Ross v. Medical University of South Carolina

Decision Date07 May 1997
Docket NumberNo. 24694,24694
Citation328 S.C. 51,492 S.E.2d 62
Parties, 121 Ed. Law Rep. 1174 Paul ROSS, M.D., Appellant, v. MEDICAL UNIVERSITY OF SOUTH CAROLINA, James B. Edwards, W. Marcus Newberry, Stanley C. Baker, Jr., Thomas C. Roland, M.D., Melvyn Berlinsky, Wm. Bruce Ezell, Jr., M.D., Cotesworth P. Fishburne, Jr., D.D.S., Herbert C. Granger, Charles B. Hanna, M.D., Robert C. Lake, Jr., E. Conyers O'Bryan, Jr., M.D., Claudia W. Peeples, Harrison L. Peeples, M.D., Philip D. Sasser and Alan E. Stalvey, Respondents. . Heard
CourtSouth Carolina Supreme Court

Ellis I. Kahn and Justin S. Kahn of Kahn Law Firm, Charleston, for appellant.

Richard S. Rosen, Morris D. Rosen, and Alex B. Cash, of Rosen, Rosen & Hagood, and Joseph C. Good, Jr., Charleston, for respondents.

BURNETT, Justice:

Appellant Paul Ross, M.D., seeks judicial review under the Administrative Procedures Act (the APA) 1 of the termination of his tenured position by Respondent Medical University of South Carolina (MUSC). Dr. Ross contends multiple and overlapping errors at all levels in the process of his termination resulted in denial of his procedural due process rights in violation of the United States and South Carolina Constitutions. 2 The circuit court affirmed the termination. We affirm as modified.

PROCEDURAL HISTORY

Dr. Ross was a tenured professor at MUSC. In 1989, his employment was terminated by James Edwards, President of MUSC. Pursuant to the procedures set forth in the MUSC faculty handbook, Dr. Ross requested and received a hearing before a Faculty Hearing Committee (Committee). The Committee recommended Dr. Ross' termination be upheld. In accordance with the handbook procedures, the Vice-President for Academic Affairs, Marcus Newberry, reviewed the Committee's recommendation and rationale and concurred in the termination. Thereafter, the Board of Trustees (the Board) granted review and, after hearing argument from counsel for both Dr. Ross and MUSC, unanimously voted to uphold Dr. Ross' termination. 3 After taking additional evidence, the circuit court concluded, inter alia, Dr. Ross' termination was supported by substantial evidence and his due process rights were not violated.

EVIDENCE BEFORE COMMITTEE

The following evidence was presented during the seven-day hearing before the Committee in September 1989. In 1975, Dr. Ross was hired by MUSC as a tenured professor and the Chairman of the Department of Radiology (the Department). Like other faculty, Dr. Ross' income was comprised of a base salary, supplemented by funds distributed from a professional fee account. Funds for the professional fee account were generated by clinical work performed by the Department faculty.

The Department received funding directly from MUSC and from the professional fee account. As Chairman, Dr. Ross had authority to distribute the Department's funds for Departmental salaries, research, and expenses as he saw fit. Dr. Ross agreed he was accountable for the distribution. MUSC administration agreed Department faculty would not be informed of Dr. Ross' income.

In 1982, Dr. Ross' net income was $392,702. The Acting Dean of the School of Medicine advised Dr. Ross he was concerned about the level of the doctor's income. Over the next few years, Dr. Ross' income increased to $662,556. In 1985, the Vice-President for Academic Affairs warned Dr. Ross about his high income. At times, MUSC reduced the direct funding for the Department to force Dr. Ross to allocate more of the professional fees for Departmental purposes, rather than to his personal income.

In 1986, the Dean of the School of Medicine notified Dr. Ross his total income could not exceed the 80th percentile of income for radiology professors as reported by the Association of American Medical Colleges times 1.2%. The Dean instructed Dr. Ross to resign as Chairman of the Department. Dr. Ross submitted his resignation in mid-1988 and then went on sabbatical. His resignation as Chairman was effective on February 1, 1989. Between 1980 and 1988, Dr. Ross allocated to himself over $2,000,000 more than the average medical school department chairman.

Shortly after Dr. Ross' resignation as Chairman, the Department faculty met with Vice-President Newberry and expressed Vice-President Newberry spoke with Dr. Ross about his income and the faculty's concerns on at least three occasions between February 9 and the end of March 1989. At these meetings, Vice-President Newberry informed Dr. Ross Department faculty members were demoralized by his presence and preferred he leave MUSC.

concern over the direction of the Department. The faculty informed Vice-President Newberry it had discovered the level of income Dr. Ross had distributed to himself from funds generated by the Department as a whole. The faculty was upset because Dr. Ross had maintained MUSC administration had denied the Department adequate funding for their academic endeavors and because he had allocated available funds to his personal income.

