Demint v. State Med. Bd. of Ohio , 2016 Ohio 3531 ( 2016 )

[Cite as Demint v. State Med. Bd. of Ohio, 2016-Ohio-3531.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Franklin Donald Demint, D.O., :
Appellant-Appellant, : No. 15AP-456
(C.P.C. No. 14CV-12547)
v. :
(REGULAR CALENDAR)
State Medical Board of Ohio, :
Appellee-Appellee. :
D E C I S I O N
Rendered on June 21, 2016
On brief: James R. Kingsley, for appellant. Argued:
James R. Kingsley.
On brief: Michael DeWine, Attorney General, Kyle C.
Wilcox, and Melinda Snyder, for appellee. Argued: Henry G.
Appel.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} Franklin Donald Demint, D.O., appellant, appeals the judgment of the
Franklin County Court of Common Pleas affirming an order of appellee, State Medical
Board of Ohio ("board"), imposing certain limitations on appellant's certificate to practice
medicine and permanently revoking his ability to prescribe narcotic analgesic drugs.
{¶ 2} The following factual background draws from the trial court's decision as
well as from the summary of evidence set forth in the report and recommendation issued
by a board hearing examiner. Appellant obtained his osteopathic medical degree in 1990.
He was certified by the American Osteopathic Board of Family Physicians and by the
No. 15AP-456 2
American Osteopathic Board of Neuromusculoskeletal Medicine and a diplomate of the
American Academy of Pain Management.
{¶ 3} Appellant currently practices as a solo practitioner in Kingston, Ohio. His
practice includes family medicine and addiction medicine, including Suboxone therapy.
Appellant testified that between 80 to 90 percent of his current patients are Suboxone
patients. He testified he formerly specialized in pain management, but discontinued that
specialty when House Bill. No. 93 took effect in 2011.
{¶ 4} Pursuant to a Step I Agreement, in 2009, appellant's certificate was
suspended for at least 180 days based on violations of R.C. 4731.22(B)(5), (10), (20), and
(26). The actions constituting the basis for the Step I Agreement were appellant's
dependence on marijuana, and his admission of dispensing generic Tylenol 3 tablets to a
family member under circumstances that did not constitute an emergency situation while
not performing and documenting an examination and without maintaining patient
records. Appellant was required to complete 28 days of inpatient treatment, to maintain
sobriety, and submit to interim monitoring requirements. Pursuant to a March 2010 Step
II Consent Agreement, appellant's certificate was reinstated subject to probationary
requirements, including practice monitoring.
{¶ 5} On March 14, 2012, the board issued a Notice of Opportunity to appellant
informing him that the board intended to take disciplinary action against his certificate to
practice osteopathic medicine and surgery. The disciplinary action was the result of
appellant's treatment of Patients 1-141 from March 2010 through April 2011, which the
board alleged was below the minimum standard of care and violated the board's rules for
utilizing prescription drugs for the treatment of intractable pain. The board alleged that
appellant's care of these 14 patients constituted a violation of R.C. 4731.22. Appellant's
treatment of these 14 patients fell below the minimal standard of care as follows:
(a) In regards to Patient 1, you inappropriately prescribed
narcotics for treatment of diagnosed fibromyalgia;
(b) In regards to Patients 3-5, 7-8, 11, and 13, you failed to
obtain, appropriately review and/or properly document
review of patient histories and/or prior medical records;
1 To protect patient confidentiality, the patients and their records are referred to by an assigned number.
No. 15AP-456 3
(c) In regards to Patients 1-5, and 7-14, the amount and/or
type of narcotics prescribed was not supported by history,
physical exam and/or test findings;
(d) In regards to Patients 9, and 12, you inappropriately
prescribed high doses of narcotics despite diagnoses of
underlying Chronic Obstructive Pulmonary Disease.
(e) In regards to Patients 1, 2, 4, 6-10, and 12-14, you failed
to develop and/or properly document the development of an
individualized treatment plan and/or goals for therapy
including, but not limited to, counseling, mental health
treatment, selective serotonin reuptake inhibitors [SSRI]
and/or physical therapy;
(f) In regards to Patients 1, 2, 5, 9, and 11-14, you failed to
obtain toxicology screens prior to prescribing narcotics;
(g) In regards to Patients 3, 6, 8, 9, 11, 12, and 13, you failed
to appropriately act and/or properly document appropriate
action when presented with signs of patient drug abuse
and/or diversion, including early refills and/or multiple
abnormal toxicology reports;
(h) In regards to Patients 2-6, 9, and 13, you failed to
appropriately evaluate, or document the appropriate
evaluation of the patient situation with respect to possible
adverse drug effects, signs of any illegal drug and/or alcohol
use or abuse, and assessment of quality of patient's home
and/or work environment; and
(i) In regards to Patients 1-3, 6, 8, and 12, your medical
charting was incomplete, often illegible and/or disorganized.
(State's Ex. 20A at 2-3.)
{¶ 6} On August 3, 2012, appellant's counsel filed a notice of withdrawal.
Appellant's new counsel appeared as counsel of record and requested a continuance on
August 16, 2012. Appellant's counsel requested the continuance to identify and prepare
an expert witness, which former counsel failed to do. The hearing officer denied the
request.
{¶ 7} The hearing officer conducted a three-day hearing and issued a report and
recommendation. The board convened and issued an order on April 18, 2013, finding
No. 15AP-456 4
appellant inappropriately prescribed controlled medications, failed to maintain minimal
standards of care, and failed to employ acceptable scientific methods in the selection of
drugs. The order included a six-month to indefinite license suspension and monitoring
conditions.
{¶ 8} Appellant appealed and the Franklin County Court of Common Pleas
reversed the order of the board and remanded the matter for a new hearing, finding that
the hearing officer's denial of the continuance was arbitrary, unreasonable, and contrary
to law.
{¶ 9} On remand, appellant submitted the previously proffered testimony of his
prior monitoring physician, Dr. Phillip Prior, the affidavit of his current monitoring
physician, Dr. Ellis Frazier, Exhibits M-Z, which are summaries of his care of these
patients in question, and additional records. The hearing officer issued a report and
recommendation on February 13, 2013, recommending the board find appellant violated
the standards of practice and violated board rules regarding the prescribing of controlled
substances. The board agreed and suspended appellant from the practice of medicine for
a minimum of 90 days and permanently revoked his ability to prescribe narcotic analgesic
drugs, except buprenorphine-containing products or any other products that are
approved to treat drug addiction. At that time of the order, there were four new board
members from the time of the first consideration.
{¶ 10} Appellant again appealed to the Franklin County Court of Common Pleas,
which affirmed the order of the board. Appellant filed a timely notice of appeal and raised
the following assignments of error for our review:
[1.] WAS IT PREJUDICIAL ERROR TO ALLOW THE
TESTIMONY OF DR. CICEK?
[2.] WAS IT PREJUDICIAL ERROR TO FIND THAT DR.
