Davis Adv. Sh. No. 5
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Anonymous (M-156-90), Respondent,
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
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.
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 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
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."
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.
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).
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.
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
Supreme Court decisions in deciding which standard to apply.4 Further,
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
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;
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
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
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
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
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
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
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.
FINNEY, C.J., TOAL, WALLER and BURNETT, JJ., concur.
these examinations in the same manner and he now follows a more
acceptable method of obtaining prostatic fluid.