Can the South Dakota State Board of Medical and Osteopathic Examiners discipline a physician for sexually harassing prospective employees and having sex with a patient, even though SDCL 36-4-30 does not specifically list those behaviors? And can the Board's investigators access patient medical records under SDCL 36-4-22.1, which only specifically mentions drug records?
Plain-English summary
A South Dakota physician was alleged to have sexually harassed prospective female employees during job interviews and to have sexually abused a patient (forcing himself on her in multiple incidents, including one tied to imminent surgery). There were also allegations of unnecessary medical procedures, but the Board could not get the medical records to confirm them. The State Board of Medical and Osteopathic Examiners asked the AG four questions.
Three questions addressed the same underlying point: was sexually harassing employees and sexually abusing patients "unprofessional or dishonorable conduct" under SDCL 36-4-29 even though that exact behavior was not on the SDCL 36-4-30 list of specific examples?
Tellinghuisen's answer was yes. He acknowledged the expressio unius est exclusio alterius principle (express mention implies exclusion of other things, recognized in South Dakota by cases like State v. Three I.S.O.-Devices and Application of Trade Development Bank). But that principle is not absolute. It "must yield whenever a contrary intention on behalf of the lawmaker is apparent," per Argo Oil v. Lathrop and Application of Livestock State Bank, Artesian. The legislative purpose of the medical licensure statutes is to protect the public by securing competent, proper, trustworthy practitioners. Treating the SDCL 36-4-30 list as exclusive would defeat that purpose because no list could possibly enumerate every form of unprofessional conduct.
Tellinghuisen also relied on the word "include" itself. The Michigan court in Surowitz v. City of Pontiac and the U.S. Supreme Court in Federal Land Bank v. Bismarck had held that "include" is ordinarily a word of enlargement, not limitation. The Kansas court in Foote had specifically held that medical boards cannot reasonably be expected to operate with exhaustive statutory lists of every disqualifying behavior. The SDCL 36-4-29 general grant of authority should be given full effect.
Applied to the facts: making sexual advances toward prospective employees was unprofessional. Having sex with a patient was unprofessional. The Board could discipline the physician for both, and a separate "gross incompetence" analysis under SDCL 36-4-29 was superfluous.
The fourth question was about inspecting medical records. SDCL 36-4-22.1 expressly authorized the Board to inspect records and inventories for drugs and controlled substances. The question was whether that authority extended to patient medical records. Tellinghuisen said yes, on a related reasoning. Falsifying medical records is itself a disciplinary ground under SDCL 36-4-30(14). Effective enforcement against record-falsification requires the Board to be able to look at the records. Even though medical records were not expressly listed, inspection of them was necessarily implied. Application of Kohlman (S.D. 1978) supported the implied-powers analysis.
Tellinghuisen offered a practical suggestion: given the ambiguity, the Board might consider obtaining an administrative search warrant before seizing records. That would give cleaner constitutional cover than relying solely on the statutory implied power.
Currency note
This opinion was issued during AG Roger Tellinghuisen's tenure (1987-1991). Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. SDCL chapter 36-4 governing the medical board has been amended multiple times, and SDCL 36-4-30's list of specific examples of unprofessional conduct has expanded substantially since the 1980s. Modern questions about medical board jurisdiction over physician misconduct, administrative search warrants, and patient records access should be verified against current statute, current South Dakota Supreme Court case law, and any applicable Medical Board rules.
What the opinion meant at the time
For the Medical Board, the opinion confirmed substantial enforcement authority. The Board could pursue discipline for behavior not specifically listed in SDCL 36-4-30 as long as that behavior reasonably qualified as "unprofessional or dishonorable conduct."
For physicians, the opinion was a warning that the "if it's not on the list, it's fine" reading of SDCL 36-4-30 was wrong. The general grant of authority in SDCL 36-4-29 covered a broader range of misconduct.
For patients and prospective employees of physicians, the opinion meant that sexual misconduct by a physician was actionable through the licensing process even where criminal charges might be hard to pursue. The licensing remedy (loss or restriction of license) was a real consequence.