DEMINT'S HANDWRITING WAS A BASIS FOR
DISCIPLINE?
[3.] WAS THE FINDING OF IMPROPER CHARTING
REVERSIBLE ERROR?
[4.] WAS IT PREJUDICIAL ERROR TO FIND THAT DR.
DEMINT IMPROPERLY PRESCRIBED NARCOTICS?
No. 15AP-456 5
[5.] WAS IT PREJUDICIAL ERROR TO FIND THAT DR.
DEMINT PRESCRIBED BEFORE RECEIVING
INFORMATION WAS RECEIVED OR FAILED TO ACT
UPON INCONSISTENT TEST RESULTS?
[6.] WAS IT PREJUDICIAL ERROR TO FIND THAT DR.
DEMINT FAILED TO NOTE IN THE FILE THAT HE READ
THE FILE EACH TIME HE SAW A PATIENT?
[7.] WAS IT PREJUDICIAL ERROR TO FIND THAT DR.
DEMINT TREATED OR FAILED TO DISCHARGE A
PATIENT WHO ADMITTED TO ABUSING ILLEGAL
DRUGS?
[8.] WAS IT PREJUDICIAL ERROR TO FIND THAT DR.
DEMINT IMPROPERLY TREATED FIBROMYALGIA?
[9.] WAS IT PREJUDICIAL ERROR TO FIND THAT DR.
DEMINT FAILED TO PROPERLY WARN A COPD
PATIENT?
[10.] WAS IT PREJUDICIAL ERROR TO APPLY POST
CLAIM STATUTORY CHANGES AND NEWLY
ANNOUNCED STANDARDS OF CARE?
[11.] WAS THE BOARD'S DECISION BASED UPON A NEW
BOARD MEMBERS' MATERIALLY MISCHARACTERIZED
AND INFLAMMATORY EVIDENCE NOT IN THE
RECORD?
[12.] DID THE BOARD IMPOSE VINDICTIVE
PUNISHMENT?
{¶ 11} The Ohio Revised Code "vests the Board with broad authority to regulate
the medical profession in this state, and to discipline any physician whose care constitutes
'[a] departure from, or the failure to conform to, minimal standards of care of similar
practitioners under the same or similar circumstances, whether or not actual injury to a
patient is established.' " Griffin v. State Med. Bd., 10th Dist. No. 09AP-276, 2009-Ohio-
4849, ¶ 3, quoting R.C. 4731.22(B)(6). In an appeal from an order of the board, "a
reviewing trial court is bound to uphold the order if it is supported by reliable, probative,
and substantial evidence, and is in accordance with law." Pons v. State Med. Bd., 66 Ohio
St.3d 619, 621 (1993), citing R.C. 119.12. " 'Reliable' evidence is dependable; that is, it can
No. 15AP-456 6
be confidently trusted. In order to be reliable, there must be a reasonable probability that
the evidence is true." Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570,
571 (1992). " 'Probative' evidence is evidence that tends to prove the issue in question; it
must be relevant in determining the issue." Id. " 'Substantial' evidence is evidence with
some weight; it must have importance and value." Id.{¶ 12} The common pleas court's " ' "review of the administrative record is neither
a trial de novo nor an appeal on questions of law only, but a hybrid review in which the
court 'must appraise all [the] evidence as to the credibility of the witnesses, the probative
character of the evidence, and the weight [thereof].' " ' " Temponeras v. Ohio State Med.
Bd., 10th Dist. No. 14AP-970, 2015-Ohio-3043, ¶ 8, quoting Akron v. Ohio Dept. of Ins.,
10th Dist. No. 13AP-473, 2014-Ohio-96, ¶ 19, quoting Lies v. Ohio Veterinary Med. Bd., 2
Ohio App.3d 204, 207 (1st Dist.1981), quoting Andrews v. Bd. of Liquor Control, 164
Ohio St. 275, 280 (1955). When there is conflicting testimony, the court must give due
deference to the administrative determination of conflicting testimony, including
resolution of credibility conflicts. Temponeras at ¶ 8, citing Crumpler v. State Bd. of
Edn., 71 Ohio App.3d 526, 528 (10th Dist.1991). Unless the findings of fact are
" ' "internally inconsistent, impeached by evidence of a prior inconsistent statement, rest
upon improper inferences, or are otherwise unsupportable," ' " the court must defer to
such findings by the agency. Id. at ¶ 8, quoting Kimbro v. Ohio Dept. of Adm. Servs., 10th
Dist. No. 12AP-1053, 2013-Ohio-2519, ¶ 7, quoting Ohio Historical Soc. v. State Emp.
Relations Bd., 66 Ohio St.3d 466, 471 (1993). The common pleas court reviews legal
questions de novo. Id.{¶ 13} An appellate court's review "is even more limited than that of the trial
court." Pons at 621. Specifically, "[w]hile it is incumbent on the trial court to examine the
evidence, this is not a function of the appellate court. The appellate court is to determine
only if the trial court has abused its discretion, i.e., being not merely an error of judgment,
but perversity of will, passion, prejudice, partiality, or moral delinquency." Id. Thus,
"[a]bsent an abuse of discretion on the part of the trial court, a court of appeals may not
substitute its judgment for those of the medical board or a trial court." Id. An appellate
court's review is plenary when it is determining whether the board's order was in
accordance with law. Temponeras at ¶ 9, citing Weiss v. State Med. Bd. of Ohio, 10th
No. 15AP-456 7
Dist. No. 13AP-281, 2013-Ohio-4215, ¶ 15, citing Univ. Hosp., Univ. of Cincinnati College
of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339, 343 (1992).
{¶ 14} In his first assignment of error, appellant contends that it was prejudicial
error to allow the testimony of the state's expert witness, Dr. Wendy Cicek. The trial court
found the record contained ample evidence establishing Dr. Cicek's expertise in treating
patients with chronic pain.
{¶ 15} Dr. Cicek is an assistant professor and former clinical instructor at Case
Medical School. She is board certified by the American Board of Family Medicine. Until a
few weeks prior to the hearing, she was employed at MetroHealth Medical Center
("MetroHealth") where she was practicing when she reviewed the records for this case.
However, just weeks before the hearing, she started working at Kaiser Permanente. At
MetroHealth, she worked as a family physician with five other providers, providing
primary care to patients. She averaged approximately 25 patients per day and utilized
controlled prescription narcotics in her practice. Approximately 30 to 40 percent of her
patients included ones with chronic pain, many of them utilizing opioid medications.
Ninety percent of her practice prior to her recent job change was clinical work and
currently 100 percent is clinical work. She received CME training in pain management.
When she worked at MetroHealth, she had a DEA certification to prescribe Suboxone. Dr.
Cicek reviewed the 14 patient records and prepared a report regarding her findings.
