Weiss v. State Med. Bd. of Ohio , 2013 Ohio 4215 ( 2013 )

[Cite as Weiss v. State Med. Bd. of Ohio, 2013-Ohio-4215.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Justin F. Weiss, M.D., :
Appellant-Appellant, : No. 13AP-281
(C.P.C. No. 10CV-16581)
v. :
(REGULAR CALENDAR)
State Medical Board of Ohio, :
Appellee-Appellee. :
D E C I S I O N
Rendered on September 26, 2013
Marshall and Morrow LLC, John S. Marshall and Edward R.
Forman, for appellant.
Michael DeWine, Attorney General, and Katherine J.
Bockbrader, for appellee.
APPEAL from the Franklin County Court of Common Pleas
T. BRYANT, J.
{¶ 1} Appellant, Justin F. Weiss, M.D., appeals from a judgment of the Franklin
County Court of Common Pleas affirming an order issued by appellee, State Medical
Board of Ohio, granting him a certificate to practice medicine in Ohio, but reprimanding
him. Because the State Medical Board of Ohio was authorized to issue the order and the
applicable statute was not unconstitutional as applied to appellant, we affirm.
I. BACKGROUND
{¶ 2} Appellant is a radiologist who has been practicing medicine since 1975.
He practiced in a traditional office and hospital setting in Arizona until around 2004
when he began a transition to practicing teleradiology, in which he reviews images
transmitted to him through the internet.
No. 13AP-281 2
{¶ 3} On October 13, 2005, the Arizona Medical Board ("Arizona board") issued a
letter of reprimand to appellant for failing to order further diagnostic studies and failing
to diagnose a malignant breast mass. Shortly thereafter, appellant entered into a consent
agreement with the Arizona board to resolve a second disciplinary matter. Appellant
stipulated to the factual finding that he deviated from the standard of care by failing to
accurately report an apparent fracture or partial dislocation of a patient's lumbar spine
and failing to order additional diagnostic studies. In accordance with the agreement, on
December 12, 2005, the Arizona board issued a letter of reprimand against appellant for
failing to correctly read an x-ray. The consent agreement noted that appellant's
admissions were "solely for final disposition of this matter" and were "not intended or
made for any other use, such as in the context of another state or federal government
regulatory agency proceeding." (R. 25, State's exhibit No. 3(b), at ¶ 4.)
{¶ 4} In May 2006, the California Medical Board ("California board") initiated
disciplinary proceedings against appellant based on the Arizona disciplinary matters.
Appellant and the California board entered into a stipulation for public reprimand, which
was conditioned on appellant's enrollment in and completion of a clinical training
program. The parties stipulated that appellant's admissions were only for purposes of
that disciplinary proceeding and "shall not be admissible in any other criminal or civil
proceeding." (R. 25, State's exhibit No. 4(a).) The California board approved the
stipulated public reprimand effective February 9, 2007. Appellant completed the clinical
training program and, on October 11, 2007, the California board issued the public
reprimand.
{¶ 5} Less than one year later, on July 15, 2008, appellant filed an application to
practice medicine in Ohio. He noted that he was licensed to practice medicine in Arizona,
California, and Pennsylvania. Appellant applied for an Ohio medical license because a
national portable x-ray company had requested that he provide services for its Ohio
patients. Following the disciplinary actions of the Arizona and California boards,
appellant obtained unrestricted licenses to practice medicine in New York, Indiana,
Tennessee, South Carolina, Utah, and Maryland. In his application, appellant disclosed
his Arizona and California reprimands.
No. 13AP-281 3
{¶ 6} In June 2009, the State Medical Board of Ohio ("Ohio board") notified
appellant that it intended "to determine whether or not to limit, revoke, permanently
revoke, suspend, refuse to register or reinstate [his] certificate to practice medicine and
surgery, or to reprimand [him] or place [him] on probation" pursuant to R.C.
4731.22(B)(22) because of the Arizona and California disciplinary actions. (R. 25, State's
exhibit No. 1(a).) The Ohio board further notified appellant that he was entitled to
request a hearing. Appellant requested a hearing, and a board hearing examiner held the
hearing in March 2010.
