Angerbauer v. State Med. Bd. of Ohio

[Cite as Angerbauer v. State Med. Bd. of Ohio, 2017-Ohio-7420.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Steven R. Angerbauer, M.D., :
Appellant-Appellant, :
No. 17AP-88
v. : (C.P.C. No. 16CV-7014)
State Medical Board of Ohio, : (ACCELERATED CALENDAR)
Appellee-Appellee. :
D E C I S I O N
Rendered on August 31, 2017
On brief: Graff & McGovern, LPA, and John A. Izzo, for
appellant. Argued: John A. Izzo.
On brief: Michael DeWine, Attorney General, and
Melinda R. Snyder, for appellee. Argued: Melinda R.
Snyder.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Appellant-appellant, Steven R. Angerbauer, M.D., appeals from a judgment
of the Franklin County Court of Common Pleas affirming an order of appellee-appellee,
State Medical Board of Ohio ("board"), which permanently denied appellant's application
to practice medicine and surgery in Ohio. For the following reasons, we affirm the
decision of the court of common pleas.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In December 2013, appellant applied for a license to practice medicine and
surgery in the state of Ohio. In his application, appellant disclosed that the Medical
Quality Assurance Commission ("commission") of the state of Washington had initiated
No. 17AP-88 2
an investigation into his medical practice and stated his understanding that the
commission initiated the investigation based on a concern raised by a third party that
someone may have been forging his signature on prescription scripts.
{¶ 3} In June 2014, appellant and the commission agreed to resolve the matter by
way of an "agreed order" that included stipulated findings of fact and conclusions of law.
According to the stipulated findings of fact in the agreed order, between summer 2011 and
February 2013, appellant worked as an occupational medicine physician where his
practice was "limited to treating federal employees for work-related medical issues."
(Agreed Order at 2.)
{¶ 4} Earlier, in June or July 2011, appellant met a 28-year-old female, "Patient
A," at the place of her employment, which the order characterizes as a "Gentlemen's
Club." (Agreed Order at 2.) Patient A told appellant she had chronic lower back pain, did
not have money, insurance, or a physician, and needed help. Appellant maintained a
record for Patient A at his home; the record did not document any inquiry into her
medical and mental health history, which, according to Patient A, included significant
mental health issues and a history of substance abuse. Appellant examined Patient A at a
coffee house, at his home, at a mall tattoo shop where the patient worked, and at a local
gas station. Appellant diagnosed Patient A with chronic lower back pain. He did not
determine the cause of the pain or order imaging or diagnostic tests.
{¶ 5} From August 2011 to February 2013, appellant prescribed hydrocodone
with acetaminophen 10mg/500mg to Patient A on a regular basis. In the first several
months of this period, appellant prescribed 35 to 60 tablets per month to Patient A, an
amount that increased to 80 to 120 tablets per month. When Patient A asked for
Percocet, appellant told her he could not prescribe Percocet to her because he would have
to sign a prescription. To prescribe the hydrocodone, appellant called in the prescription
to a pharmacy and, rather than speaking to the pharmacist on duty, always left a voice
message. After learning that the commission initiated a complaint, appellant stopped
treating and prescribing for Patient A. At some point, appellant gave Patient A $20 and
she used his credit card to pay for one night in a hotel. Appellant offered to pay for her
books when Patient A expressed interest in finishing her GED, and appellant gave Patient
A the food in his refrigerator.
No. 17AP-88 3
{¶ 6} In the agreed order, appellant stipulates that he failed to meet his standard
of care in his treatment of Patient A, that Patient A's records did not justify the long-term
prescribing of hydrocodone, that he repeatedly prescribed hydrocodone in significant
amounts without performing an adequate physical examination or formulating a
treatment plan, that he failed to order diagnostic tests or determine the medical cause of
her pain, and that he failed to have her sign a pain management agreement or take other
steps to prevent diversion of the medication. As a finding of fact, appellant agreed that he
violated pain management administration rules in several respects and breached the
standard of care by violating appropriate physician-patient boundaries in his relationship
with Patient A.