{¶ 16} Although the board is not required to present expert testimony to support
the charges against a physician, reliable, probative, and substantial evidence must support
the charges. Griffin at ¶ 13. This court has set forth that an expert may testify in a
medical board proceeding if the expert's experience and practice is similar to the
physician facing discipline. Leak v. State Med. Bd., 10th Dist. No. 09AP-1215, 2011-Ohio-
2483, ¶ 12. "[T]he expert must be capable of expressing an opinion grounded in the
particular standard of care applicable to the area of practice for the physician facing
discipline." Id., citing Lawrence v. State Med. Bd. of Ohio, 10th Dist. No. 92AP-1018
(Mar. 11, 1993).
{¶ 17} Appellant is board certified in family medicine and, similar to Dr. Cicek, he
received his training in pain management through CME. His practice includes family
medicine and addiction medicine, including Suboxone therapy. Dr. Cicek's training,
No. 15AP-456 8
clinical practice, and experience is similar to appellant's practice and the record supports
that she has expertise in treating patients with chronic pain.
{¶ 18} Moreover, given that the board is comprised of individuals who are trained
medical professionals, the board may rely on its own expertise to determine whether a
physician failed to conform to minimum standards of care. Arlen v. Ohio State Med. Bd.,
61 Ohio St.2d 168, 172 (1980). The Arlen court further explained, at 174, as follows:
The requirement for expert testimony in the record of a
license revocation proceeding usurps the power of the State
Medical Board's broad measure of discretion. The very
purpose for having such a specialized technical board would
be negated by mandating that expert testimony be presented.
Expert opinion testimony can be presented in a medical
board proceeding, but the board is not required to reach the
same conclusion as the expert witness. The weight to be
given to such expert opinion testimony depends upon the
board's estimate as to the propriety and reasonableness, but
such testimony is not binding upon such an experienced and
professional board.
{¶ 19} Further, appellant argues that Dr. Cicek was not credible. As stated, the
common pleas court in its review must give due deference to the administrative resolution
of evidentiary conflicts. Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 111 (1980). We
cannot find fault with the trial court for refusing to substitute its judgment for the board's
judgment. Appellant's first assignment of error is overruled.
{¶ 20} Many of appellant's other assignments of error contest whether the board
properly concluded that he failed to meet the standard of care in various ways. A review
of Dr. Cicek's report, as the state's expert, is appropriate to determine whether the trial
court abused its discretion in finding there was reliable, probative, and substantial
evidence in the record and that the decision was in accordance with law.
{¶ 21} Dr. Cicek's report reviewed each of the 14 patient's records and concluded,
as follows:
[Patient 1:]
Although the notes were VERY difficult to read due to
illegible handwriting, there did not appear to be a notation of
where the patient was receiving treatment during her
absence from Dr. DeMint's practice.
No. 15AP-456 9
***
[T]he initial exam was essentially normal and there was no
reference to prior therapies attempted or to tests on file. An
[Ohio Automated Rx Reporting System] report was
completed when he assumed care however no urine
toxicology was done.
At the initial visit, narcotic medication was prescribed, along
with cyclobenzaprine and ibuprofen. The physical exam and
test findings did not support the level of pain described or
the medications used. There were no goals of therapy or
plan for trying different medications (ie appropriate
medication for Fibromyalgia). There were no referrals for
Physical Therapy or other non-medication therapies.
Narcotics are specifically NOT recommended for
fibromyalgia. All of the above deviate from the standard of
care.
In my opinion, the care instituted did depart from the
minimal standard of care that would be provided by similar
practitioners and a failure to employ acceptable scientific
methods in drug selection occurred. No obvious patient
harm occurred. The patient notes were often illegible, which
is also not acceptable patient care, specifically in the setting
of pain management.
[Patient 2]
Her initial visit with Dr. DeMint was 8/20/10 at which time
there is no note of a narcotic contract, no toxicology screen,
and no written review of previous tests. In notes, he states
she is returning from a different provider due to
dissatisfaction with the previous provider's care. At her
initial visit, the patient was prescribed oxycodone and
Oxycontin (patient stated that Oxycontin had worked for her
in the past). There were multiple mentions of anxiety and
depression and significant life/home stressors and Dr.
DeMint appropriately referred her to a psychiatrist in
October 2010 after trying a few different antidepressants.
The patient never followed through with this referral due to
"problems with insurance."
The documentation for this patient was often difficult to read
and information was scant. Physical exams were not
consistent with the subjective level of disability. The patient's
severe anxiety and depression did not appear to have been
No. 15AP-456 10
well treated, as there were constant complaints of this
through the record. Treating her anxiety and depression
appropriately and utilizing the expertise of a psychiatrist
would likely have aided in her pain management. The
medication used to manage her chronic anxiety was not
ideal. The amount of narcotic the patient received was not
supported by her clinical findings (exam and tests). This
demonstrates a departure from minimal standards of care
that would be employed by similar practitioners.
[Patient 3]
There is no note of review of previous records/radiology
received from the ED, nor is there any note regarding the
urine toxicology results. It remains unclear where the patient
obtained Valium.
There are several concerns in the care of this patient. Sloppy
records, including lack of co-signatures on narcotic
contracts, incorrect dates on forms and urine tests that do
not correlate with the patient's prescriptions. The patient
received a large number of oxycodone at his initial visit prior
to any record review. He was not brought back for one
month. When the patient had buprenorphine in his urine
and lacked oxycodone and did not appear to be in opiate
withdrawal, he was given his normal prescriptions.
This care does not meet minimal standards of care for
similar practitioners and the medication doses and amounts
are not supported by radiologic findings. (the CT of the
lumbar spine in 9/10 is essentially normal). The
documentation is insufficient to support the medication
choices and red flags are not addressed, showing failure to
employ scientific methods in drug selection/treatment.
[Patient 4]
Concerns regarding this patient include the incomplete past
medical history (hepatitis B), personal and family drug
history and high dose narcotics with minimal findings on
lumbar spine MRI and lumbar spine exam. The patient did
have some findings on thoracic spine MRI but physical exam
findings were essentially normal with the exception of
decreased shoulder abduction. The patient was referred to
physical therapy at the last note in April 2011 and this is the
first time previous PT was noted.
No. 15AP-456 11
The minimal standards of care were not met in regards to
documentation of need for high dose narcotics; other
standard therapies for pain and anxiety were not
documented and the choice of medication was excessive
considering the radiologic findings. The patient has Hepatitis
B which raises the question of previous IV drug use and a
chaotic home environment was mentioned which is a less
than ideal situation for using large amounts of and high dose
narcotics.
[Patient 5]
The initial visit documentation is vague, mentioning an ankle
surgery and "knee fracture" but no dates, details or previous
therapies are addressed in this note. There is no active
problem list in the chart and the initial history and physical
form in the chart (2004) is incomplete.
***
The patient had been on high dose narcotics prior to Dr.
DeMint's assumption of his care. A more thorough review of
his previous history may have supported the high dose
narcotics, however, the amount of medication appears to be
excessive for what is documented in the chart (by subjective
findings, physical exam and previous tests). Lack of an
OARRS search and urine toxicology at the time Dr. DeMint
assumed the patient's care is also not consistent with
standard practice.