For Board investigators, the opinion blessed access to patient medical records as part of the investigation. The administrative-search-warrant suggestion provided a procedural cushion against challenges.
Common questions
Q: Could the Board revoke the physician's license based on these allegations?
A: Yes. SDCL 36-4-29 authorized the Board to "cancel, revoke, suspend, or limit the license" upon satisfactory proof of unprofessional or dishonorable conduct. Discipline could range from formal reprimand to full revocation depending on the proof and the Board's judgment.
Q: What is "expressio unius est exclusio alterius"?
A: A Latin phrase meaning that the express mention of one thing in a statute implies the exclusion of other unmentioned things. It's a recognized canon of statutory construction but is not absolute; it yields to contrary legislative intent.
Q: Why isn't SDCL 36-4-30 exclusive?
A: Because the legislative purpose (public protection) would be defeated if the Board could only act on listed conduct. The opinion treated the list as illustrative examples of unprofessional conduct rather than as the complete universe of misconduct.
Q: What is an administrative search warrant?
A: A court-issued warrant authorizing administrative inspection of records or premises. It satisfies the Fourth Amendment when the search is regulatory rather than criminal. The opinion suggested the Board use this procedural tool to inspect medical records, especially given the ambiguity around statutory authorization.
Q: Does the physician-patient privilege block access?
A: Tellinghuisen flagged the privileged-communications question but did not resolve it. He noted that the Board's request would be handled on a case-by-case basis with privilege issues considered as they arose.
Q: Could the physician sue the Board for accessing records?
A: The opinion did not address that procedural question. As a practical matter, if the Board's access was authorized by an administrative search warrant, the legal foundation would be solid. Without a warrant, the physician could potentially challenge the access in court.
Background and statutory framework
State medical licensing boards operate under broad authority because medical practice raises public-safety concerns that justify ongoing oversight. The two-track structure of SDCL 36-4-29 (general grant) and 36-4-30 (specific examples) is a common pattern: the general grant provides flexibility; the specific examples provide guidance and notice.
The interpretive question is whether the specific examples narrow the general grant or merely illustrate it. The dominant approach across states is that specific examples illustrate, not limit. Cases like Foote (Kansas), Cutshaw (Arizona), Koepsel (Texas), and Clark (Michigan) all reached the same conclusion. Tellinghuisen's opinion aligned with the national consensus.
The record-inspection question is structurally similar. SDCL 36-4-22.1's authorization to inspect drug records is one part of a broader Board investigative power. Without the ability to inspect underlying medical records, the Board could not enforce statutes that depend on patient-record integrity (like the prohibition on falsified records in SDCL 36-4-30(14)). The implied-powers doctrine (recognized in Kohlman) extends authority where necessary to make the express grant effective.
The administrative-search-warrant suggestion reflects a Fourth Amendment background principle. Administrative agencies generally cannot compel access to private records without either a court order or established consent or exigent circumstances. By recommending the warrant route, Tellinghuisen offered a path that would minimize constitutional risk.
Citations and references
Statutes:
- SDCL 36-4-22.1 (Board inspection authority)
- SDCL 36-4-29 (unprofessional or dishonorable conduct as discipline ground)
- SDCL 36-4-30 (specific enumerations of unprofessional conduct)
Cases (selected):
- 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)
- Argo Oil Corporation v. Lathrop, 72 N.W.2d 431 (S.D. 1955)
- Kansas State Board of Healing Arts v. Foote, 436 P.2d 828 (Kan. 1968)
- Federal Land Bank v. Bismarck Co., 314 U.S. 95 (1941)
- Application of Kohlman, 263 N.W.2d 674 (S.D. 1978)
Source
Original opinion text
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:
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Whether the physician has committed an act of unprofessional or dishonorable conduct, as defined by SDCL 36-4-30, by sexually harassing prospective employees?
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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?
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Whether the physician has been grossly incompetent, as required by SDCL 36-4-29, by having sexual relations with a patient?
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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