{¶ 7} According to the agreed order, the parties agreed as "conclusions of law"
that appellant violated two sections of the state of Washington's "unprofessional conduct"
statute—Section 4, involving incompetence, negligence, or malpractice which results in
injury to a patient or which creates an unreasonable risk of harm, and Section 7, involving
a violation of any statute or administrative rule regulating the profession—and violated
several sections of Washington's administrative code involving patient evaluation,
treatment plans, informed consent, and written agreements for treatment. (Agreed Order
at 4, 5.) Washington R.C. 18.130.180; Washington Adm.Code Sections 246-919-853 to
856.
{¶ 8} These violations provided grounds for imposing sanctions under
Washington R.C. 18.130.160, "Tier B," as appellant's care of Patient A "created a risk of
moderate to severe harm." (Agreed Order at 8.) After finding appellant's record of no
prior discipline and his expressed remorse as mitigating factors, the commission imposed
sanctions at the minimum range under Tier B, including: monitoring of appellant's license
for a period of two and one-half years, course work on ethics, physician-patient
boundaries, medical record keeping, opioid prescribing, registration with the Washington
Prescription Monitoring Program on his license renewal, and a fine. The agreed order
states that if appellant violates the order in any respect, "the Commission may initiate
further action against [appellant's] license." (Agreed Order at 7.) Furthermore, the
agreed order states:
No. 17AP-88 4
Protection of the public requires practice under the terms and
conditions imposed in this order. Failure to comply with the
terms and conditions of this order may result in suspension of
the license after a show cause hearing. If [appellant] fails to
comply with the terms and conditions of this order, the
Commission may hold a hearing to require [appellant] to
show cause why the license should not be suspended.
Alternatively, the Commission may bring additional charges
of unprofessional conduct.
(Agreed Order at 8-9.)
{¶ 9} In July 2014, appellant sent an e-mail to an enforcement attorney for the
board asserting that "[w]ith respect to Patient A, the Commission's allegations were not
based on any improper treatment or care with narcotics, but rather were based solely on
the lack of strict medical record compliance with [Washington's new] pain management
guidelines," indicating that his treatment of Patient A was reasonable and "resulted in
substantial amelioration," and "[c]learly, Patient A benefitted greatly from her treatment
and care, and was not harmed in any manner." (July 17, 2014 E-mail/State Hearing Ex.
4.) Appellant then contends that "[t]hrough this process, I have realized how I could have
more appropriately managed the care of Patient A within the strict scope of the pain
management guidelines" and the situation "has been a valuable learning experience."
(July 17, 2014 E-mail/State Hearing Ex. 4.)
{¶ 10} By letter dated August 13, 2014, the board sent appellant a notice of
opportunity for hearing, alleging that the board had reason to believe the action taken by
the state of Washington on his license was a violation of R.C. 4731.22(B)(22). On April 15,
2016, a hearing on the matter was held.1 Appellant did not personally appear at the
hearing but instead submitted a 17-page written statement pursuant to R.C. 119.07. In his
written statement, appellant states that the discipline imposed by the commission
centered on his violation of physician-patient boundaries and violations of "newly enacted
pain management rules." ([Appellant's] Ex. 1.) In regard to the physician-patient
boundaries, appellant noted that, at the time he was treating Patient A, he honestly
1 The board initially considered appellant's application on December 10, 2014 and permanently denied his
application based on the agreed order. Appellant appealed to the common pleas court asserting that he had
timely requested a hearing, and the parties agreed to settle that appeal. The common pleas court thereafter
remanded the matter back to the board for an administrative hearing.
No. 17AP-88 5
believed he was acting in the best interest of his patient "exemplifying the ideal physician
virtues of caring, sympathy, compassion, understanding, respect, empathy,
accommodation, availability, personable, approachable, non-bias, and self-effacement,"
and now he realizes he should have referred her to other resources. ([Appellant's] Ex. 1.)