Deviations from the minimal standard of care include
insufficient chart notes to support chosen medications, large
amounts of Valium in a person working as a carpenter and
who drinks and insufficient physical findings to support the
amount of medication prescribed.
[Patient 6]
The initial exam is essentially a "fill in the blank" form and
mentions decreased lumbar spine ROM and decreased
sensation on right but unable to read what area of the body
due to illegible handwriting.
***
Pain medication for this patient is not inappropriate but
there are concerns. His urine toxicology was inappropriately
No. 15AP-456 12
negative for oxycodone, he had consistently high levels of
pain but mentions fishing and camping as activities, and he
is receiving no mental health care with the exception of daily
benzodiazepines. It is not clear how the inappropriate
toxicology tests were addressed. It was also not clear the
patient was progressing toward any goals.
This patient's care deviated from minimal standards as
evidenced by the lack of follow through on inappropriate
toxicology screens and continued prescriptions for narcotics.
The choice of medication for the patient's anxiety also
deviates from standards of care reflected by the dose and
amount prescribed as well as duration of use. The medical
record is illegible in places and very difficult to read which is
inappropriate for a patient receiving this type of treatment
(covering providers need to be able to read the chart).
[Patient 7]
Issues of concern regarding this patient's care include his
receipt of a month supply of Xanax and Percocet 10/325 with
a minimal physical exam and undocumented history. A more
prudent approach would have been to give the patient a 1-2
week supply of medication and require him to return with
documentation of prior care and prior therapy, including
specialist consult reports and PT reports. The documented
physical exam did not support this amount of medication.
There was no note of the patient receiving any other therapy
for his anxiety, ie counseling or SSRI medication. (old
records indicate patient was hospitalized in July 2010 for
suicidal ideation)
The patient was promptly and appropriately discharged
when it was found that he was receiving prescriptions from
other providers, however, this patient's initial treatment
deviated from minimal standards of care as evidenced by a
physical exam that does not support the amount of
medication he was given and lack of records/information to
support such a large amount of medication.
[Patient 8]
She had a brief history including prior medications but no
note of previous non-medicine therapies. * * * The physical
exam was brief and the only noted abnormality was
decreased range of motion in the lumbosacral spine "in all
planes".
No. 15AP-456 13
Approximately 40 to 50% of the notes are illegible and it is
unclear from the chart if the patient was seen in this clinic
previously. (It appears she was treated for a Worker's Comp
claim in 2008/9.) The chart was somewhat disorganized as
well with no legible reference to the prior Worker's Comp
care.
***
There are several concerns regarding this patient's care. She
is given a substantially larger dose of narcotic at her first visit
than she had been receiving from her previous provider. Her
documented physical exam does not support the amount of
narcotic prescribed. There is mention of patient having a
problem with the previous provider which is not investigated
prior to her one month prescription. No urine toxicology is
sent at her first visit. When the patient complains of feeling
stressed, she is given #90 Xanax and not referred for any
behavioral therapy. The more logical approach would be to
provide a small number of benzodiazepines while the SSRI is
taking effect. There was no history documented regarding
prior evaluation or treatment for anxiety or depression. I was
unable to locate any notes from Dr. DeMint regarding
documentation supporting her prior back surgeries or
radiology tests.
This departed from minimal standards in several areas noted
above. The selection of medications/amount of medication
was not appropriate. Appropriate non-medication therapies
were not explored for the patient's skeletal pain and anxiety.
The physical exam did not support the level of the patient's
pain or amount of medication prescribed. The notes were
often difficult to read/interpret.
[Patient 9]
Concerns regarding this patient's care include his receiving a
month of medicine despite the note he was discharged from
another provider, no urine drug screen at initial visit and 3
more urine drug screens which had at least one inconsistent
value. This patient also appeared to have fairly severe COPD
(noted to be on oxygen) and was taking very large doses of
drugs that depress the respiratory center in the brain. There
was no family history documented re: drugs/etoh and later
in the chart it is noted that the patient had 3 relatives staying
with him who were on Suboxone.
No. 15AP-456 14
The medication selection and treatment deviated from
minimal standards for similar providers as evidenced by high
doses of narcotics with minimal objective findings (exam and
radiology) and continued prescriptions with inconsistent
toxicology screens. The medications used to treat this
patient's anxiety (Alprazolem) is not the appropriate first
line of therapy.
[Patient 10]
The patient was on high doses of narcotics for his MRI
finding (both oxycodone and tramadol). His physical exam
was normal at all visits, including reflexes and lower
extremity strength. There was no note of a positive straight
leg raise test.
This patient's care deviated from minimal standards in
regards to the amount of narcotic medication he was
prescribed (high doses and large amounts) considering an
essentially normal physical exam. The care also deviated
from what is considered typical care, a regular non-steroidal
anti-inflammatory with either gabapentin or Lyrica and a
small amount of narcotic pain medication for exacerbations.
[Patient 11]
This patient was being treated for chronic low back pain,
DDD and depression. His MRI findings were not consistent
with his pain complaint. A urine toxicology sent 9/9/10 was
positive for THC, hydrocodone (which the patient stated he
was allergic to) and benzodiazepine. These were all
inconsistent with his prescribed medication.
It would not be in the best interest of a patient to provide a
one month prescription of narcotic when there is a question
of previous drug abuse. The patient's history of an
inconsistent urine toxicology is not noted in the chart at this
initial visit although it appears that they were available. A
more thorough evaluation of this patient's history should
have been completed and at the very least, he should only
have been given one week of medicine pending review of old
records. Physical exam notes are difficult to read and
minimal at most visits, with the exception of right SI joint
pain. This patient's care does not meet the minimal
standards of care expected in regards to the choice and
amount of medication prescribed related to the patient's
No. 15AP-456 15
radiologic findings and physical exam. There is also a
departure from the minimal standard of care as compared to
the care of similar practitioners as evidenced by the initial
prescription in light of a clear history of illicit drug use.
[Patient 12]
On the patient's initial visit with Dr. Demint, there is no note
of a chart review, there is a brief past medical history, past
surgical history and social history where it is noted "no
drugs". * * * There is no indication of previous treatment (ie
counseling, non-controlled drugs) for this patient's anxiety,
nor is any indication of review of prior therapies for pain or
prior imaging. Several of the notes are illegible.
***
There is also no indication that this patient has had any
appropriate counseling, non-narcotic drug trial or other
therapy for his anxiety and there is no discussion of the effect
of marijuana on his anxiety and other medications. This
patient is noted to have COPD which is called moderate to
severe on chest x-ray and is on high doses of medications
which are known to depress the respiratory drive.
