Brownlee v. State Med. Bd. , 2013 Ohio 4989 ( 2013 )

[Cite as Brownlee v. State Med. Bd., 2013-Ohio-4989.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
John David Brownlee, M.D., :
Appellant-Appellant, :
No. 13AP-239
v. : (C.P.C. No. 12CV-13607)
State Medical Board of Ohio, : (REGULAR CALENDAR)
Appellee-Appellee. :
D E C I S I O N
Rendered on November 12, 2013
Graff & McGovern, LPA, Douglas E. Graff and Levi T. Tkach,
for appellant.
Michael DeWine, Attorney General, and Henry G. Appel, for
appellee.
APPEAL from the Franklin County Court of Common Pleas
T. BRYANT, J.
{¶ 1} Appellant, John David Brownlee, M.D., appeals from a judgment of the
Franklin County Court of Common Pleas affirming the order of appellee, State Medical
Board of Ohio (the "Board"), permanently revoking appellant's certificate to practice
allopathic medicine and surgery in the state of Ohio. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The record reflects that appellant obtained his license to practice medicine
and surgery in 1998. In 2006, appellant was prescribed Vicodin following an elbow
surgery, after which he began self-prescribing Vicodin. Appellant eventually started
writing Percocet prescriptions in the names of fictitious patients in order to obtain
Percocet for his own use. He also wrote prescriptions using the names and DEA numbers
No. 13AP-239 2
of other physicians without their consent. Criminal charges resulted, and appellant
entered inpatient treatment for opiate dependence in September 2006.1
{¶ 3} In October 2006, appellant entered into a Step I Consent Agreement with
the Board under which his license to practice medicine was suspended. Appellant
admitted that his drug of choice was Percocet. He further admitted that he was impaired
in his ability to practice according to acceptable and prevailing standards of care due to
the habitual and excessive use or abuse of drugs.
{¶ 4} In August 2007, appellant entered into a Step II Consent Agreement with
the Board under which his license to practice was reinstated pursuant to a minimum of
five years of probation. That agreement explained that appellant had previously pled
guilty to deception to obtain a dangerous drug, in violation of R.C. 2925.22, and illegal
possessing of drug documents, in violation of R.C. 2925.23, both felonies. As a result,
appellant was ordered into treatment in lieu of conviction. The agreement also confirmed
appellant had completed 28 days of inpatient treatment for opiate dependence in October
2006.
{¶ 5} The probationary terms of that agreement required, among other things,
random urine screens for drugs and alcohol, regular attendance at rehabilitation
meetings, quarterly probationary meetings with the Board or a Board representative, and
quarterly filings regarding appellant's compliance with the Board's monitoring program.
Appellant was also required to have a Board-approved physician monitor his practice of
medicine and review his patient charts. He was further obligated to obey all federal, state,
and local laws, as well as all rules governing the practice of medicine in Ohio. Appellant
was required to completely abstain from the use of alcohol and the personal use or
possession of drugs, except for those appropriately prescribed to him by someone with full
knowledge of his history of chemical dependence.
{¶ 6} On July 13, 2011, while the 2007 consent agreement was still in effect, the
Board issued appellant a notice of opportunity for a hearing informing him that the Board
1 The record also indicates that appellant had substance abuse issues that required treatment in 1993 and
1994. As a result, in 1998, he entered into a consent agreement with the Board regarding restrictions on his
license for a minimum of three years. However, the trial court did not discuss these prior instances, and
given the passage of time between the instances and appellant's 2006 relapse, we will not discuss them in
detail either.
No. 13AP-239 3
proposed to take disciplinary action against his medical license. The Board's allegations
included the following:
 Dr. Brownlee entered into a Step II Consent Agreement
with the Board in 2007, based on his impairment due to drug
use, his relapse on Percocet in 2006, and his guilty pleas to
criminal charges regarding falsification of prescriptions in
order to obtain Percocet; and
 [I]n 2010, Dr. Brownlee inappropriately obtained
prescriptions for Vicodin and Percocet by asking resident
physicians under his supervision to write or call in
prescriptions for a person who is Dr. Brownlee's relative.