{¶ 7} At the hearing, appellant's counsel noted that he did not contest the facts
concerning the Arizona and California reprimands, but he claimed that the Ohio board
should consider the entirety of the facts, including that the reprimands related to
underlying events that occurred over a decade earlier, in determining whether appellant
should be disciplined under R.C. 4731.22(B)(22). When the Ohio board hearing examiner
observed that the consent agreement for the second Arizona disciplinary matter stated
that any of appellant's admissions were not intended for use by another state regulatory
agency, she asked if appellant would object to her considering the stipulated findings of
fact and conclusions of law in that action. Appellant's counsel replied, "I don't think that
there's any way that you can be prohibited from considering that." (R. 25, Tr. 56.)
Appellant then proceeded to testify on redirect examination concerning the underlying
circumstances for the two incidents that were the basis for the Arizona reprimands.
{¶ 8} In September 2010, the hearing examiner issued a report recommending
that appellant's application to practice medicine in Ohio be granted, provided that he
otherwise meets all statutory and regulatory requirements, but that he be reprimanded
based on the Arizona and California reprimands under R.C. 4731.22(B)(22), and that he
be required to report the order to, inter alia, employers, entities with which he contracted
to provide healthcare services, and other state licensing agencies. Appellant, through
counsel, submitted objections to the hearing examiner's report and recommendation in
which he objected to reliance on facts stipulated in the second Arizona disciplinary
proceeding and the California disciplinary matter that were not to be admitted for
purposes of another state regulatory proceeding. Appellant also objected to the reporting
requirements of the proposed order. More specifically, appellant claimed that the
No. 13AP-281 4
proposed reprimand and reporting requirements were not supported by reliable,
probative, and substantial evidence because they violated his due process rights.
{¶ 9} On October 13, 2010, the Ohio board amended the proposed order to
remove the reporting requirements. On that same date, the Ohio board approved its
hearing examiner's report and recommendation, as modified, and issued the following
order, which was mailed to appellant on November 4, 2010:
It is hereby ORDERED that:
A. The application of Justin Frederic Weiss, M.D., for a
certificate to practice allopathic medicine and surgery in Ohio
is GRANTED, provided that he otherwise meets all statutory
and regulatory requirements.
B. Dr. Weiss is hereby REPRIMANDED.
(Emphasis sic.; R. 25, Oct. 13, 2010 Entry of Order.)
{¶ 10} Appellant filed a timely appeal from the Ohio board's order to the Franklin
County Court of Common Pleas. In his notice, appellant asserted that the Ohio board's
order "is not supported by reliable, probative and substantial evidence and is not in
accordance with law." (R. 3.) More specifically, appellant claimed that the Ohio board:
(1) failed to apply R.C. 4731.22(B)(22) in pari materia with R.C. 4731.29(A); (2) denied
him due process by admitting and considering evidence without appellant having the
opportunity to confront and examine witnesses to alleged acts of unprofessional conduct;
(3) violated his right by applying R.C. 4731.22(B)(22), which is unconstitutional on its face
and, as applied in this case, because the General Assembly purported to delegate powers
beyond the constitutional limits; (4) failed to apply full faith and credit to actions taken by
the Arizona and California boards; and (5) violated appellant's liberty interest
constitutionally guaranteed to him. Appellant sought and was granted an order
suspending the Ohio board's order pending the appeal.
{¶ 11} The parties submitted briefs in their administrative appeal. In his initial
merit brief, appellant claimed that the Ohio board erred in construing R.C.
4731.22(B)(22) to issue discipline to any physician upon proof of any prior action by any
state "without any consideration of the antiquity of the other state's action, the
physician's successful completion of the remediation required by the state, or the lack of
No. 13AP-281 5
any likelihood that the physician presents any risk to patients in Ohio at all." (Emphasis
sic.; R. 49, at 9.) Appellant also claimed that the Ohio board violated his right to due
process by finding that he deviated from the standard of care in the second Arizona
disciplinary matter although he never had a hearing in which any agency proved the
underlying allegations. Finally, appellant claimed that R.C. 4731.22(B)(22) is
unconstitutional on its face if it is construed to permit discipline in Ohio without evidence
that the past conduct underlying another state's disciplinary action would impair the
physician's ability to practice safely in Ohio. Following the completion of briefing,
appellant obtained new counsel.
