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24754 - Anonymous (M-156-90) v. The State Board of Medical Examiners

Davis Adv. Sh. No. 5
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

      Anonymous (M-156-90),     Respondent,

          v.

      The State Board of

      Medical Examiners,     Petitioner.

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS

Appeal From Richland County

Don S. Rushing, Judge

Opinion No. 24754

Heard November 18, 1997 - Filed January 26, 1998

REVERSED


Richard P. Wilson, S. Phillip Lenski, and Richard
W. Simmons, II, all of South Carolina Department
of Labor, Licensing & Regulation; and Daryl G.
Hawkins, of Lewis, Babcock & Hawkins, all of
Columbia, for petitioner.
Charles E. Carpenter, Jr., and Deborah Harrison
Sheffield, of Richardson, Plowden, Carpenter &
Robinson, P.A.; Samuel F. Crews, III; and William
H. Davidson, 11, of Ellis, Lawhorne, Davidson &
Sims, P.A., all of Columbia, for respondent.

p. 11


ANONYMOUS v. STATE BOARD OF MEDICAL EXAMINERS

      MOORE, A.J.: We granted petitioner a writ of certiorari to

review the Court of Appeals' decision in Anonymous v. State Bd. of Med.

Exam'r, __S.C.__, 573 S.E.2d 870 (Ct. App. 1996). We reverse.

FACTS

      In 1991, the State Board of Medical Examiners (Board)

instituted disciplinary proceedings against respondent alleging he had

engaged in unethical and unprofessional physical conduct during prostate

examinations of eight patients. After a hearing, the panel issued its

report finding respondent had committed misconduct with four patients by

engaging in unethical and unprofessional contact and conduct likely to

deceive, defraud or harm the public, and respondent was deficient in moral

character or professional competence. The panel recommended respondent

undergo a psychiatric evaluation and his license to practice medicine be

suspended pending the completion of the evaluation and a treatment plan.

      In 1992, after a final hearing, the Board found misconduct,

imposed a public reprimand, and placed respondent's license in a

probationary status for an indefinite period, conditioned upon, inter alia,

semi-annual appearances before the Board.1 Respondent filed a motion to

reconsider raising the issue of the correct standard of proof for an

Administrative Procedures Act (APA) proceeding. The Board denied

respondent's motion.

      Respondent appealed to the circuit court pursuant to S.C. Code

Ann. § 1-23-380 (Supp. 1996). The circuit court reversed finding the final

order was clearly erroneous and the evidence unreliable, not probative,

and insubstantial. The Board appealed to the Court of Appeals.

      The Court of Appeals reversed the circuit court and held the

standard of proof in a professional disciplinary proceeding under the APA


      1Between the panel hearing and the final hearing, respondent

underwent a psychiatric evaluation. The psychiatrist testified at the final

hearing that he found "no evidence of sociopathy and no evidence of sexual

deviant practices or behavior."

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ANONYMOUS v. STATE BOARD OF MEDICAL EXAMINERS

is clear and convincing evidence.2 This issue was raised to the Court of

Appeals as an additional sustaining ground by respondent.3 The Court of

Appeals reversed and remanded for a de novo hearing for the Board to

apply the clear and convincing standard.

ISSUES

1) Was the standard of proof issue properly preserved?
2) Did the Court of Appeals err in holding the proper
standard of review is clear and convincing evidence?

DISCUSSION

      1) Preservation

      The Board contends the Court of Appeals erred in addressing

the standard of proof issue because it was not preserved. Respondent

raised the standard of proof issue for the first time when he moved for

reconsideration before the Board. The Board did not raise this

preservation issue to the Court of Appeals in its petition for rehearing.

Therefore, whether respondent failed to properly raise the issue of the

standard of proof is not properly before this Court. Rule 226 (d)(2),

SCACR. Camp v. Springs Mtg. Corr)., 310 S.C. 514, 426 S.E.2d 304

(1993)(Court will not address issue which Court of Appeals did not address

in its opinion and was not raised in petition for rehearing).