(R. 39, at 44.) The Board further alleged that: (1) appellant engaged in the felony of
deception to obtain a dangerous drug; (2) he violated the limitations placed on his license;
(3) he violated or assisted another in violating a Board rule by utilizing controlled
substances for a family member; and (4) he violated or assisted another in violating a
Board rule by prescribing to persons not seen by the physician.
{¶ 7} Appellant requested a hearing, which was held from December 6 to
December 8, 2011. Following the hearing, the Board's hearing examiner issued a 56-page
report and recommendation ("R&R") including findings of fact and conclusions of law.
One notable finding of fact was:
In his sworn answers to the Board's interrogatories, Dr.
Brownlee admitted that on eight occasions, he had requested
resident physicians to provide prescriptions to Patient 1, for
either Percocet or Vicodin, without the residents having
personally, physically examined and diagnosed Patient 1, and
he further identified five residents who had provided these
prescriptions upon his request. During the hearing, Dr.
Brownlee testified that he had unintentionally omitted two
additional prescriptions he had requested from physicians
who had not personally examined Patient 1, and these
prescriptions were for hydrocodone with acetaminophen.
(Patient 1 is appellant's family member.) (R. 39, at 196-97.)
{¶ 8} The Board considered the R&R at its October 10, 2012 meeting and, after
amending one of the conclusions of law, adopted the R&R and entered an order
permanently revoking appellant's certificate to practice allopathic medicine and surgery
No. 13AP-239 4
in the state of Ohio. The Board found that appellant engaged in the four numbered
offenses above.
{¶ 9} These conclusions were based on incidents that occurred from March to
May 2010 while appellant was an attending physician and director of the Surgical
Intensive Care Unit at Huron Hospital, which is part of the Cleveland Clinic Foundation
("CCF"). As part of his duties, appellant oversaw and directed the work of subordinate
resident physicians.
{¶ 10} Appellant claimed that Patient 1 was suffering from severe and debilitating
migraine headaches during that time, and he asked resident physicians to write her
prescriptions for pain medication to treat the migraines. However, testimony at the
hearing from six residents revealed that appellant did not mention migraine headaches.
Instead, he gave a variety of deceptive reasons in order to obtain narcotics for Patient 1.
{¶ 11} Specifically, the hearing examiner found that, on March 6, 2010, appellant
asked a resident under his supervision to prescribe pain medication for Patient 1 because
she was experiencing symptoms of a urinary tract infection. The resident complied and
called in a prescription for Vicodin. On March 12, 2010, appellant asked a second resident
under his supervision to write a prescription for Percocet for Patient 1 because she had a
twisted ankle. The resident complied. On April 2, 2010, appellant asked another
resident to write a prescription for Patient 1, describing her as a patient on whom he had
recently performed surgery. The resident wrote a prescription for Percocet. On April 8,
2010, appellant asked another resident to write a prescription for a surgical patient who
was meeting him at the hospital. The resident complied and wrote a prescription for
Percocet in the name appellant provided, which was Patient 1's name before she filed a
formal name change in 2009. On May 13, 2010, appellant asked another resident under
his supervision to write a prescription for Percocet for a relative because she had a sinus
infection and back pain. The resident complied. On May 17, 2010, appellant asked
another resident to write a prescription for Patient 1. After providing Patient 1's name,
appellant commented, "not that [Patient 1's name]." (Emphasis sic.) (R. 39, at 96.) The
resident complied and wrote a prescription for Percocet.
{¶ 12} Based on these findings, appellant's status under the 2007 consent
agreement, and appellant's admissions in his answers to the Board's interrogatories and
No. 13AP-239 5
at the hearing, the Board's hearing examiner proposed an order permanently revoking
appellant's license to practice medicine and surgery.