{¶ 12} On March 6, 2013, the common pleas court issued a decision and entry
affirming the Ohio board's order granting appellant a license to practice medicine in Ohio,
but subjecting him to a reprimand under R.C. 4731.22(B). The court determined that the
Ohio board was not required to find that the allegations in the Arizona and California
board proceedings had been proven, that appellant was afforded due process because he
was given an opportunity to be heard and to explain the circumstances surrounding the
Arizona and California proceedings, and that R.C. 4731.22(B)(22) is constitutional
because it is rationally related to a legitimate governmental interest.
II. ASSIGNMENTS OF ERROR
{¶ 13} This appeal ensued, and appellant assigns the following errors:
I. THE COURT OF COMMON PLEAS ERRED BY
INTERPRETING R.C. 4731.22(B)(22) TO EMPOWER THE
MEDICAL BOARD TO GRANT A LICENSE TO PRACTICE
MEDICINE SUBJECT TO A REPRIMAND.
II. THE COURT OF COMMON PLEAS ERRED BY
REJECTING A CONSTITUTIONAL CHALLENGE TO R.C.
4731.22(B)(22) WHEN, AS APPLIED TO AN APPLICANT
FOR A LICENSE TO PRACTICE MEDICINE, IT DEPRIVED
HIM OF DUE PROCESS.
III. STANDARD OF REVIEW
{¶ 14} In an administrative appeal under R.C. 119.12, the common pleas court
reviews an administrative agency's order to determine whether it is supported by reliable,
probative, and substantial evidence and is in accordance with law. Lundeen v. State Med.
No. 13AP-281 6
Bd. of Ohio, 10th Dist. No. 12AP-629, 2013-Ohio-112, ¶ 8. Evidence is reliable if it is
dependable, i.e., there is a reasonable probability that the evidence establishes an asserted
fact to be true. HealthSouth Corp. v. Testa, 132 Ohio St. 3d 55, 2012-Ohio-1871, ¶ 12,
quoting Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St. 3d 570, 571 (1992).
Evidence is probative if it is relevant in determining the issue. Id. Finally, evidence is
substantial if it has some weight, i.e., importance and value. Our Place at 571.
{¶ 15} On further appeal to a court of appeals, the standard of review is more
limited. Smith v. State Med. Bd. of Ohio, 10th Dist. No. 12AP-234, 2012-Ohio-4423, ¶ 13.
In reviewing the court of common pleas' determination that the board's order was
supported by reliable, probative, and substantial evidence, our role is limited to
determining whether the common pleas court abused its discretion. Oyortey v. State
Med. Bd. of Ohio, 10th Dist. No. 12AP-431, 2012-Ohio-6204, ¶ 13. An abuse of discretion
occurs when a decision is unconscionable, unreasonable, or arbitrary. State ex rel. Nese
v. State Teachers Retirement Sys. of Ohio, 136 Ohio St. 3d 103, 2013-Ohio-1777, ¶ 25.
Nevertheless, on the issue of whether the board's order was in accordance with the law,
this court's review is plenary. Univ. Hosp. Univ. of Cincinnati College of Medicine v.
State Emp. Relations Bd., 63 Ohio St. 3d 339, 343 (1992).
IV. DISCUSSION
{¶ 16} In his first assignment of error, appellant asserts that the common pleas
court erred by interpreting R.C. 4731.22(B)(22) to empower the State Medical Board of
Ohio to grant a license to practice medicine subject to reprimand. The Ohio board first
contends that appellant waived this assignment of error by failing to raise it in either the
board proceedings or his administrative appeal to the common pleas court.
