Island Packet Online: High court to take up medical record petition

The South Carolina Supreme Court has agreed to decide whether sealed records in disciplinary cases involving Dr. James D. Johnston of Hilton Head Island should be opened.

The high court announced late last week that it would hear the case in its "original jurisdiction" -- an extraordinary move meaning the case vaults directly to the Supreme Court without being heard first in lower courts.

The Island Packet asked the court Sept. 17 to hear the case immediately because it involved a matter of extreme public importance -- the right of patients to know about professional misconduct by a doctor. The Packet is challenging an order issued by Chief Administrative Law Judge Marvin F. Kittrell in 2001 that sealed all records and gagged all parties involved in disciplinary proceedings against Johnston.

"It's highly unusual for the Supreme Court to take a case on original jurisdiction," said Carl Muller, a Greenville lawyer who is representing The Packet. "The Supreme Court usually doesn't get a case until the issues have been hammered out in lower courts. In this instance the court recognizes that the issues are extraordinarily important -- of overwhelming public importance."

The court said it would consider two issues in the case:

Whether it was proper for Kittrell to seal court records in Johnston's cases. Previous court rulings have established that "judicial records can be sealed only in the most compelling circumstances and only when a specific finding is made on the record, in open court, as to why the record has to be sealed," Muller said.

Whether the Administrative Law Court, a judicial forum that reviews rulings made by state regulatory agencies, over-reached its authority when it overturned orders issued by the state Board of Medical Examiners against Johnston.

"It's a checks-and-balances issue," Muller said.

The medical board thinks Kittrell did go too far. In court papers it has filed with the Supreme Court, the board said the Administrative Law Court "must not be used to micromanage the (medical) board."

The medical board also said its disciplinary orders against doctors should be public. "It is an important matter of public policy that the board be allowed to publish suspensions (of doctors' licenses) ... so that patients and potential patients and other health care providers will be aware of the suspensions," the board states in its filing.

Johnston's lawyers -- agreeing with Kittrell -- argue that the medical board's disciplinary actions against Johnston should be confidential.

Neither Johnston nor his attorneys could be contacted Monday.

In 2001, after learning that Johnston had been arrested several times on alcohol-related driving charges, the medical board suspended his license to practice and ordered him to be evaluated for alcohol abuse. Kittrell reinstated Johnston's license, however, and ruled that the doctor didn't have to be evaluated. Then Kittrell clamped a lid of secrecy on the case that has been in place for three years.

Johnston found himself in trouble again in March when an emergency room nurse at Hilton Head Regional Medical Center claimed he was intoxicated when he came into the hospital to treat an elderly heart-attack patient. The hospital temporarily suspended Johnston's privileges, but reinstated him 11 days later.

The emergency room incident also prompted the medical board to suspend Johnston's license to practice in May. The medical board lifted the suspension in June after Johnston agreed to be evaluated and treated for alcohol abuse.

New problems for Johnston arose Oct. 14, when a federal grand jury in Charleston indicted him, charging him with posing as an American citizen when he actually is a Canadian citizen. The next day, Oct. 15, his privileges to practice at Hilton Head Regional Medical Center were suspended. The hospital has refused to say why.

Despite the criminal charges against Johnston and his loss of hospital privileges, the Board of Medical Examiners does not appear to have taken any further disciplinary action -- or has not made such action public. On Monday, more than 10 days after Johnston's indictment and his loss of hospital privileges, the medical board's Web site pronounced him "in good standing," stating no disciplinary action has been taken.

As a result of Kittrell's gag order, the medical board has refused to make public details on actions involving Johnston. After the medical board received a letter from the hospital Wednesday stating that Johnston's privileges had been taken away, medical board officials said they could not acknowledge it publicly.

Johnston's first hearing on the federal citizenship charge is scheduled for Thursday morning before a federal magistrate, Judge George C. Kosko, in Charleston.

	HILTON HEAD ISLAND - BLUFFTON S.C. Southern Beaufort County's News & Information Source