August 15, 1988
Mr. Charvin Dixon
In-House Legal Counsel
State Board of Medical and Osteopathic Examiners
608 W. Avenue North
Sioux Falls, South Dakota 57104
Official Opinion No. 88-37
Scope of Authority of State Board of Medical and Osteopathic Examiners
Dear Mr. Dixon:
You have requested an opinion based upon the following factual situation:
FACTS:
A certain physician, duly licensed by the State Board of Medical and Osteopathic Examiners (Board), advertised the opening of certain clerical positions within his clinic. During job interviews with two perspective female employees, the physician made sexual advances. Neither case involved sexual intercourse; however, in both cases the physician engaged in unwanted physical contact. In one instance, the doctor merely patted the lady's knee. In the other instance, though, the physician continually tried to kiss the young lady, touch her, and make her move closer to him during the interview. In both cases, the thrust of the doctor's questioning was sexually oriented rather than employment related.
In addition, the same physician has forced himself upon one of his patients. The sexual abuse in this case included penetration. According to the victim, this first took place shortly before she was to undergo surgery. Apparently, the victim had agreed to meet the doctor outside his office to discuss the imminent surgery. During this meeting, the doctor forced himself upon the victim for the first of many times. Subsequent incidences of sexual contact occurred in the physician's office.
Regarding allegations of professional incompetence, it has been alleged that certain medical procedures performed by the doctor have been unnecessary. The Board, however, has had great difficulty in obtaining necessary patient medical records to confirm the allegations.
Based upon these facts, you have asked the following questions:
QUESTIONS:
1. Whether the physician has committed an act of unprofessional or dishonorable conduct, as defined by SDCL 36-4-30, by sexually harassing prospective employees?
2. Whether the physician has committed an act of unprofessional or dishonorable conduct, as defined by SDCL 36-4-30, by sexually harassing and having sex with a patient?
3. Whether the physician has been grossly incompetent, as required by SDCL 36-4-29, by having sexual relations with a patient?
4. With respect to the allegation of professional incompetence, whether SDCL 36-4-22.1 confers authority upon the Board and its agents to obtain patients' medical records from facilities where medicine or osteopathy are practiced?
IN RE QUESTIONS NO. 1 THROUGH NO. 3:
Introduction
In my opinion, making sexual advances toward prospective employees and having sex with a patient would constitute "unprofessional or dishonorable conduct" in the ordinary sense of the phrase. See In re Cutshaw, 432 P.2d 474 (Ariz. 1967); Texas State Board of Medical Examiners v. Koepsel, 322 S.W.2d 609 (Tex. 1959); Clark v. Michigan State Board of Registration in Medicine, 116 N.W.2d 797 (Mich. 1962). Your question, however, is whether such behavior will continue to constitute "unprofessional or dishonorable conduct" in light of the exclusion of the specific behavior you have described from statutory enumerations defining the quoted phrase.
Statutory Construction:
I am well aware of the rule that express mention in a statute may imply the exclusion of other things. See State v. Three I.S.O.-Devices, etc., 296 N.W.2d 510, 512 (S.D. 1980); 1st American Systems, Inc. v. Rezatto, 311 N.W.2d 51, 55 (S.D. 1981); Application of Trade Development Bank, 382 N.W.2d 47, 50 (S.D. 1986). This rule, however, is neither universally applicable nor conclusive as to the meaning of a statute. It does not constitute a formula for construction to be arbitrarily applied. Rather, the rule is subject to exceptions. It must yield whenever a contrary intention on behalf of the lawmaker is apparent. Argo Oil Corporation v. Lathrop, 72 N.W.2d 431, 434 (S.D. 1955); Rehurek v. Rapid City, 275 N.W. 859 (S.D. 1937). "[T]he rule of express mention and implied exclusion should never be applied to defeat a plain legislative purpose." Application of Livestock State Bank, Artesian, 252 N.W.2d 227, 229 (S.D. 1977), quoting Rehurek v. Rapid City, supra.
To determine the legislative purpose, we may consider the statutes together, as a whole. See id. Where a statute consists of both a grant of power enumerating certain things which may be done and also a general grant of power which, standing alone, would include those things and more, the general grant may be given full effect if the context shows that the enumeration was not intended to be exclusive. Argo Oil Corporation v. Lathrop, 72 N.W.2d at 434.
With these principles in mind, I direct my attention to Questions 1 through 3.
