The court heard arguments in a case brought by The Island Packet that stems from several allegations of alcohol abuse against Dr. James D. Johnston, a Hilton Head Island cardiologist. From 2001 to 2004, the state Board of Medical Examiners issued a series of disciplinary sanctions against Johnston, but some of the medical board's actions were overturned after Johnston appealed to the Administrative Law Court.
The Administrative Law Court, however, prevented the press and the public from attending its hearings on Johnston's appeals, ordered participants not to discuss what occurred during the hearings, and didn't issue any orders explaining why it closed the hearings.
The Packet contends that Chief Administrative Law Court Judge Marvin Kittrell, who handled most of Johnston's cases, erred because the state Constitution requires that "all courts shall be open."
The case -- described by Chief Justice Jean Toal as "significant for the state of South Carolina" -- is expected to shed light on whether the Administrative Law Court is permitted to handle physician disciplinary cases like Johnston's in secret, and if so, whether an administrative law judge must explain in a written order why secrecy is necessary.
In other courts in South Carolina, judges are allowed to close proceedings only in "drastic" circumstances. In those instances, judges must issue written orders justifying closure.
Overarching the legal arguments in the case is another issue: the public's interest in knowing whether a doctor is fit to practice versus a doctor's concern that allegations which may turn out to be unsubstantiated could be career-damaging. Toal noted at one point during the arguments that Johnston alternately has been declared fit to practice and then unfit -- depending on the latest twist in the case.
The Board of Medical Examiners is required by law to handle allegations of physician misconduct confidentially until it checks them out. If the board finds allegations have merit, it usually suspends the doctor's license to practice, pending further investigation and a final decision on the doctor's fitness. At the same time, the medical board also publicly announces that the doctor's license has been suspended so patients are aware of the problem.
In recent years, however, doctors have begun challenging the medical board's actions by appealing to the Administrative Law Court. Johnston did exactly that -- twice in 2001 and once last year after he was suspected of being impaired when an elderly man arrived at Hilton Head Regional Medical Center suffering from heart failure. On each occasion, Administrative Law Court judges reinstated Johnston's license and ordered records in the cases sealed and anyone involved not to speak about them.
Kittrell "repeatedly acted to throw a blanket of secrecy" over disciplinary proceedings involving Johnston despite the constitution's requirement that courts must be open, John Moylan, a lawyer for The Packet, told justices Tuesday.
Some justices, including Toal, questioned whether the Administrative Law Court had to operate openly like other courts. She said it is part of the executive branch of state government, not the judicial branch.
The Administrative Law Court was set up under the executive branch in the 1990s. The court's purpose is to settle cases in which a state agency's decisions are disputed -- in this case the Board of Medical Examiners' disciplinary actions against Johnston.
Kittrell's lawyer, Camden Lewis, said there was "no question" that the Administrative Law Court "is not a court" in the generally understood sense of the term. Therefore, he said, it is not required to adhere to same openness requirements as other courts.
Lawyers for The Packet said it didn't matter whether the Administrative Law Court was under the executive or the judicial branch -- it still had to function openly. If it's under the executive branch, the state's Freedom of Information Act requires it to be open; if it's under the judicial branch, the state constitution requires openness, said Jay Bender, another attorney for the newspaper.
Toal questioned whether the law requiring proceedings before the medical board to be secret also extends to the Administrative Law Court when a case moves forward on appeal.
Lewis said cases had to be handled confidentially in both venues. When Johnston's cases got to Kittrell's court, he was bound by the same secrecy requirements as those governing the medical board, Lewis said.
Lewis said it was a "silly proposition" to suggest that disciplinary cases lose their confidentiality once they get to the Administrative Law Court.
"That cannot be ..." Lewis said. "That does not make any sense whatsoever."
Toal commented that the logic of having such cases open once they get to the Administrative Law Court would be "to protect the public" against a doctor who has problems.
The Supreme Court is expected to issue a ruling on the case within the next few months.
At the same time the case is being considered by the high court, the state legislature is expected to consider two measures aimed at making physician-discipline cases more open. One bill is being pushed by the Board of Medical Examiners and the other is being drafted by the S.C. Press Association, an organization whose members include many of the state's daily and weekly newspapers.