{¶ 17} "A party generally waives the right to appeal an issue that could have been
but was not raised in earlier proceedings," and "[t]his tenet has been applied in appeals
from administrative agencies." Leslie v. Ohio Dept. of Development, 171 Ohio App. 3d 55,
2007-Ohio-1170, ¶ 47 (10th Dist.), citing MacConnell v. Ohio Dept. of Commerce, 10th
Dist. No. 04AP-433, 2005-Ohio-1960, ¶ 21; In re Application of Columbus S. Power Co.,
129 Ohio St. 3d 271, 2011-Ohio-2638, ¶ 19 (the failure to present an argument in an
administrative agency generally precludes a reviewing court's consideration of it). The
reasons for this waiver doctrine are to: (1) afford the opposing party a meaningful
No. 13AP-281 7
opportunity to respond to issues or errors that may affect the party's cause; (2) protect the
role of courts and the dignity of the proceedings by imposing upon counsel the duty to
exercise diligence in the party's cause and to aid the court and administrative agency
rather than silently mislead it into committing error; and (3) prevent an administrative
agency from having to search its records for issues that the parties could potentially raise
instead of limiting its review to issues that are actually raised. See State ex rel. Quarto
Mining Co. v. Foreman, 79 Ohio St. 3d 78, 81-83 (1997); Berning v. Ohio Dept. of
Transp., 10th Dist. No. 11AP-837, 2012-Ohio-2991, ¶ 11.
{¶ 18} Nevertheless, the waiver doctrine is not absolute. Gross v. Ohio State Med.
Bd., 10th Dist. No. 08AP-437, 2008-Ohio-6826, ¶ 11, citing Belvedere Condominium Unit
Owners' Assn. v. R.E. Roark Cos., Inc., 67 Ohio St. 3d 274, 279 (1993), modified on other
grounds, Dombrowski v. WellPoint, Inc., 119 Ohio St. 3d 506, 2008-Ohio-4827. " 'When
an issue of law that was not argued below is implicit in another issue that was argued and
is presented by an appeal, [an appellate court] may consider and resolve that implicit
issue.' " Gross at ¶ 11, quoting Belvedere at 279.
{¶ 19} In Gross, this court exercised its discretion to consider a doctor's raising of a
new issue in an appeal from a judgment of the common pleas court affirming the Ohio
State Medical Board's limitation of his certificate to practice osteopathic medicine and
surgery in Ohio. Id. at ¶ 10-12. The Ohio board based its order under former R.C.
4731.22(B)(22) on the Colorado State Board of Medical Examiners' order that his
Colorado medical license be placed on permanent inactive status. We held that because
Dr. Gross raised in his administrative appeal to the common pleas court that the Ohio
board's order was not in accordance with law, the doctor's new claim in his appeal to this
court that the board lacked a cognizable basis to support discipline under former R.C.
4731.22(B)(22) was implicit in the general claim he raised, which permitted the court to
address the merits of his new claim. Id.
{¶ 20} Similarly, appellant's new claim here—that the Ohio board is not authorized
by R.C. 4731.22(B)(22) to grant an applicant a certificate to practice medicine in Ohio
subject to a reprimand—is implicit in his claim in his administrative appeal to the
common pleas court that the Ohio board's order "is not in accordance with law." (R. 3.)
Therefore, although we caution future litigants that we need not exercise our discretion to
No. 13AP-281 8
address the merits of similar new issues, based on appellant's citation of Gross, as well as
the parties' extensive briefing on the merits, we shall consider appellant's argument here.
{¶ 21} Under R.C. 2731.22(B):
The board, by an affirmative vote of not fewer than six
members, shall, to the extent permitted by law, limit, revoke,
or suspend an individual's certificate to practice, refuse to
register an individual, refuse to reinstate a certificate, or
reprimand or place on probation the holder of a certificate for
one or more of the following reasons:
***
(22) Any of the following actions taken by an agency
responsible for authorizing, certifying, or regulating an
individual to practice a health care occupation or provide
health care services in this state or another jurisdiction, for
any reason other than the nonpayment of fees: the limitation,
revocation, or suspension of an individual's license to
practice; acceptance of an individual's license surrender;
denial of a license; refusal to renew or reinstate a license;
imposition of probation; or issuance of an order of censure or
other reprimand[.]
{¶ 22} Appellant claims that R.C. 4731.22(B)(22) cannot be used to impose a
sanction on an applicant for an Ohio license to practice medicine because, by its own
terms, the statute is restricted to current Ohio medical certificate holders and licensees
rather than applicants for a medical certificate or license. "The paramount concern in
statutory interpretation is the legislative intent in enacting the statute." State ex rel.