In regard to prescribing, appellant writes "I was at fault [in record keeping] because I did
not keep up on the changes in Washington law that occurred while I was treating Patient
A." ([Appellant's] Ex. 1.) Appellant asserts in his letter that he was not under any
restriction against treating patients outside of his employment so long as no conflict of
interests were present.
{¶ 11} On June 10, 2016, the hearing examiner issued a report and
recommendation finding that the Washington agreed order established a violation of R.C.
4731.22(B)(22). Appellant filed objections to the report and recommendation of the
hearing examiner. The board considered appellant's application at the July 13, 2016
board meeting and, thereafter, the board issued its entry of order permanently denying a
license to appellant.
{¶ 12} Appellant appealed to the Franklin County Court of Common Pleas and
moved the court for a finding in his favor under R.C. 119.12(I) alleging the board
intentionally failed to provide a copy of the transcript of the July 13, 2016 board meeting
rather than minutes of the hearing (which were provided by the board). On October 25,
2016, the common pleas court denied appellant's motion. On January 5, 2017, the
common pleas court affirmed the board's entry of order permanently denying appellant's
application for an Ohio medical license. In doing so, the common pleas court determined
that the agreed order "limited" and imposed "probation" on appellant's license under R.C.
4731.22(B)(22) and that appellant's argument regarding receiving a harsher sentence
than similarly situated individuals lacked merit. (Jan. 5, 2017 Decision at 10.)
{¶ 13} Appellant filed a timely appeal to this court.
II. ASSIGNMENTS OF ERROR
{¶ 14} Appellant presents five assignments of error:
[1.] The common pleas court abused its discretion when it
denied Dr. Angerbauer's request to enter a finding in his
favor because the Board intentionally failed to file a
transcript of the July 13, 2016, proceeding.
No. 17AP-88 6
[2.] The common pleas court abused its discretion when it
determined the Board's Order was in accordance with law
because the Washington Agreed Order does not give the
Board the authority to pursue disciplinary action under R.C.
4731.22(B)(22).
[3.] The common pleas court abused its discretion when it
determined the Board's Order was based on reliable,
probative, and substantial evidence, and in accordance with
law.
[4.] The common pleas court abused its discretion when it
determined the Board's Order was based upon reliable,
probative, and substantial evidence.
[5.] The common pleas court abused its discretion because
the Board's Order is not in accordance with law. The Board
treated Dr. Angerbauer's actions in the State of Washington
differently than it has treated physicians in Ohio, in violation
of the equal protection clause and the commerce clause.
III. STANDARD OF REVIEW
{¶ 15} Under R.C. 119.12, a common pleas court, in reviewing an order of an
administrative agency, must consider the entire record to determine whether reliable,
probative, and substantial evidence supports the agency's order and the order is in
accordance with law. Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 110-11 (1980).
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
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.
Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571 (1992).
{¶ 16} 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
No. 17AP-88 7
court 'must appraise all the evidence as to the credibility of the witnesses, the probative
character of the evidence, and the weight thereof.' " (Emphasis sic.) Lies v. 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). The common pleas court must give due deference
to the administrative agency's resolution of evidentiary conflicts, but "the findings of the
agency are by no means conclusive." Conrad at 111. Leak v. State Med. Bd., 10th Dist.
No. 09AP-1215, 2011-Ohio-2483, ¶ 8, appeal not allowed, 129 Ohio St.3d 1505, 2011-
Ohio-5258 ("[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.").
The common pleas court conducts a de novo review of questions of law, exercising its
independent judgment in determining whether the administrative order is " 'in
accordance with law.' " Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d
466, 471 (1993), citing R.C. 119.12.