This patient's care departs from minimal standards in
several ways, including prescribing narcotics and anxiolytics
to a known illicit drug user and prescribing high doses of
narcotics to someone with underlying COPD. The office
notes are poorly organized and it is difficult to determine the
extent of the patient's physical findings without going
through extensive old records. This is another example of
deviation from minimal standards of care. The medications
used also do not meet minimal standards as suggested by
using benzodiazepines for anxiety in an illicit drug user and
not trying non-controlled options or psychotherapy first.
[Patient 13]
There was no active problem list in the chart, no initial
history and physical and basically little to no past med
history. Dr. Demint's initial note in March 2010 is brief, does
not address previous care, tests or treatment.
***
No. 15AP-456 16
The physical exams did not support the patient's pain level.
Previous radiology included MRIs of the lumbar spine and
ankle, both with some abnormalities, however they do not
support the high dose of narcotic the patient was receiving
(30 mg oxycodone #120/mo). The patient's depression did
not appear to be adequately treated and it was unclear if she
was receiving counseling. Her undertreated depression likely
increased her pain perception.
In general, the documentation for this patient did not
support the amount of medication she was receiving and
despite requiring an early refill in 4/10, urine toxicology
screens were not done until October 2010. OARRS reports
and ancillary therapies were not documented in her notes.
The absence of these measures deviates from the minimal
standard of care. The large amounts of high doses of narcotic
do not meet minimal standards for appropriate medication
choice in this patient at high risk for narcotic
addiction/abuse.
[Patient 14]
At the time of transfer of care, there was no urine toxicology
screen, no OARRS report and very brief HPI and physical
exam. The chart has a large amount of old records, including
information regarding discharge from a previous pain clinic
for a failed urine toxicology and an evaluation by an
independent examiner expressing concern regarding this
patient's high dosage of controlled medications in the
situation of an essentially normal physical exam.
Throughout his course of care, the patient seemed to need
continually higher doses of narcotic medication and did not
tolerate for various reasons, non-controlled drugs which are
indicated for neuropathic pain.
***
Office notes are difficult to read due to illegible handwriting,
however, improvements in function are not noted and
physical exams, which are brief, are normal.
This patient's care did not meet the minimal care standards.
Deviations of standard of care include continually escalating
doses of narcotic medication when they do not seem to be
improving pain or function as well as not sending a urine
toxicology at the time of assuming the patient's care. (he was
No. 15AP-456 17
discharged from a previous physician for a failed toxicology
screen). There was no summary of the plan to date when Dr.
Demint assumed care and no measure of improvement in
function. Also, of concern, is the patient's inability to tolerate
gabapentin or Lyrica, both indicated for neuropathic pain.
The patient is only able to tolerate Soma which is
metabolized to a barbiturate. This was never addressed with
the patient or mentioned in the assessment and plan. The
patient does not receive any psychological referral or
counseling which is clearly indicated. The doses and
amounts of medication the patient received are excessive
compared to the physical exam and radiology findings.
Lastly, consulting physicians comment on the high doses of
narcotics and near normal physical exam, this is not
addressed by Dr. Demint.
(Emphasis sic.; State's Ex. 16.)
{¶ 22} By his second, third, and sixth assignments of error, appellant argues that
the board improperly disciplined him for poor handwriting, inadequate charting of the
treatment of his patients, and failure to document in the file that he reviewed the file each
time he did so. The board found that appellant's medical charting for Patients 3, 6, 8, and
12 was incomplete, often illegible and/or disorganized.
{¶ 23} In addition to her written report, Dr. Cicek testified at the hearing regarding
her concerns with the care given to each of these patients. As to Patient 3, she stated she
had "a lot of trouble reading the notes [due to the handwriting]." (Tr. Vol. II at 363.) Dr.
Cicek found that there was no documented reason for increasing the patient's narcotics
and appellant did not document that he had reviewed the previous records. Dr. Cicek
testified regarding Patient 6 that appellant did not document the goals or expectations for
the patient's treatment and that violates the board's rules because a practitioner must
develop an individualized treatment plan. The records do not indicate the reason for the
prescriptions. The record does not properly reflect how appellant addressed the
inconsistency of the toxicology screens with the patient and the follow-up with the
patient. Dr. Cicek stated Patient 6's record fell below the standard of care because there
was no documentation as to the follow through on the toxicology screens, the lack of
individualized treatment plans, and the legibility.
No. 15AP-456 18
{¶ 24} Dr. Cicek testified that Patient 8 received a higher dose of narcotics at the
initial visit with appellant, but no documentation as to the rationale. The assessment or
plan does not address the increase in medication. Appellant did not document that he
reviewed the prior records. There is no individualized treatment plan. Dr. Cicek stated
the overall charting fell below the standard of care.
{¶ 25} Regarding Patient 12, Dr. Cicek testified that appellant failed to record in
the record any review of attempted modalities of pain management, any review of the
patient's current level of function or functional goals, and any individualized treatment
plan. Appellant's notes were "poorly organized and it was difficult to determine the extent
of the patient's physical findings without going through extensive old records." (Tr. Vol. II
at 449.) Parts of the record were illegible.
{¶ 26} Appellant argues that Dr. Ellis Frazier found his records were substantially
legible. Dr. Frazier also stated that a physician is not required to note in the patient file at
each consultation that the physician reviewed the file. Further, Dr. Frazier stated that a
physician is not required to state what each prescribed drug is intended to treat as long as
the entire record shows a specific diagnosis and that the prescribed drug is a known
treatment for the diagnosis. Dr. Frazier believed appellant appropriately documented
evaluations, diagnoses, and treatment plans.
{¶ 27} Board member Dr. Steinbergh found that appellant's "medical records
lacked a great deal of information." (Board's Ex. D at 5.) Dr. Steinbergh stated that "one
of the reasons medical records are kept is so that any practitioner can follow the
physician's thought process and treatment plan." (Board's Ex. D at 5.) At that board
meeting, Dr. Steinbergh noted that Dr. Prior testified at the hearing that, in his opinion,
appellant's records demonstrated minimal standards.
{¶ 28} Moreover, appellant focused his arguments on specifics, such as his
argument that handwriting cannot be the basis of discipline. However, the board found
more here than illegible handwriting. The board found both his medical documentation
and charting were incomplete and not thorough, disorganized, illegible, and lacking
necessary medical information. Despite appellant's evidence supporting his position, the
record is replete with evidence supporting the board's determinations. The trial court
determined that it could not substitute its opinion as to proper and adequate charting for
No. 15AP-456 19
the opinion of the experts that serve on the board. The record contains evidence
constituting substantial, reliable, and probative evidence. We cannot find that the trial
court abused its discretion in so finding. Appellant's second, third, and sixth assignments
of error are overruled.
{¶ 29} In his fourth assignment of error, appellant contends the board erred in
finding that he improperly prescribed narcotics. Appellant argues that the board
improperly found that he prescribed large doses of opioids because the doses he
prescribed were "in the box." Since appellant prescribed a dose below the 180 milligram
per day morphine equivalent, he contends that he did not prescribe a dose that was too
high.