Taxpayers for Westerville Schools v. Franklin Cty. Bd. of Elections, 133 Ohio St. 3d 153,
2012-Ohio-4267, ¶ 17. To discern this intent, courts first review the statutory language,
reading words and phrases in context and construing them in accordance with rules of
grammar and common usage. Id.
{¶ 23} Upon reviewing R.C. 4731.22(B)(22), appellant's argument fails. The
statute includes the phrase "refuse to register an individual," which means the denial of an
application for a certificate to practice in Ohio. See, e.g., Ohio Adm.Code 4731-13-36(J),
defining "Permanent Refusal to Register or Reinstate" as "the permanent denial of an
application for a certificate to practice in Ohio," and (K), defining "Refusal to Register to
No. 13AP-281 9
Reinstate" as "the denial of an application for a certificate to practice in Ohio." R.C.
4731.22(B)(22) applies to applicants for certificates to practice medicine in Ohio.
{¶ 24} Moreover, insofar as the statutory language might be considered unclear on
this point, an agency's interpretation of a statute that it has a duty to enforce will be
overturned only if the interpretation is unreasonable, and a court must defer to an
administrative agency's reasonable interpretation of such statute. Oyortey at ¶ 17, citing
State ex rel. Clark v. Great Lakes Constr. Co., 99 Ohio St. 3d 320, 2003-Ohio-3802, ¶ 10,
and Shroeder v. State Bd. of Registration for Professional Engineers & Surveyors, 10th
Dist. No. 04AP-338, 2004-Ohio-5793, ¶ 12. More particularly, "[w]hen reviewing a
medical board's order, courts must accord due deference to the board's interpretation of
the technical and ethical requirements of its profession ." Pons v. Ohio State Med. Bd., 66
Ohio St. 3d 619 (1993), syllabus.
{¶ 25} The agency's interpretation of R.C. 4731.22(B)(22) that it can grant an
applicant an Ohio medical license subject to reprimand based on reprimands issued by
the medical boards of other states is reasonable. Nothing in the plain statutory language
prohibits the medical board from so ordering. To the contrary, under Ohio Adm.Code
4731-13-36(I), a "Grant of Application for Certificate" is defined as the board's granting of
an application for a certificate to practice, and "[i]n matters where disciplinary violations
have been alleged against an applicant for a certificate, the grant of an application for
certificate may be accompanied by a suspension, limitation, probation, reprimand or no
further action." The disciplinary violations alleged against appellant in this case were
violations of the reciprocal discipline provision of R.C. 4731.22(B)(22) based on the public
reprimands issued by the Arizona and California boards. This is what the Ohio board did
here—it granted the certificate to practice medicine in Ohio, but accompanied it with a
reprimand.
{¶ 26} Therefore, because the Ohio board's order granting appellant a license
subject to a reprimand based on the disciplinary orders of the Arizona and California
boards was authorized by R.C. 4731.22(B)(22) and Ohio Adm.Code 4731-13-36(I),
appellant's first assignment of error is overruled.
{¶ 27} In his second assignment of error, appellant asserts that the common pleas
court erred by rejecting his constitutional challenge to R.C. 4731.22(B)(22) when, as
No. 13AP-281 10
applied to an applicant for a license to practice medicine in Ohio, it deprived him of due
process. A party raising an as-applied constitutional challenge alleges that the application
of the statute in the particular context in which he acted or in which he proposes to act
would be unconstitutional. Wymslo v. Bartec, Inc., 132 Ohio St. 3d 167, 2012-Ohio-2187,
¶ 22. We must presume the constitutionality of the challenged statute. State ex rel.
Zeigler v. Zumbar, 129 Ohio St. 3d 240, 2011-Ohio-2939, ¶ 24.
{¶ 28} Because the unfettered practice of medicine is not a fundamental
constitutional right, the issue is whether the statute is reasonably related to promoting
some legitimate state interest. Gross v. Univ. of Tennessee, 620 F.2d 109, 110 (6th
Cir.1980). That is, there must be a rational basis for the statute. Eppley v. Tri-Valley
Local School Dist. Bd. of Edn., 122 Ohio St. 3d 56, 2009-Ohio-1970, ¶ 15.