The Legislature armed the Board with a general grant of power through SDCL 36-4-29. Standing alone, that statute authorizes the Board to cancel, revoke, suspend, or limit the license of any physician upon satisfactory proof of the licensee's unprofessional or dishonorable conduct. The purpose of such a statute is to protect the public and secure for the people the services of competent, proper, and trustworthy practitioners. It takes no legal sophistry to conclude that such a noble purpose would be rendered a complete nullity if the behavior as set forth in your fact pattern were to be condoned. Thus, it is apparent that the Legislature did not intend SDCL 36-4-30 to constitute an exclusive list of actions amounting to unprofessional or dishonorable conduct. See also Kansas State Board of Healing Arts v. Foote, 436 P.2d 828, 833 (Kan. 1968) (Held: It would be difficult, not to say impractical, in carrying out the purpose of the act, for the Legislature to list each and every specific act or course of conduct which might constitute unprofessional conduct of a disqualifying nature). In turn, the general grant of power provided by SDCL 36-4-29 should be given full effect.
Definition of "Include:"
The definition of "include" itself supports the conclusion that SDCL 36-4-30 is not an exhaustive list. The word "include" of and by itself cannot determine intent to the exclusion of all other words to which it refers. Surowitz v. City of Pontiac, 132 N.W.2d 628, 633 (Mich. 1965). To the contrary, it is ordinarily considered a word of enlargement rather than limitation. Federal Land Bank v. Bismarck Co., 314 U.S. 95, 100, 62 S.Ct. 1, 4, 86 L.Ed.2d 65 (1941); Lucke v. Lucke, 300 N.W.2d 231, 234 (N.D. 1980); 42 C.J.S. Include, at 525; 20A Words and Phrases, Include, at 144.
[T]he term "including" is not one of all-embracing definition, but connotes simply an illustrative application of the general principles.
Argo Oil Company v. Lathrop, 72 N.W.2d at 434, quoting Federal Land Bank v. Bismarck Lumber Co., 314 U.S. at 100. To hold otherwise under the facts as you have presented them would defy logic.
Conclusion:
Based on the above, it is my opinion that a determination by common judgment whether certain conduct is disqualifying should be left to the sound discretion of the Board. As such, the answers to Questions 1 and 2 are that the Board is not limited by SDCL 36-4-30 in determining whether the behavior you describe constitutes "unprofessional or dishonorable conduct" under SDCL 36-4-29. Assuming that the Board does arrive at such a conclusion, I believe Question 3 is superfluous.
IN RE QUESTION NO. 4:
Introduction:
Initially, Question 4 strikes me as one involving an issue of privileged communications. Following further discussion with you, however, I am assuming for the purposes of this opinion that the physician/patient relationship is of secondary concern and will be dealt with on a case-by-case basis.
Scope of the Board's Inspections:
In my opinion, SDCL 36-4-22.1 does not limit the scope of the Board's inspections to records and inventories relating to drugs and controlled substances. As previously stated, the fact that an inspection may "include" examination of drug records and inventories does not ipso facto exclude all other inspections. The question remains, however, whether or not the Legislature intended the scope of the Board's inspection to encompass medical records.
The Board is vested with the power to inspect for the purpose of enforcing SDCL ch. 36-4. SDCL 36-4-22.1. Falsifying the medical records of a patient will subject a practitioner to possible licensure sanctions. SDCL 36-4-30(14) and SDCL 36-4-29. I cannot envision how such misfeasance could be effectively policed with any vehicle other than access to and inspection of the medical records themselves. Thus, even though medical records are not expressly mentioned in the statute, inspection of said records are necessarily implied and reasonably necessary to effectuate the powers granted to the Board. See Application of Kohlman, 263 N.W.2d 674, 678 (S.D. 1978). Reading the statutes as a whole, I am of the opinion that the Legislature intended to include medical records within the scope of the Board's investigatory authority. As such, the answer to Question 4 is yes.
Administrative Search Warrants:
As a parting note, I would offer a suggestion. Considering the obvious ambiguity which results from the language of SDCL 36‑4‑22.1, you may want to consider obtaining an administrative search warrant to search and seize the records at issue. For a good review of the law in this area, see Professor Davis' discussion in Kenneth Culp Davis, Administrative Law Treatise, § 4:7 (K.C. Davis, 2d Ed., 1978).
Respectfully submitted,
Roger A. Tellinghuisen
Attorney General