{¶ 30} Appellant testified that "in the box" refers to practices that are commonly
accepted and "out of the box" refers to uncommon practices, pursuant to an article from
medscape.org. (Tr. Vol. III at 671.) The article references opiate doses in the moderate
range of 180 milligrams morphine equivalent per day. Thus, appellant argues that he
prescribed doses that were "within the box" and, thus, the board cannot discipline him on
that basis.
{¶ 31} However, Dr. Cicek focused on more than the amount of drugs prescribed.
Her testimony focused on the fact that the type and amount of narcotics was
inappropriate given the patient's history, assessment, and the medical judgment
employed based on the presentation of these patients. For example, regarding Patient 1,
Dr. Cicek testified that 30 milligrams of hydrocodone per day that appellant prescribed at
the patient's first visit was excessive. The physical examination documented by appellant
did not support that medication dosage. Dr. Cicek testified that Norco 10/325 is stronger
than Vicodin and the record was not clear for what diagnoses appellant prescribed the
Norco. Dr. Cicek testified that appellant inappropriately prescribed narcotics for Patient
1's fibromyalgia.
{¶ 32} Regarding Patients 1 through 5, and 7 through 14, Dr. Cicek testified that
appellant failed to document a physical examination. Dr. Cicek testified there was a lack
of physical examination findings documented to support the level of narcotics prescribed.
She noted that the examinations were incomplete, minimal, or not documented at all. Dr.
Cicek testified that a family physician's chart should include the following:
No. 15AP-456 20
[A]n initial visit with a primary care provider, a family
physician, typically reviews the patient's past medical
history, past surgical history, family history, and social
history. If they are coming in for a specific problem, the
previous treatment of that problem and how the problem
responded to that treatment. The current medications the
patient's taking, their current allergies, and what their
current complaints are.
And, again, if we're talking about a situation where they're
complaining of chronic pain, how that pain's limiting their
function, their ability to proceed or, you know, live a
productive life.
And then a thorough physical exam. Often a review of
systems if something's not addressed in what we call the
HPI, the history of the present illness. A review of systems, a
physical exam, and then an assessment and plan. And your
assessment isn't simply a diagnosis; it's your thought process
behind what leads you to that particular diagnosis.
(Tr. Vol. II at 354-55.)
{¶ 33} Dr. Cicek testified that regarding Patient 1, she found the dose of
hydrocodone per day that appellant prescribed at the first visit was excessive and the
physical examination documented at that first visit does not support that dose of
medication.
{¶ 34} Moreover, regarding Patient 2, Dr. Cicek testified that the physical findings
appellant documented did not support the amount of controlled substance medication he
prescribed. Dr. Cicek testified that the documentation of the physical examination was
only "MS full ROM LS spine" and that documentation was lacking because a
"musculoskeletal exam encompasses more than range of motion of the lumbosacral spine.
It encompasses reflex testing, strength, sensation, range of motion, muscle asymmetry or
atrophy." (Tr. Vol. II at 357-58.)
{¶ 35} Dr. Cicek testified similarly for Patients 3 through 5 and 7 through 14, that
the history and physical examination findings documented did not support the amount of
narcotics prescribed. She consistently found that appellant should have determined
whether the patients were proper candidates for narcotics or should have been treated
with other non-narcotic methods.
No. 15AP-456 21
{¶ 36} Appellant argues that the board and the trial court failed to distinguish In re
Williams, 60 Ohio St.3d 85 (1991). Appellant contends that Williams holds that with the
facts of this case, the board could not rely on its own expertise. However, the facts of this
case are distinguishable from the facts in Williams. In Williams, the Supreme Court of
Ohio found that the board has "broad discretion to resolve evidentiary conflicts * * * and
determine the weight to be given expert testimony." Id. at 87. In that case, the doctor
dispensed controlled substances in a legally permitted manner but in a manner disfavored
by the medical community. The only evidence in the record was the expert testimony that
the practice of Dr. Williams did not fall below the acceptable standard of medical practice.
The board then disagreed with the expert. The Supreme Court determined that the board
cannot convert its disagreement with an expert's opinion into affirmative evidence of the
opposite position where the issue is one on which medical experts are divided and there is
no statute or rule governing the issue. This case differs from the one in Williams,
however, because here there was expert opinion evidence submitted on both sides of the
issue. The board did not simply choose the opposite position of appellant, but, rather, the
board chose an expert opinion other than appellant's expert's opinion. The record
contains evidence supporting the board's position.
{¶ 37} Given this evidence in Dr. Cicek's report and testimony, the trial court did
not abuse its discretion in finding that the record contains evidence constituting
substantial, reliable, and probative evidence. Appellant's fourth assignment of error is
overruled.
{¶ 38} In his fifth assignment of error, appellant contends the board erred in
finding that he prescribed narcotics before receiving information and failed to act on
inconsistent test results.
{¶ 39} The hearing officer found the evidence was insufficient to support a finding
that appellant practiced below the minimal standard of care by failing to obtain toxicology
screens prior to prescribing narcotics to Patients 2, 5, 9, and 11 through 14. The evidence
establishes that appellant did obtain an in-house urine screen on Patient 1 at her initial
visit. The hearing officer found that appellant's assertion that the standard of care does
not require a physician to obtain an initial drug screen prior to prescribing narcotics was
persuasive and found the evidence insufficient to support a finding that appellant
No. 15AP-456 22
practiced below the minimal standard of care. The board did not amend this finding.
Thus, the first contention in appellant's fifth assignment of error is overruled.
{¶ 40} Appellant also contends the board erred in finding that he failed to act on
inconsistent test results. Appellant contends that he did act on inconsistent test results.
However, he continued to prescribe a one-month supply of narcotics for months before he
acted on the inconsistent test results. Dr. Cicek testified that although urine screens
should be verified because of the possibility of false positives, a cautious approach to
further treatment is necessary after an inconsistent result. She testified that a one to two-
week supply of narcotics should be prescribed rather than an entire month. The
medication should be changed in amount or number of pills prescribed. The patient
should be more closely monitored. Given this evidence, appellant's fifth assignment of
error is overruled.
{¶ 41} In his seventh assignment of error, appellant contends the trial court erred
in finding there was substantial, reliable, and probative evidence that appellant treated or
failed to discharge a patient who admitted to abusing illegal drugs. Patient 12 admitted
using marijuana after a urine screen tested positive. Appellant discussed that marijuana
was illegal in Ohio with the patient, but appellant admitted he continued to prescribe
controlled substances to the patient for months.
{¶ 42} Appellant further contends in his argument section in this assignment of
error that he disagrees with Dr. Cicek's opinion that when a patient admits to drinking six
beers in a weekend, that the patient must be counseled not to mix alcohol and narcotics.
Appellant claims he can rely on the warning from the pharmacist.