By letter dated and personally delivered to Dr. Ross on March 29, 1989, Vice-President Newberry notified Dr. Ross of complaints he had received and charged he had:

repeatedly violated Article X, III(B) of the [MUSC] handbook by conduct seriously prejudicial to [MUSC] through infractions of commonly accepted standards of behavior in academic and professional communities. Specifically, it is alleged that you misused your position as Department Chairman for personal gain by unfairly compensating yourself in relationship to your actual contributions to the department's earnings. You knowingly allocated [professional account] monies in such a manner as to unfairly penalize your departmental employees while knowingly raising your level of compensation to a point far exceeding that of any M.D. at [MUSC] and exceeding nationally accepted levels. These actions continued even after warnings from the administration.

This letter concluded by stating Vice-President Newberry would appoint a peer review committee to investigate these allegations. Vice-President Newberry testified he tried to resolve the matter with Dr. Ross by offering him the option of resigning in lieu of appointing a peer review committee.

On April 5, 1989, Dr. Ross met with Vice-President Newberry; he refused to resign. Thereafter, Vice-President Newberry discussed the situation with the General Counsel for MUSC. The two reviewed the MUSC faculty handbook and determined, rather than appointing a peer review committee, the matter should be brought to President Edwards' attention.

President Edwards testified he independently investigated Dr. Ross' conduct. By letter dated April 13, 1989, President Edwards notified Dr. Ross he was guilty of conduct seriously prejudicial to MUSC and terminated his employment. In response to a letter from Dr. Ross' counsel, President Edwards wrote Dr. Ross on April 20, 1989, delineating the particular charges of misconduct.

Other testimony before the Committee indicated faculty members recruited by Dr. Ross were paid less than radiologists in the 50th percentile of the Association of American Medical Colleges. Faculty members left the Department because of lack of money. In 1987, Dr. Ross told a faculty member there were no additional funds for raises and his (Dr. Ross') own salary was directly controlled by the Dean.

A faculty member testified Dr. Ross performed clinical work one-half to one day per week and read scans approximately one to one and one-half hours per day. He explained, at that rate, it was impossible for Dr. Ross to have generated the income he collected as professional fees. Nonetheless, Dr. Ross had the highest income at MUSC.

President Edwards testified Dr. Ross' conduct irreparably damaged MUSC and resulted in MUSC losing $500,000 in known donations. Various witnesses testified Dr. Ross' conduct significantly deviated from standard practice in academic administration, was improper, was unethical, and was seriously prejudicial to MUSC.

ISSUES

I. Did the circuit court err by concluding the APA did not apply to the grievance procedure at MUSC?

A. Did Dr. Ross receive notice as required by the APA?
B. Was Dr. Ross improperly prohibited from taking discovery under the APA?
C. Do the Board's findings of fact and conclusions of law comply with the APA?

II. Did the circuit court err by concluding Dr. Ross' due process rights were not violated because he was afforded an adequate pretermination hearing?

III. Did MUSC violate South Carolina Constitution article I, § 22?

IV. Did the circuit court err by concluding Dr. Ross was required to establish he was prejudiced by certain ex parte communications between employees of MUSC?

V. Did the circuit court err by issuing its own findings of fact and conclusions of law?

I. Applicability of APA to Grievance Proceedings

While his petition for judicial review was pending, Dr. Ross served discovery on MUSC. MUSC refused to respond and was held in contempt. On appeal of the contempt order, this Court determined, pursuant to provisions in the APA, the circuit court, sitting as the reviewing court, had the discretion to order discovery and to admit extrinsic evidence concerning alleged irregularity in the agency proceeding. 4 In addition, the Court concluded ex parte communications between MUSC's General Counsel and Vice-President Newberry violated provisions of the APA. Accordingly, the Court affirmed the circuit court's jurisdiction to order discovery and remanded the matter for further proceedings under the APA. Ross v. Medical University of South Carolina, 317 S.C. 377, 453 S.E.2d 880 (1994) (Ross I ).

Dr. Ross contends the circuit court was bound by Ross I as the law of the case and, therefore, erred by concluding the APA did not apply to MUSC's grievance proceedings. We agree.

The doctrine of the law of the case prohibits issues which have been decided in a prior appeal from being relitigated in the trial...

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