{¶ 13} The hearing examiner added credibility determinations as well, stating in
part:
The Hearing Examiner generally believed the testimony of the
residents. Although there were some discrepancies in their
testimony, particularly some inconsistencies between what
was recalled in July 2010 affidavits and what was recalled
during the December 2011 hearing, the discrepencies were
found to be relatively minor, and the final testimony at the
hearing was found to be credible in the crucial areas.
If there had been one resident contradicting Dr. Brownlee's
testimony, there might have been a question of which
individual was more credible, but, here, Dr. Brownlee's
testimony was contradicted by five witnesses whose demeanor
and tone indicated trustworthiness and whose trestimony was
more consistent with other evidence as a whole.
***
The Hearing Examiner has no doubt whatsoever that Dr.
Brownlee lied repeatedly during the hearing. The Hearing
Examiner is convinced that Dr. Brownlee repeatedly
misrepresented facts to the residents in order to get them to
provide the prescriptions for opioids that he wanted. Rarely
has a witness' tone, facial expression, and demeanor so
transparently signaled a lack of credibility. In addition, his
testimony was inconsistent with other evidence that was
found to be credible, and at times his testimony was internally
inconsistent.
Patient 1's testimony was unreliable in several crucial areas of
testimony. She changed her answers repeatedly. At times she
was noncommittal and evasive. Her tone, facial expression,
and demeanor made clear that she was anxiously trying to say
whatever she thought might help Dr. Brownlee and make her
own behavior seem justifiable.
(R. 39, at 75-76.)
{¶ 14} As stated above, the hearing examiner's R&R was adopted by the Board on
October 10, 2012, and appellant's license to practice medicine and surgery was
permanently revoked.
No. 13AP-239 6
{¶ 15} In accordance with R.C. 119.12, appellant appealed the Board's order to the
Franklin County Court of Common Pleas on October 29, 2012. Appellant alleged the
order was not supported by reliable, probative, and substantial evidence and that it was in
contravention of law. He assigned the following errors: (1) "[t]he Order was not based
upon reliable, probative, and substantial evidence because the Board's witnesses lacked
credibility"; (2) "[t]he Order of permanent revocation constitutes disparate treatment
against Dr. Brownlee violating the Americans with Disabilities Act"; (3) "[t]he Board
action and discipline against Dr. Brownlee constitutes selective enforcement"; and
(4) "Hearing Examiner refused to allow presentation of testimony by several Respondent
witnesses." (R. 70, at 3.) The trial court found all of appellant's assignments of error
lacked merit and overruled them on February 21, 2013. It is from that judgment appellant
appeals to this court.
II. ASSIGNMENTS OF ERROR
{¶ 16} Appellant presents the following assignments of error for our review:
First Assignment of Error: The common pleas court abused its
discretion when affirming an Order supported by unreliable
evidence.
Second Assignment of Error: The Common Pleas Court erred
by misapplying the doctrine of selective enforcement.
Third Assignment of Error: The Common Pleas Court Erred
as a matter of Law by misinterpreting the Board Rule on post-
commencement subpoenas.
III. STANDARDS OF REVIEW
{¶ 17} In an administrative appeal, pursuant to R.C. 119.12, the trial court reviews
an order to determine whether it is supported by reliable, probative, and substantial
evidence and is in accordance with law. Levine v. State Med. Bd. of Ohio, 10th Dist. No.
10AP-962, 2011-Ohio-3653, ¶ 12. In applying this standard, the trial court "must give due
deference to the administrative resolution of evidentiary conflicts." Univ. of Cincinnati v.
Conrad, 63 Ohio St.2d 108, 111 (1980).
{¶ 18} The Supreme Court of Ohio has defined the concepts of reliable, probative,
and substantial evidence as follows:
(1) "Reliable" evidence is dependable; that is, it can be
confidently trusted. In order to be reliable, there must be a
No. 13AP-239 7
reasonable probability that the evidence is true. (2)
"Probative" evidence is evidence that tends to prove the issue
in question; it must be relevant in determining the issue. (3)
"Substantial" evidence is evidence with some weight; it must
have importance and value.
