266] and applicability of procedural due process).

"When the State seeks to revoke a professional license, procedural due process rights must be met." Zaman v. South Carolina State Bd. of Medical Examiners, 305 S.C. 281, 284, 408 S.E.2d 213, 215, cert. denied, 502 U.S. 869, 112 S.Ct. 200, 116 L.Ed.2d 160 (1991).

In Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), the United States Supreme Court discussed the function of standards of proof:

The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to "instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, [1076] 25 L.Ed.2d 368, 51 Ohio Ops.2d 323 (1970) (Harlan, J., concurring).

Addington, 441 U.S. at 423, 99 S.Ct. at 1808.

"[I]n any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants." Santosky v. Kramer, 455 U.S. 745, 755, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599 (1982).

The Supreme Court recognized that there is a continuum of three standards of proof:

At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, plaintiff's burden of proof is a mere preponderance of the evidence. The...