{¶ 29} Appellant contends that there is no rational basis for applying R.C.
4731.22(B)(22) to him as an automatic reciprocal discipline rule so as to create an
irrebuttable presumption requiring a reprimand because it "deprives the physician of an
opportunity to submit evidence on the rational relationship between the prior discipline
and his or her current professional competence." (Appellant's brief, at 39.)
{¶ 30} The premise of appellant's constitutional challenge is flawed. The Ohio
board did not apply R.C. 4731.22(B)(22) so as to create an irrebuttable presumption that
he be reprimanded because of his Arizona and California reprimands. Instead, appellant
was afforded a full opportunity to present evidence regarding the circumstances
underlying the disciplinary actions by the other states, as well as the issuance to him of
unrestricted medical certificates in several other states, notwithstanding the reprimands.
It is true that the mere fact that the Arizona and California boards issued reprimands
would have justified the Ohio board's decision to grant appellant a license, subject to a
reprimand under R.C. 4731.22(B)(22) even if the other state medical boards' reprimands
had been "based on something or nothing." Coniglio v. State Med. Bd. of Ohio, 10th Dist.
No. 07AP-298, 2007-Ohio-5018, ¶ 7. But R.C. 4731.22 merely "permits the State Medical
Board of Ohio to discipline" appellant under these circumstances; it did not require the
board to do so. (Emphasis added.) Id. Pertinent administrative rules reinforce the
board's discretionary authority in these circumstances. See Ohio Adm.Code 4731-13-36(I)
("In matters where disciplinary violations have been alleged against an applicant for a
No. 13AP-281 11
certificate, the grant of an application for certificate may be accompanied by a
suspension, limitation, probation, reprimand or no further action."), and (G) (defining
"No Further Action" as when the board finds that a violation occurred but declines to
impose any disciplinary sanction, so that "where the board finds that all necessary
remedial measures have been completed by the certificate holder, future monitoring is
unnecessary and reprimand is not warranted"). (Emphasis added.)
{¶ 31} Consequently, appellant received the fundamental requirements of due
process—notice of the hearing before the Ohio board and an opportunity to be heard on
his violations of R.C. 4731.22(B)(22). Calloway v. Ohio State Med. Bd., 10th Dist. No.
12AP-599, 2013-Ohio-2069, ¶ 40.
{¶ 32} In addition, appellant invited any error in the Ohio board relying on the
findings and conclusions in his second Arizona disciplinary matter because his first
counsel specified that the board would not be prohibited from considering them in its
determination. A party is not permitted to take advantage on appeal of an error that he
himself induced a lower court or tribunal to make. See, generally, State ex rel. DeWine v.
Burge, 128 Ohio St. 3d 236, 2011-Ohio-235, ¶ 11; State ex rel. O'Beirne v. Geauga Cty. Bd.
of Elections, 80 Ohio St. 3d 176, 181 (1997) (relators in mandamus case could not contend
board of elections erred in relying on evidence that relators themselves presented to the
board). And, as noted previously, the pertinent fact for purposes of R.C. 4731.22(B)(22)
was simply that the Arizona board reprimanded appellant. Coniglio at ¶ 7.
{¶ 33} Finally, R.C. 4731.22(B)(22) is rationally related to a legitimate government
interestthe state interest in protecting the public so that, as the common pleas court
noted, "when an out-of-state physician seeks to practice medicine here, this disciplinary
history follows him and is readily available to the Ohio public." (R. 60, Decision and
Entry, at 8.) See Bouquett v. Ohio State Med. Bd., 123 Ohio App. 3d 466, 473 (10th
Dist.1997) ("R.C. 4731.22(B) was enacted under the state's police powers in order to
protect the public's safety and welfare.").
{¶ 34} Therefore, appellant has not established that R.C. 4731.22(B)(22) is
unconstitutional as applied to him. Appellant's second assignment of error is overruled.
No. 13AP-281 12
V. CONCLUSION
{¶ 35} Having overruled appellant's two assignments of error, the judgment of the
Franklin County Court of Common Pleas is affirmed.
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).
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