(Footnotes deleted.) Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570,
571 (1992).
{¶ 19} On appeal to this court, the standard of review is more limited. Smith v.
State Med. Bd. of Ohio, 10th Dist. No. 12AP-234, 2012-Ohio-4423, ¶ 13. Unlike the trial
court, a court of appeals does not determine the weight of the evidence. Id., citing
Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn., 63 Ohio St.3d
705, 707 (1992). Furthermore, an appellate court must not substitute its judgment for that
of an administrative agency or a trial court absent the approved criteria for doing so.
Rossford Exempted at 707.
{¶ 20} In reviewing the court of common pleas' determination that the Board's
order was supported by reliable, probative, and substantial evidence, this court's role is
confined to determining whether the court of common pleas abused its discretion. Smith
at ¶ 13. An abuse of discretion occurs when a decision is unconscionable, unreasonable or
arbitrary. Weiss v. State Med. Bd. of Ohio, 1oth Dist. No. 13AP-281, 2013-Ohio-4215, ¶ 15.
However, on the question of whether the Board's order was in accordance with the law,
this court's review is plenary. Univ. of Cincinnati College of Medicine v. State Emp.
Relations Bd., 63 Ohio St.3d 339, 343 (1992).
IV. DISCUSSION
{¶ 21} Preliminarily, we note that appellant's arguments in his briefs stray from his
assignments of error. For example, while appellant's first assignment of error specifically
identifies reliability of the evidence as the issue, appellant also argues that the record lacks
substantial evidence supporting the Board's order. Additionally, it is unclear whether
appellant is making an independent claim pursuant to the Americans with Disabilities Act
("ADA"), or just relying on the ADA to buttress the selective enforcement claim that
appears in his second assignment of error. In any event, pursuant to App.R. 12(A)(1)(b),
an appellate court must " 'determine [an] appeal on its merits on the assignments of error
set forth in the briefs under App.R. 16.' Thus, this court rules on assignments of error
only, and will not address mere arguments." Ellinger v. Ho, 10th Dist. No. 08AP-1079,
No. 13AP-239 8
2010-Ohio-553, ¶ 70, quoting In re Estate of Taris, 10th Dist. No. 04AP-1264, 2005-
Ohio-1516, ¶ 5. Accordingly, we will address each of appellant's assignments of error as
written and disregard any extraneous arguments. Bonn v. Bonn, 10th Dist. No. 12AP-
1047, 2013-Ohio-2313, ¶ 9.
{¶ 22} Pursuant to his first assignment of error, appellant asserts that the Board's
order was not supported by reliable evidence; therefore, the trial court abused its
discretion in affirming the order. We disagree.
{¶ 23} Appellant focuses on the testimony of the resident physicians during the
hearing. He claims their testimony was unreliable because it conflicted with statements in
prior affidavits. He also claims the residents were "coached" by CCF prior to the hearing
and that counsel for CCF relentlessly objected during the hearing, which precluded
testimony by the residents that would have benefited appellant. (Appellant's brief, at 4.)
Finally, appellant contends that the testimony of Dr. Raphael Chung, appellant's
monitoring physician under the consent agreement, undermines the reliability of the
residents' affidavits and establishes that appellant is " 'not somebody who has exhibited
either psychological or behavioral evidence of relapse.' " (Appellant's brief, at 16, quoting
Tr. 122.) These assertions lack merit and/or fail to assist appellant in establishing an
abuse of discretion by the trial court.
{¶ 24} Appellant does not identify the inconsistencies between the residents' live
testimony and their affidavits, to which he refers in his briefs. Instead, he directs this
court to his trial court brief and his objections to the hearing examiner's R&R that appear
in the record. We have reviewed that brief and the objections, and we agree with the trial
court that the "inconsistencies were not significant, particularly in light of the appellant's
admissions," which we will discuss shortly. (R. 73, at 10.) Furthermore, the hearing
examiner and, in turn, the Board found that "the discrepancies were * * * relatively minor,
and the final testimony [of the residents] at the hearing was found to be credible in the
crucial areas." (R. 39, at 75.) Based on our independent review of the record, we conclude
that these findings are not arbitrary or unreasonable.