{¶ 43} Dr. Cicek testified under circumstances that indicate drug abuse, especially
illegal drugs, that the provider should discharge the patient. When a urine sample
indicates the patient is using drugs that were not prescribed or not using drugs that were
prescribed, at a minimum, the provider must limit prescribing to ten days to two weeks
worth of medication and then re-evaluate the patient after confirmation of the laboratory
results. Appellant continued prescribing a one-month supply. Given this evidence in Dr.
Cicek's report and testimony, the trial court did not abuse its discretion in finding that the
record contains evidence constituting substantial, reliable, and probative evidence.
Appellant's seventh assignment of error is overruled.
No. 15AP-456 23
{¶ 44} In his eighth assignment of error, appellant contends that it was prejudicial
error to find that he improperly treated fibromyalgia. Appellant diagnosed Patient 1 with
a degenerative disk disease of the lumbar spine, fibromyalgia, tendonitis, bunion, and
skin lesion. Appellant testified he prescribed Norco, not just for the patient's fibromyalgia,
but also as treatment for her overall pain.
{¶ 45} Dr. Cicek's report specified that prescribing narcotics for fibromyalgia
deviated from the standard of care. Dr. Cicek also testified:
Fibromyalgia is a constellation of symptoms that is -- has no
appreciable objective test besides pressure points to make
the diagnosis. Often it's a diagnosis of exclusion when people
have a pain syndrome often complicated by a mood disorder,
fatigue.
(Tr. Vol. II at 344.)
{¶ 46} Dr. Cicek continued and stated that narcotics are not appropriate for
fibromyalgia "because there are classes of drugs that are appropriate and have been
proven to actually improve function in fibromyalgia," including Lyrica and Cymbalta. (Tr.
Vol. II at 345.) Dr. Cicek testified that the physical examination documented by appellant
did not support the level of medication he prescribed.
{¶ 47} Moreover, appellant submitted evidence on remand that supported the
finding that it is not appropriate to treat fibromyalgia with an opioid. The formerly
proffered testimony of Dr. Prior provided that it was not appropriate to do so. Appellant
also submitted an article published in the September 2013 issue of The Journal of the
American Osteopathic Association, Fibromyalgia: A Clinical Update, in which the
author writes that opioids have not been demonstrated as effective in the management of
fibromyalgia and should be avoided.
{¶ 48} Appellant further argues that the hearing officer found appellant improperly
prescribed narcotics for the treatment of fibromyalgia and this finding must be reversed
due to a fatal variance. Appellant contends that the charge was inappropriately
prescribing narcotics for fibromyalgia but the finding was an improper diagnosis for
fibromyalgia. A fatal variance occurs where the allegations and the evidence do not
correspond. James Reynolds & Co. v. Morris, 7 Ohio St. 310 (1857). While appellant is
correct that the board discussed the methodology of his diagnosing Patient 1's
No. 15AP-456 24
fibromyalgia, the finding was not that he had misdiagnosed the patient, but, rather, he
prescribed narcotics for a condition that narcotics were inappropriate to treat. Thus,
given this evidence, the trial court did not abuse its discretion in finding that the record
contains evidence constituting substantial, reliable, and probative evidence. Appellant's
eighth assignment of error is overruled.
{¶ 49} In his ninth assignment of error, appellant contends that it was prejudicial
error for the board to find that he failed to warn a Chronic Obstructive Pulmonary Disease
("COPD") patient properly of the dangers of narcotics and oxygen. Appellant again argues
that a fatal variance exists because the board focuses on prescribing these medications
and not the documentation of the discussion of the risks with the patient.
{¶ 50} However, the finding by the board was that appellant fell below the
standard of care by prescribing high doses of narcotics to Patients 9 and 12, both of whom
had COPD, without properly documenting the proper patient consultation. In her report,
Dr. Cicek stated, "[Patient 9] also appeared to have fairly severe COPD (noted to be on
oxygen) and was taking very large doses of drugs that depress the respiratory center in the
brain." (State's Ex. 16 at 9.) Regarding Patient 12, Dr. Cicek noted, "This patient is noted
to have COPD which is called moderate to severe on chest x-ray and is on high doses of
medications which are known to depress the respiratory drive. This patient's care departs
from minimal standards in several ways, including prescribing narcotics and anxiolytics
to a known illicit drug user and prescribing high doses of narcotics to someone with
underlying COPD." (State's Ex. 16 at 11.)
{¶ 51} Further, in her testimony, Dr. Cicek testified that it was below the standard
of care to prescribe such a high dose of narcotics on the first visit. "And the last time the
patient had received a long-acting opioid was * * * four months prior to the visit where
he's given OxyContin 60 and 120 high-dose Percocets. So to go from nothing to that in a
patient with COPD severe enough to require oxygen is very concerning" and below the
standard of care. (Tr. Vol. II at 424-25.) She expressed the same concern regarding high-
dose narcotics in a patient with an underlying lung dysfunction for Patient 12.
{¶ 52} The minutes of the November 5, 2014 meeting indicate that when
discussing Patient 9, who had been prescribed OxyContin and oxycodone by appellant,
Dr. Ramprasad commented that "while [it] was not a fatal mistake, physicians must be
No. 15AP-456 25
very careful when prescribing these medications because of possible respiratory
depression." (Nov. 5, 2014 Minutes at 3.) The board is the one to resolve any evidentiary
conflicts regarding medical issues and is in the best position to do so. The trial court
found the evidence meets the requisite legal standard and we cannot find that the trial
court abused its discretion in so finding. Appellant's ninth assignment of error is
overruled.
{¶ 53} By his tenth assignment of error, appellant contends that it was prejudicial
error for the board to apply post-claim statutory changes and newly announced standards
of care. Appellant's argument under this assignment of error is that "[a]ny standard of
care espoused by Dr. Cicek is not practiced by any other doctor. If her standard of care is
accepted, then Dr. Demint was unaware of it and due process is violated when a rule is
created after the fact and applied to him." (Appellant's Brief at 48.)
{¶ 54} The board has promulgated rules for treating intractable pain with
narcotics. See Ohio Adm.Code 4731-21-02. Dr. Cicek repeatedly testified regarding the
standard of care. "[C]ourts must afford due deference to the board's interpretation of the
technical and ethical requirements of its profession." Pons at 621. The reasoning behind
this standard is that " ' "[T]he purpose of the General Assembly in providing for
administrative hearings in particular fields was to facilitate such matters by placing the
decision on facts with boards or commissions composed of [people] equipped with the
necessary knowledge and experience pertaining to a particular field." ' " Id. at 621-22,
quoting Arlen at 173, quoting Farrand v. State Med. Bd., 151 Ohio St. 222, 224 (1949).
Thus, the board is comprised of experts in the field of medicine and, therefore, the board
is in the best position to determine whether a physician met the standard of care in the
field of medicine. We cannot say the trial court abused its discretion in finding that the
record contains evidence constituting substantial, reliable, and probative evidence.
Appellant's tenth assignment of error is overruled.
