July 16, 1985

Mr. John H. Zimmer 
Attorney for South Dakota State Board of Medical and Osteopathic Examiners 
Post Office Box 547 
Parker, South Dakota 57053-0547

OFFICIAL OPINION NO. 85-30

Reporting requirements to the Board of Medical and Osteopathic Examiners

Dear Mr. Zimmer:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS:

SDCL 36-4-22.2 provides: 

Every facility licensed by the state where medicine is practiced which suspends or revokes the privilege of a licensee of the board of medical and osteopathic examiners to practice medicine therein for incompetence or unprofessional conduct as defined in this chapter shall report it in writing to the board including the factual basis of such revocation or suspension. Any report made to the board pursuant to this section shall be confidential and subject to the same restrictions set forth in §  36-4-31.1 as evidence taken by the board on cancellation, revocation, suspension or limitation proceedings.  A licensed facility, complying in good faith with this section, may not be held liable for any injury or damage proximately resulting from such compliance.

SDCL 36-4-32 sets forth: 

In case any person holding a license to practice medicine or osteopathic medicine, surgery and obstetrics shall by any final order or adjudication of any court of competent jurisdiction be adjudged to be mentally incompetent or insane, his license shall be suspended by the board after proceedings in compliance with chapter 1-26, and anything in this chapter to the contrary notwithstanding, such suspension shall continue until the licensee is found  or adjudged by such court to be restored to reason or until he is duly discharged as restored to reason in any other manner provided by law and has appeared before the board at a regular or special meeting of the board to apply for such reinstatement.  The board may, in its discretion, establish such probationary conditions it deems necessary for the best interests of licensee.

Based on the above facts, you have asked the following question:

QUESTION: 

Must a state-licensed facility report a suspension of the privilege to practice medicine when said suspension is based on general incompetence, or do the above-cited statutes limit the reporting requirements to mental incompetence evidenced by a final order or adjudication of a court.

To answer your question, we must examine the phrase 'for incompetence or unprofessional conduct as defined in this chapter.' The issue, in essence, is whether 'as defined in this chapter' applies to 'incompetence.'

A comma separating a modifying clause in a statute from the immediately preceding clause is an indication that the modifying clause was intended to modify all the preceding clauses and not only the last antecedent one. State v. Galiti, ---- N.W.2d ---- (Opinion No. 14631).  It follows, then,  that the lack of a comma indicates a modifying clause was intended to modify only the clause immediately preceding.  Indeed, 'it is the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation.' Lewis v. Annie Creek Mining Co., 48 N.W.2d 815, 819 (S.D. 1951).

Modifying phrases or clauses should be referred to the word, phrase, or clause with which they are grammatically connected. Equal Employment Opportunity Com'n. v. Brotherhood of Painters, etc., 384 F.Supp. 1264, 1266 (D.C.S.D. 1974).  In this case, the following sentence was construed. 

The person . . . aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney General in a case involving a government, governmental agency, or political subdivision.  (Emphasis added.)

Quoting the principle noted above, Judge Nichol held that the clause 'in a case involving a government . . .' referred only to cases brought by the Attorney General.  The clause did not apply to 'the Commission,' he reasoned, because said clause was not grammatically connected thereto.  Id.

Based on the foregoing, it is my opinion that the clause 'as defined in this chapter' of SDCL 36-4-22.2 refers only to 'unprofessional conduct.' Therefore, the statute requires that a suspension of privileges for any type of  incompetence be reported to the Board.  This, in my opinion, conforms to the spirit and purpose of the statute.

Respectfully submitted,

Mark V. Meierhenry
Attorney General