{¶ 25} We likewise do not find evidence that the residents were "coached" by CCF.
It is true that CCF conferred with the residents regarding the facts of this case prior to the
hearing. CCF was investigating appellant's behavior internally, which led to his
termination. It is not surprising, nor do we find it improper, that CCF would communicate
No. 13AP-239 9
with the same residents that the Board called as witnesses under these circumstances.
Furthermore, appellant subsequently sued CCF, and the hearing examiner made a ruling
that there was an attorney-client relationship between counsel for CCF, who was present
at the hearing, and at least one of the residents who was still employed by CCF.
Therefore, we do not find it odd or inappropriate that counsel for CCF conferred with the
residents leading up to the hearing. In any event, each resident physician that testified
did so under oath, and the hearing examiner found their testimony credible. We do not
find that CCF's interaction with the residents previous to the hearing undermines that
credibility determination.
{¶ 26} Appellant also alleges that counsel for CCF interposed so many objections
during the hearing that she impeded the flow of evidence, which was beneficial to
appellant, into the record. The Board counters this argument by identifying six objections
that CCF's counsel made during the three-day hearing. Appellant's response was to
identify two more speaking objections and two instances of alleged nonverbal
communication with the residents. We have examined these instances, and do not agree
with appellant that CCF's counsel's conduct was obstructive.
{¶ 27} Lastly, appellant's assertion about Dr. Chung undermining the reliability of
the resident's affidavits is inconsequential. The inconsistencies between the affidavits and
the residents' live testimony, as well as the value of that testimony, has already been
addressed. Additionally, Dr. Chung was not present during the interactions between
appellant and the residents, during which appellant asked them to prescribe medication
for Patient 1. Therefore, Dr. Chung's opinion regarding those interactions holds little
value. Finally, it is noted throughout the record that the Board neither alleged nor found
that appellant relapsed in his addiction to prescription medicine in 2010. Therefore, Dr.
Chung's testimony that appellant did not exhibit signs of relapse is not relevant.
{¶ 28} What appellant fails to acknowledge in this appeal are his own admissions
that align with the Board's allegations and findings. As the trial court noted:
In his sworn answers to the Board's interrogatories, the
appellant admitted that on eight occasions he requested
resident physicians under his supervision to provide either
Percocet or Vicodin for a family member without any of the
identified five residents having personally, physically
examining and/or diagnosing Patient 1. * * * During the
hearing phase, the appellant also testified that he had
No. 13AP-239 10
unintentionally omitted two additional prescriptions he had
required from physicians who had not personally examined
Patient 1, and that those prescriptions were for hydrocodone
with acetaminophen.
(R. 73, at 8-9.)
{¶ 29} Thus, the trial court concluded, "the record is replete with evidence, most
convincingly by the appellant's own admissions, that overwhelming[ly] supports the
Board's Order." (R. 73, at 8.) We do not find this assessment inaccurate, nor do we find it
unconscionable, unreasonable or arbitrary. Therefore, appellant's first assignment of
error alleging that the trial court abused its discretion in affirming the Board's order
because it was not supported by reliable evidence is overruled.
{¶ 30} Pursuant to his second assignment of error, appellant asserts that the trial
court erred in analyzing his selective enforcement claim. We disagree.
{¶ 31} " ' "To support a defense of selective or discriminatory prosecution, a
defendant bears the heavy burden of establishing, at least prima facie, (1) that, while
others similarly situated have not generally been proceeded against because of conduct of
the type forming the basis of the charge against him, he has been singled out for
prosecution, and (2) that the government's discriminatory selection of him for
prosecution has been invidious or in bad faith, i.e., based upon such impermissible
considerations as race, religion, or the desire to prevent his exercise of constitutional
rights." ' " Founder's Women's Health Ctr. v. Ohio State Dept. of Health, 10th Dist. No.