{¶ 55} In his eleventh and twelfth assignments of error, appellant contends the
basis of the board's decision was a new board member's comments that were
inflammatory and mischaracterizations of the evidence and the board imposed vindictive
punishment. Appellant argues that board members made improper comments not based
on the evidence and then penalized him. In essence, appellant contends that "[t]he Board
No. 15AP-456 26
silently found and punished a 'pill mill' specifically found not to exist." (Appellant's Brief
at 52.)
{¶ 56} Appellant complains that Dr. Soin's comments were inflammatory. The
November 5, 2014 board minutes contain statements attributed to Dr. Soin noting:
[I]rregularities with Dr. Demint's practice, most notably that
it was a cash-pay practice, visits cost $200.00, and patients
had a 99% chance of being prescribed controlled substances.
Dr. Soin stated that, according to a Medicare profile of
physicians, 74% of pain management physicians wrote at
least one prescription for a scheduled substance that year.
Dr. Soin therefore found it very concerning that Dr. Demint,
who was not a pain management physician, prescribed
scheduled substances for 99% of his patients.
(Nov. 5, 2014 Minutes at 4.)
{¶ 57} Dr. Soin's remarks were a restatement of the evidence. Appellant testified
that his practice only accepted cash and 99 percent of his patients received controlled
substances. When a board member restates appellant's own testimony, those comments
cannot be construed as "highly prejudicial." Dr. Soin also proposed the amendment to the
hearing examiner's proposed order and commented that appellant "did not 'get it' when it
comes to pain medications." (Nov. 5, 2014 Minutes at 4.) Dr. Soin believed appellant had
the ability to offer good service to patients, but not in the field of pain management. Dr.
Soin utilized his own expertise to interpret the evidence and conclude that appellant
should not be prescribing narcotics to patients.
{¶ 58} Mr. Giacalone agreed with Dr. Soin. Mr. Giacalone commented that
appellant was not operating a "pill mill" because "a typical 'pill mill' pattern would be to
prescribe the same regiment for every patient, whereas Dr. Demint's prescriptions varied
between patients." (Nov. 5, 2014 Minutes at 15-16.) Mr. Giacalone believed it was clear
that appellant "overprescribed" and his "prescription habits do not necessarily fit within
proper parameters." (Nov. 5 2014 Minutes at 16.) Mr. Giacalone expressed concern that
given the "arrogance" of appellant's testimony and the "forthrightness of his convictions"
appellant will return to his previous prescribing habits. (Nov. 5, 2014 Minutes at 16.) Mr.
Giacalone supported Dr. Soin's amendment because it permanently prohibits appellant
from prescribing narcotic analgesics.
No. 15AP-456 27
{¶ 59} Here, the board members' expertise and the evidence formed the basis of
their comments. All the board members had the benefit of the hearing examiner's report
and, therefore, mitigated the danger of any one board member's comments unduly
influencing the other board members. The board minutes set forth in some detail the
factors and evidence in the record that the board considered exacerbating, leading to the
modification of the order and penalty. Despite the fact that appellant does not agree with
the result, the comments do not constitute reversible error.
{¶ 60} Appellant further argues that, upon remand, the board imposed an
increased penalty and he has demonstrated actual vindictiveness on the board's part in
penalizing him for exercising his right to an appeal, thereby denying him due process.
{¶ 61} On remand, the trial court tasked the board with considering the matter
again. A trial court may remand for further proceedings, which means "that the case is
returned to the administrative agency so that it may take further action in accordance
with applicable law. Such a remand does not dismiss or terminate the administrative
proceeding but, rather, means that the agency may take a fresh look at the matter."
Chapman v. Ohio State Dental Bd., 33 Ohio App.3d 324, 328 (9th Dist.1986), citing
Tucson v. Mills, 114 Ariz. 107 (App.1976). The composition of the board had changed
between the meetings. The board was not required to impose the same sanction.
{¶ 62} Furthermore, another aspect of the hearing may have influenced the board
to impose a heavier penalty after remand. It is apparent from the minutes of the meeting
that the board members found appellant arrogant during his testimony and appellant
exhibited a disregard for the standards of care. Under the board's disciplinary guidelines,
aggravating circumstances can include dishonest or selfish motive, a pattern of
misconduct, multiple violations, refusal to acknowledge wrongful nature of conduct, and
adverse impact and misconduct on others. The board minutes set forth the factors and
evidence from the record that the board considered to be exacerbating, which led to the
modification of the penalty.
{¶ 63} The board has the authority to impose a wide range of sanctions, pursuant
to R.C. 4731.22, ranging from reprimand to revocation. The board has the authority to
restrict a physician's license permanently. Clark v. State Med. Bd. of Ohio, 10th Dist. No.
14AP-212, 2015-Ohio-251. The court of common pleas, in concluding that the board's
No. 15AP-456 28
order was supported by reliable, probative, and substantial evidence was precluded from
modifying the penalty imposed if the penalty was authorized by law. Henry's Cafe, Inc. v.
Bd. of Liquor Control, 170 Ohio St. 233 (1959), paragraphs two and three of the syllabus.
The discretion granted to the board in imposing a wide range of potential sanctions
reflects the deference due to the board's expertise in carrying out its statutorily granted
authority over the medical profession.
{¶ 64} Moreover, there is no evidence that the board changed appellant's sanction
for "vindictive" purposes. In North Carolina v. Pearce, 395 U.S. 711 (1969), the United
States Supreme Court set aside the sentence of a prisoner who had successfully appealed
his conviction but, on remand, a harsher sentence was imposed. The United States
Supreme Court found that the prisoner's due process rights were violated when the
harsher sentence was imposed after the successful appeal because of vindictiveness. The
United States Supreme Court held that if a harsher sentence is imposed following appeal,
the reasons for the harsher sentence must appear in the record and must be "based upon
objective information concerning identifiable conduct on the part of the defendant
occurring after the time of the original sentencing proceeding." Id. at 726. The United
States Supreme Court clarified its holding in Pearce in Wasman v. United States, 468
U.S. 559 (1984). In Wasman, the United States Supreme Court held that harsher
sentences on remand were not prohibited unless the enhancement was motivated by
actual vindictiveness against the defendant as punishment for having exercised his rights.
Id. at 568. In Alabama v. Smith, 490 U.S. 794 (1989), the United States Supreme Court
further clarified Pearce, by holding that unless there was a "reasonable likelihood" that
the increased sentence was the result of actual vindictiveness, the burden was on the
defendant to show actual vindictiveness. Id. at 799.
{¶ 65} In this case, the board explained its reasoning for its actions and the reasons
were based on the evidence. There is no evidence that the board was acting vindictively.
The board acted within its authority when it issued the order. Based on this court's review
of the administrative record, the trial court did not err in finding there was reliable,
probative, and substantial evidence supporting the limitations and restrictions imposed
by the board. Appellant's eleventh and twelfth assignments of error are overruled.
No. 15AP-456 29
{¶ 66} For the foregoing reasons, appellant's twelve assignments of error are
overruled and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
DORRIAN, P.J., and SADLER, J., concur.