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A recent South Carolina Appeals Court decision now gives physicians who are facing disciplinary proceedings before their state medical licensing board more control over the administrative process.  Traditionally, state medical boards have been given broad powers to discipline physicians who have been accused of engaging in unprofessional conduct. In fact, state disciplinary boards have the power to take away a physician’s license to practice medicine.  The type of conduct at issue in these disciplinary proceedings can include improperly examining a patient, failing to get a patient’s informed consent, negligently diagnosing or treating a patient, or improperly dispensing prescription medication. Before disciplining a physician, however, the licensing board must conduct an administrative hearing to determine whether the physician did in fact violate the rules of professional conduct. 

Since a physician who engages in such conduct may be at risk of losing their license to practice medicine, the standard of proof in these administrative proceedings is an important issue.  If the burden of proof is too low, competent physicians whose skills are needed by individuals in the community could be unjustly disciplined.  The South Carolina Appellate Court recently considered whether a physician could lawfully be disciplined based upon a preponderance of the evidence or whether a higher standard of proof should be required. 

  In Anonymous v. State Board of Medical Examiners, several patients accused their physician of engaging in unethical and unprofessional contact while conducting prostate examinations.  In August, 1991, a three member panel from the Medical Disciplinary Commission conducted an administrative hearing to assess the allegations of wrongful conduct brought against the physician.  The panel subsequently issued a certified report finding that the physician engaged in improper conduct in violation of the Rules and Regulations of the State Board of Medical Examiners. 

The physician appealed the findings of the panel to the Board.  After conducting a final order hearing, the Board issued a public reprimand against the physician and then placed the physician on indefinite probation.  The physician appealed the Board’s decision to the state circuit court.  The circuit court found that the evidence presented to the Board was not reliable enough to support the decision to discipline the physician. 

On subsequent appeal, the Board argued that the evidence presented against the physician was sufficient to support the decision to discipline him.  The Board argued that by overturning its decision, the circuit court improperly substituted its judgment for that of the Board.  The physician argued that the circuit court correctly found that the Board’s findings were not reliable.  In addition, the physician claimed that the Board applied the wrong standard of proof when reaching its conclusion.  The physician argued that the Board should have applied the clear and convincing evidence standard instead of the preponderance of the evidence standard.  By applying the lesser standard, the physician claimed the Board denied his constitutional right to due process of law.   

The Appeals Court first considered whether the state statute governing the Board’s actions dictated what the evidentiary standard should be.  However, both the Administrative Procedure Act and the regulations governing the Board did not expressly address this issue.  The Appeals Court then looked at the due process clause of the Constitution to assess whether the Board applied the wrong evidentiary standard.  

The Court pointed out that the procedural due process clause imposes constraints on governmental decisions which deprive individuals of liberty or property interests.  In fact, the Supreme Court of the United States has previously held that procedural due process rights had to be met when the state seeks to revoke an individual’s professional license.  The Appeals Court determined that when the interests at stake were more substantial than just loss of money, a higher evidentiary standard should generally be applied.  The Appeals Court noted that the revocation of a physician’s license by the Board could affect the physician’s ability to earn a living.  In addition, the Court recognized that our society places a great value on a physician’s personal reputation.  Therefore, if the Board brings disciplinary proceedings against a physician which could result in the revocation of their medical license, the physician’s interests are of an “enormous magnitude.” 

The Board argued that applying a higher evidentiary standard would make it difficult for the Board to discipline wrongful conduct.  The Court found that the risk of wrongfully restricting a physician’s right to practice medicine outweighed the risk of possible harm to the state an increased burden of proof might pose.  The Court explained that this heightened evidentiary burden imposed a very limited administrative burden on the Board.  Furthermore, the Court pointed out that society had a legitimate interest in the continued services provided by qualified doctors.  Overall, the Court held that the physician’s interest in the outcome of the professional disciplinary proceedings were of such gravity that due process required an evidentiary burden of clear and convincing evidence.          

In reviewing the Board’s decision, the Court found that it was unclear which burden of proof the Board actually applied when conducting the administrative hearings. In light of the South Carolina Appeal’s Court’s decision, physicians facing disciplinary proceedings need to be fully aware of the level of proof required at administrative disciplinary hearings.  The physicians should specifically request a clear and convincing evidentiary standard at the beginning of the administrative hearings to protect their due process rights under the Constitution, and to ensure that this standard is in fact applied. 


State Licensing Board

by Attorney Frank E. Reardon

October 1999