01AP-872, 2002-Ohio-4295, ¶ 31, quoting Cleveland v. Trzebuckowski, 85 Ohio St.3d
524, 531 (1999), quoting State v. Flynt, 63 Ohio St.2d 132, 134 (1980).
{¶ 32} Thus, appellant must establish that he and the resident physicians, who
were also involved in prescribing to Patient 1 but were not disciplined by the Board, were
similarly situated.2 Appellant cannot do so.
{¶ 33} As the trial court pointed out:
[T]he only reason the resident physicians were writing the
prescriptions in the first place for the appellant's family
member were under false pretenses at the direction of their
supervisor, and through the appellant's deception. The fact
2The trial court mentioned there is no evidence in the record establishing the resident physicians involved in
this case were, or were not, disciplined. We will address appellant's second assignment of error as if they
were not.
No. 13AP-239 11
that is most blatant to this Court, and the one that appellant's
counsel continually has chosen to ignore, is that the appellant
was the supervisor of these resident physicians and by no
stretch of the imagination can one conclude that the resident
physicians were similarly situated to the appellant. Moreover,
the other pertinent fact that appellant's counsel continues to
ignore is that the appellant admitted to his unlawful conduct.
(Emphasis sic.) (R. 73, at 12-13.)
{¶ 34} This court also notes that appellant admitted to participating in at least ten
instances of inappropriate prescribing, while each resident only appears to have
participated in one or two instances. Appellant was procuring controlled substances for a
family member while the residents were not, and there is no indication that any of the
residents were subject to practice restrictions while appellant was subject to the 2007
consent agreement with the Board during the incidents.
{¶ 35} Given these factors, among others, it is beyond dispute that appellant and
the residents were not similarly situated. Therefore, appellant's selective enforcement
claim fails at the outset. Because he cannot establish a prima facie claim, we do not find it
necessary to address the remainder of his argument referencing the ADA. See State v.
Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 82, citing Mason v. Home Depot U.S.A.,
Inc., 283 Ga. 271, 274-75 (2008). Accordingly, appellant's second assignment of error is
overruled.
{¶ 36} Pursuant to his third assignment of error, appellant asserts the trial court
erred as a matter of law by misinterpreting the Board's rule on post-commencement
subpoenas. We cannot agree.
{¶ 37} Appellant's argument on appeal, as the assignment of error suggests,
focuses on the Board's authority to issue subpoenas once a hearing has already
commenced. Appellant refers this court to Ohio Adm.Code 4731-13-13(E), which states:
After the hearing has commenced the hearing examiner may
order the issuance of subpoenas for purposes of hearing to
compel the attendance and testimony of witnesses and
production of books, records and papers. Copies of such
subpoenas shall be issued to each representative of record.
However, appellant did not direct the trial court to Ohio Adm.Code 4731-13-13(E), nor did
he make arguments based on Ohio Adm.Code 4731-13-13(E) below. Therefore, we cannot
No. 13AP-239 12
find the trial court erred in misinterpreting this particular rule. Indeed, the trial court was
not even asked to consider it.
{¶ 38} Appellant also reiterates arguments he made before the trial court pursuant
to Ohio Adm.Code 4731-13-13(C). However, these arguments do not comport with his
assignment of error and, as we stated above, this court rules on assignments of error only
and will not address mere arguments. Bonn at ¶ 9. In the interest of justice, though, we
will comment that we find no fault with the trial court's order overruling appellant's
assignment of error regarding the hearing examiner's refusal to grant leave and issue
subpoenas beyond the pre-hearing deadline. There was no error of law or an abuse of
discretion. Accordingly, we overrule appellant's third assignment of error.
V. CONCLUSION
{¶ 39} Therefore, having overruled appellant's three assignments of error, we
affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and SADLER, JJ., concur.
T. BRYANT, J., retired, formerly of the Third Appellate
District, assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
____________________