   2 Clear and convincing evidence is that degree of proof which will

produce in the mind of the trier of facts a firm belief as to the allegations

sought to be established. Such measure of proof is intermediate, more

than a mere preponderance but less than is required for proof beyond a

reasonable doubt; it does not mean clear and unequivocal.' Middleton v.

Johnson, 221 Va. 797, 273 S.E.2d 800, 802. Accord Clark v. Cotton, 207

Ga. App. 883, 429 S.E.2d 291 (1993)." Spartan Radiocasting, Inc. v.

Peeler, __S.C.__ , 478 S.E.2d 282, 283 n.4 (1996).

   3 The South Carolina Department of Health and Environmental

Control, Department of Revenue and Taxation, and Department of

Insurance filed amicus curiae briefs in this case. All three basically

espouse the view that the correct standard of proof should be

preponderance of the evidence.

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ANONYMOUS v. STATE BOARD OF MEDICAL EXAMINERS

      2) Standard of proof

      The Court of Appeals held the preponderance of the evidence

standard in medical disciplinary proceedings is "inconsistent with due

process." The Court of Appeals stated there is no reason to differentiate

between attorney and medical disciplinary proceedings and adopted the

clear and convincing standard for all professional disciplinary proceedings

under the APA. We disagree.

      "Absent an allegation of fraud or a statue or a court rule

requiring a higher standard, the standard of proof in administrative

hearings is generally a preponderance of the evidence .... Utilization of a

higher level of proof is ordinarily reserved for situations where particularly

important individual interests or rights are at stake, such as the potential

deprivation of individual liberty, citizenship, or parental rights." 2 Am.

Jur.2d Administrative Law § 363 (1994). Additionally, the judiciary

defines the standard when the legislature has not. Johnson v. Arkansas

Bd. of Exam'rs in Psychology, 305 Ark. 451, 808 S.W.2d 766 (1991).

      In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71

L.Ed.2d 599 (1982), the United States Supreme Court held the proper

standard of proof in parental rights termination proceedings is clear and

convincing. The Court applied the factors enunciated in Mathews v.

Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), which govern a

determination of what process is due under the fourteenth amendment: 1)

the private interest affected by the proceeding; 2) the risk of erroneous

deprivation of such interest; and 3) the government's interest supporting

use of the challenged procedure. The United States Supreme Court has

mandated a clear and convincing standard of proof when the individual

interest involved is "particularly important" and "more substantial than

the mere loss of money" or when there is involved a "significant

deprivation of liberty." Santosky, 455 U.S. at 755, 102 S.Ct. at 1396.;

Addington v. Texas, 441 U.S. 418, 424, 60 L.Ed.2d 323, 99 S.Ct. 1804

(1979)(civil commitment); Woodby v. INS, 385 U.S. 276, 17 L.Ed.2d 362,

87 S.Ct. 1333 (1966)(deportation); Chaunt v. United States, 364 U.S. 350,

5 L.Ed.2d 120, 81 S.Ct. 147 (1960)(denaturalization). Of course, state

courts may provide more expansive rights under their own constitutions

than the rights which are conferred by the United States Constitution.

Prune Yard Shopping Center v. Robbins, 447 U.S. 74, 100 S.Ct. 2035, 64

L.Ed.2d 741 (1980).

      Several state courts have discussed these United States

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ANONYMOUS v. STATE BOARD OF MEDICAL EXAMINERS

Supreme Court decisions in deciding which standard to apply.4 Further,


   4 Many jurisdictions have held that the correct standard of proof is

clear and convincing evidence in a medical disciplinary proceeding. See e.g.

Silva v. Superior Ct., 14 Cal.App.4th 562, 17 Cal.Rptr.2d 577 (1993)(clear

and convincing standard - same as in attorney disciplinary cases); Rife v.

Dept. of Prof'l Reg., 638 So.2d 542 (Dist. Fla. Ct. 1994)(clear and

convincing standard); Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)(clear

and convincing in actions to revoke a professional license); Mississippi St.

