Osman v. South Carolina Dept. of Labor

Decision Date27 April 2009
Docket NumberNo. 26641.,26641.
Citation676 S.E.2d 672,382 S.C. 244
CourtSouth Carolina Supreme Court
PartiesHibah O. OSMAN, M.D., Respondent/Appellant, v. SOUTH CAROLINA DEPARTMENT OF LABOR, Licensing, and Regulation, South Carolina State Board of Medical Examiners, Appellant/Respondent.

Kenneth P. Woodington, of Davidson & Lindemann, and Lynne W. Rogers, of South Carolina Department of Labor, Licensing, and Regulation, both of Columbia, for Appellant-Respondent.

F. Barron Grier, III, and Lauri Soles Darwin, both of Grier Law Firm, of West Columbia, for Respondent-Appellant.

Justice KITTREDGE:

In this medical disciplinary proceeding, the State Board of Medical Examiners of the South Carolina Department of Labor, Licensing, and Regulation (the Board) issued an order finding Dr. Hibah O. Osman's conduct in performing a surgical procedure warranted the issuance of a public reprimand, the imposition of costs, and the proviso that Dr. Osman must meet certain requirements to reestablish her competency if she ever returned to the practice of surgical obstetrics in South Carolina. On appeal, the Administrative Law Court (ALC) upheld the public reprimand and costs but struck the competency requirement holding the requirement was an "anticipatory suspension." The Board and Dr. Osman filed cross-appeals. We affirm in part and reverse in part.

I.

Dr. Osman is a physician licensed by the State Board of Medical Examiners to practice family medicine in South Carolina. In July 2002, she was practicing in Allendale, South Carolina. One of Dr. Osman's patients was expecting her third child. The thirty-nine year old patient and her husband wanted the child to be born in Allendale, apparently to minimize the inconvenience and disruption to the husband's motel business during a busy holiday season. Dr. Osman acquiesced in this request, although the patient suffered from placenta previa, which is an anterior, low-lying placenta possibly covering a portion of the opening to the womb.

Dr. Osman began the Caesarean section (hereinafter C-Section). Epidural anesthesia was attempted multiple times without success. Therefore, general anesthesia was administered. Unbeknownst to Dr. Osman, the Certified Registered Nurse Anesthetist (CRNA) was unable to intubate the patient. During the surgery, the placenta bled heavily and hampered Dr. Osman's ability to deliver the baby. This difficulty caused Dr. Osman to lengthen her incision multiple times. The baby was successfully delivered, but one of the lengthening incisions injured the patient's uterine artery. This injury was not detected by Dr. Osman during the surgery. The damage to the artery and the placenta abnormality led to significant bleeding and declining vital signs.

As the patient's vital signs deteriorated, Dr. Osman instructed staff to contact Dr. Ross, a local surgeon. Dr. Ross, however, was away on a planned vacation. Dr. Osman failed to ensure the availability of a surgeon in case of complications. Due to the deteriorating circumstances, Dr. Osman contacted Dr. Johnson at MUSC. The patient was transferred to MUSC by helicopter. At MUSC, Dr. Johnson conducted an ultrasound and immediately began operating on the patient. While operating, significant bleeding was observed. A total abdominal hysterectomy was performed. The patient remained at the hospital for seven days following surgery and was discharged. Despite the positive results, all parties agree, the patient was very close to death.

This disciplinary action followed when the Board filed a formal complaint against Dr. Osman alleging approximately thirteen deviations from the standard of care. Dr. Osman filed a pro se response admitting to three instances of misconduct alleged in the complaint: inappropriately performing the surgery in a community county hospital with limited resources, failing to ensure surgical backup, and failing to obtain proper written consent.

Both the Disciplinary Panel for the Board and Board found misconduct as to those matters conceded by Dr. Osman. In its report, the panel recommended no sanction be issued. However, the Board elected to publically reprimand Dr. Osman, require Dr. Osman to pay the assessed costs associated with adjudicating the case, and restrict Dr. Osman from the practice of surgical obstetrics until Dr. Osman proves she has the appropriate education and training. Dr. Osman returned to her native Lebanon.

On appeal, the ALC affirmed the public reprimand and imposition of costs. The ALC, however, deleted the provision requiring Dr. Osman to establish competency in surgical obstetrics on the basis that "an anticipatory suspension is a sanction that the Board does not have the authority to impose." The Board and Dr. Osman filed cross appeals challenging the ALC's order. These appeals are before us pursuant to Rule 204(b) certification.

II. The Board's Appeal

The Board argues the ALC erred in striking the reestablishment of competency condition. We agree.

Section 40-1-120(A)(3) of the South Carolina Code (2001) authorizes the Board to "place a licensee on probation or restrict or suspend the individual's license for a definite or indefinite time and prescribe conditions to be met during probation, restriction, or suspension including, but not limited to, satisfactory completion of additional education, of a supervisory period, or of continuing education programs." The Board's order contained the following competency reestablishment clause:

If [Dr. Osman] should ever return to active practice in the State of South Carolina, [Dr. Osman] shall be restricted from the practice of surgical obstetrics until such time as [Dr. Osman] provides proof that is satisfactory to the Board that she has appropriate education and training in this area.

This sanction fits squarely within the parameters of the Board's statutory authority. Therefore, the ALC erred when it struck the reestablishment provision after improperly finding the Board did not have the authority to levy this sanction. We note,...

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7 cases
  • Forman v. S.C. Dep't of Labor
    • United States
    • South Carolina Court of Appeals
    • 9 Noviembre 2016
    ...is governed by section 1–23–380 of the Administrative Procedures Act (APA) (Supp. 2015). Osman v. S.C. Dep't of Labor, Licensing & Regulation , 382 S.C. 244, 248, 676 S.E.2d 672, 675 (2009). Pursuant to the APA:The court may not substitute its judgment for the judgment of the agency as to t......
  • Cottingham v. S.C. Dep't of Labor
    • United States
    • South Carolina Court of Appeals
    • 16 Enero 2013
    ...v. S.C. State Bd. of Dentistry, 286 S.C. 182, 186, 332 S.E.2d 539, 542 (Ct. App. 1985); see Osman v. S.C. Dep't of Labor, Licensing, Regulation, 382 S.C. 244, 249-50, 676 S.E.2d 672, 675-76 (2009) (upholding sanctions based upon a board's consideration of admitted conduct); Gale v. State Bd......
  • Cottingham v. South Carolina Department of Labor, Licensing and Regulation
    • United States
    • South Carolina Court of Appeals
    • 16 Enero 2013
    ... ... Deese v. S.C. State Bd. of ... Dentistry, 286 S.C. 182, 186, 332 S.E.2d 539, 542 (Ct ... App. 1985); see Osman v. S.C. Dep't of Labor, ... Licensing, Regulation, 382 S.C. 244, 249-50, 676 S.E.2d ... 672, 675-76 (2009) (upholding sanctions based ... ...
  • Okadigwe v. S.C. Dep't of Labor
    • United States
    • South Carolina Court of Appeals
    • 8 Mayo 2019
    ...additional education, of a supervisory period, or of continuing education programs" (emphasis added)); Osman v. S.C. Dep't of Labor, 382 S.C. 244, 247-48, 676 S.E.2d 672,674-75 (2009) (finding the State Board of Medical Examiners' condition restricting a doctor from practicing surgical obst......
  • Request a trial to view additional results

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