Bd. of Nursing v. Wilson, 624 So.2d 485 (Miss. 1993)(clear and convincing

standard if fraud or quasi-criminal conduct is involved); Davis v. Wright,

243 Neb. 931, 503 N.W.2d 814 (1993)(adopted clear and convincing

standard for medical disciplinaries; held no need to differentiate between

attorney and medical disciplinaries); In re Zar, 434 N.W.2d 598 (S.D.

1989)(clear and convincing standard for all professional license revocation

proceedings); Robinson v. Oklahoma State Bd. of Med. Licensure &

Supervision, 916 P.2d 1390 (Okla. 1996)(clear and convincing standard in

disciplinary cases involving a professionally licensed person); Bernard v.

Board of Dental Exam'rs, 2 Or.App. 22, 465 P.2d 917 (1970)(clear and

convincing standard for all license revocations); In re Sobel, 130 Or.App.

374, 882 P.2d 606 (Ct. App. 1994)(clear and convincing standard applied in

cases involving revocation of license); Devous v. Board of Med. Exam'rs,

845 P.2d 408 (Wyo. 1993)(clear and convincing standard in medical

disciplinaries).

   Other jurisdictions have held the correct standard is

preponderance of the evidence in a medical disciplinary proceeding. See

e.g. Johnson v. Arkansas Bd. Of Exam'rs in Psychology, 305 Ark. 451, 808

S.W.2d 766 (1991)(rejected argument that clear and convincing standard

should be applied in license revocation cases and adopted preponderance

standard - same standard as in attorney disciplinaries); Sherman v.

Commission on Licensure to Practice the Healing Art, 407 A.2d 595 (D.C.

Ct.App. 1979)(preponderance standard- court noted same as attorney

disbarment proceedings); Boswell v. Iowa Bd. of Veterinary Med., 477

N.W.2d 366 (Iowa 1991)(preponderance standard - court noted same

standard applied to doctors and veterinarians); Ruker v. Michigan Bd. of

Med., 138 Mich.App. 209, 360 N.W.2d 154 (1984)(preponderance standard

in any administrative disciplinary proceeding against a doctor); In re

Wang, 441 N.W.2d 488 (Minn. 1989)(preponderance standard - but court

noted burden in attorney disciplinary is clear and convincing); Petition of

Grimm, 138 N.H. 42, 635 A.2d 456 (1993)(preponderance standard for

medical profession but clear and convincing standard for attorneys;

p. 15


ANONYMOUS v. STATE BOARD OF MEDICAL EXAMINERS

the jurisdictions which have discussed the issue and decided to apply the

clear and convincing standard have done so noting that the federal

constitution does not mandate the higher standard. See e.g. Johnson,

supra. ("The State of Oklahoma can afford greater due process safeguards

than those provided by the federal Constitution."); In re Benjamin, 698

A.2d 434 (D.C. App. 1997)(clear and convincing standard should be applied

but that this standard is not constitutionally mandated as license to

practice law is merely property right).

      Some states have also specifically held that attorneys and

other professionals do not have to be governed by the same standard of

proof. See e.g. Grimm, supra. In attorney proceedings, South Carolina5

and at least 30 states apply the clear and convincing standard. See In re

Walton, 676 P.2d 1078 (Alaska 1984)(discussion of standards used by

states). Further, the American Bar Association suggests the clear and


addressed equal protection problems regarding different standards for two

professions but found no violation); In re Martin, 111 A.D.2d 1009, 490

N.Y.S.2d 328 (1985)(preponderance standard for medical profession but

court declined to address whether this standard was constitutionally

permissible in proceedings involving licensed professionals, an issue which

was not raised); Gandhi v. Med. Examining Bd., 168 Wis.2d 299, 483

N.W.2d 295 (Wis. Ct.App. 1992)(preponderance standard for physicians but

clear and convincing standard for attorneys).

   Still other jurisdictions use the clear and convincing standard

only when fraud is alleged or the proceedings are for revocation of a

professional license rather than a lesser sanction. See e.g. In re D'Angelo,

105 N.M. 391, 733 P.2d 360 (1986)(absent allegation of fraud or statute or

court rule requiring higher burden of proof, standard is preponderance).

   5 See e.g. In re Friday 263 S.C. 156, 208 S.E.2d 535 (1974); In re

Edwards, 319 S.C. 57, 459 S.E.2d 837 (1995). There is not a particular

case in which this standard was adopted wherein the reasoning for its

adoption is discussed. In one of the earlier cases, Ex parte Gadsden, 89

Rep. 352 (1911), the court stated that misconduct must be found by a

"clear preponderance" of the evidence. The standard then evolved into

clear and convincing. See State v. Jennings, 161 S.C. 263, 159 S.E.2d 627

(1931). In any event, it is now well-settled that the standard in attorney

and judicial disciplinary proceedings is clear and convincing evidence in

South Carolina.

p. 16


ANONYMOUS v. STATE BOARD OF MEDICAL EXAMINERS

convincing standard be applied in attorney and judicial disciplinaries. See

ABA-BNA Lawyers' Manual on Professional Conduct § 101-2101 (1984);

ABA Standards Relating to Judicial Discipline 8.40. However, as noted by

the dissent in Johnson, supra, the Federation of State Medical Boards

recommends the preponderance standard in medical disciplinary -

proceedings. Johnson, 913 P.2d 1339, 1352.

      We find a preponderance of the evidence standard adequately

protects a physician's property interest in his license. We, however, leave

it to the General Assembly to amend the APA and provide the higher

standard of proof for APA proceedings if it determines the higher standard

appropriate. Accordingly, the Board applied the proper standard.

      The Board contends that substantial evidence was presented to

support its decision and therefore the circuit court erred in reversing the

decision. Section 1-23-380 of the APA provides that an agency's findings

of facts may be reversed or modified only if clearly erroneous in view of

the reliable, probative and substantial evidence of record. See also Waters

v. South Carolina Land Resources Comm'n, 321 S.C. 219, 467 S.E.2d 913

(1996). "Substantial evidence is not a mere scintilla of evidence nor

evidence viewed blindly from one side, but is evidence which, when

considering the record as a whole, would allow reasonable minds to reach

the conclusion that the agency reached." Palmetto Alliance, Inc. v. South

Carolina Pub. Serv. Comm'n, 282 S.C. 430, 432, 319 S.E.2d 695, 696

(1984).

      After carefully reviewing the evidence which was before the

Board, we find the evidence does not substantially support the conclusion

respondent committed misconduct. The Board found respondent had

committed misconduct in conducting the examinations of Patients B, C, D,

and F. The expert who testified for the Board, Dr. James Herlong,

testified that, except for Patient F, the other prostate examinations

performed by respondent were medically necessary. He testified whether

the examination performed upon Patient F was medically necessary was a

judgment call.

      In testifying that there was misconduct, Dr. Herlong focussed

more upon the method by which respondent drew the prostatic fluid

(referred to as "stripping" or "milking"). Dr. Herlong testified this is

usually done by the patient. However, he also testified that it is generally

not done by the doctor because it is unusual that the patient allows the

doctor to do it. Dr. Herlong testified that a doctor performing this type of

p. 17


ANONYMOUS v. STATE BOARD OF MEDICAL EXAMINERS

examination is not engaging in an improper practice, rather "it's just that

it can be done in more appropriate ways." Respondent called a urologist

and a family practitioner who testified that the method used by

respondent was acceptable. Further, one complaint was dismissed when

the patient testified that he had been examined in the same manner when

he was in the military.

      Several patients who were not involved in the complaint

testified on behalf of respondent and stated that respondent had performed

the same type of prostate examination on them and they felt it was

appropriate. None of the patients testified that they felt respondent

received any sexual or perverse pleasure from the examinations. In fact,

the patients testified they felt that the examinations were conducted in a

professional manner and did not feel they had been inappropriately

touched.

      There was no testimony that these examinations constituted

misconduct. Thus, the findings of the Board are clearly erroneous.6

Accordingly, we reverse the Court of Appeals' decision and affirm the

circuit court's order.

REVERSED.

FINNEY, C.J., TOAL, WALLER and BURNETT, JJ., concur.


   6 Respondent testified at the final hearing that he no longer performs

these examinations in the same manner and he now follows a more

acceptable method of obtaining prostatic fluid.

p. 18