{¶ 17} An appellate court's review of an administrative decision is more limited
than that of a common pleas court. Pons v. State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
The appellate court is to determine only whether the common pleas court abused its
discretion. Id. Absent an abuse of discretion, a court of appeals may not substitute its
judgment for that of an administrative agency or the common pleas court. Id. The term
abuse of discretion implies that the trial court's attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). An appellate
court, however, has plenary review of purely legal questions. Big Bob's, Inc. v. Ohio
Liquor Control Comm., 151 Ohio App.3d 498, 2003-Ohio-418, ¶ 15 (10th Dist.).
IV. DISCUSSION
A. First Assignment of Error
{¶ 18} Under the first assignment of error, appellant contends the common pleas
court abused its discretion when it denied appellant's request to enter a finding in his
favor, pursuant to R.C. 119.12(I), because the board intentionally failed to file a transcript
of the July 13, 2016 board meeting. We disagree.
{¶ 19} Pursuant to R.C. 119.12(I), after a notice of appeal from an agency's order is
filed with the common pleas court, the agency must, within 30 days after receipt of the
notice, "prepare and certify to the court a complete record of the proceedings in the case."
No. 17AP-88 8
"A 'complete record of proceedings' in a case is a 'precise history' of the administrative
proceedings from their commencement to their termination." Beach v. Ohio Bd. of
Nursing, 10th Dist. No. 10AP-940, 2011-Ohio-3451, ¶ 21, quoting Checker Realty Co. v.
Ohio Real Estate Comm., 41 Ohio App.2d 37, 42 (10th Dist.1974). A complete record of
proceedings includes a stenographic record of hearings in certain circumstances. Citizens
for Akron v. Ohio Elections Comm., 10th Dist. No. 11AP-152, 2011-Ohio-6387. As we
stated in Citizens for Akron at ¶ 25:
R.C. 119.09, titled "Adjudication hearing," sets forth the
provisions governing adjudication hearings before agencies.
The statute provides that, where the record of an adjudication
hearing may be the basis of an appeal, "a stenographic record
of the testimony and other evidence submitted shall be taken
at the expense of the agency." A "stenographic record" is "a
record provided by stenographic means or by the use of audio
electronic recording devices." R.C. 119.09. An agency is not
required to make a stenographic record of every adjudication
hearing. Rather, in any situation where R.C. 119.01 through
119.13 requires an adjudication hearing, "if an adjudication
order is made without a stenographic record of the hearing,
the agency shall, on request of the party, afford a hearing or
rehearing for the purpose of making such a record which may
be the basis of an appeal to court." Id.{¶ 20} In this case, appellant was provided notice that a court reporter would not
be present at the board meeting and that the board's minutes would serve as the official
record of the meeting, but he made no objection to the lack of a transcript to the board at
any time during the hearing. On his appeal, the board then provided in the certified
record a transcript of the April 15, 2016 hearing and six pages of detailed minutes from
the July 13, 2016 board meeting. The common pleas court denied appellant's R.C.
119.12(I) motion, finding that the July 13, 2016 meeting is clearly not an "adjudication
hearing" which would impose a duty on the board to provide a transcript and that no
authority supports appellant's claim that the board minutes were not sufficient. The
common pleas court notes that appellant never truly addressed the question of whether
he was harmed by having minutes, rather than the transcript, in the record.
{¶ 21} On appeal here, appellant again argues that he is entitled to a finding in his
favor under R.C. 119.12(I) because the board failed to certify a "complete" record of his
No. 17AP-88 9
case when it failed to file a transcript of the July 13, 2016 board meeting. According to
appellant, the board was required to transcribe the meeting and file it as part of the
certified record under R.C. 119.09 because the board meeting on July 13, 2016 fits the
definition of an "adjudication hearing" under R.C. 119.01.
{¶ 22} First, by failing to object to the absence of a court reporter at any time
prior to or during the board meeting, appellant has waived this issue. Ferrari v. State
Med. Bd., 9th Dist. No. 3474 (June 22, 1983), citing State ex rel. Vaughn v. Indus.
Comm., 69 Ohio St.2d 115, 118 (1982). See Jain v. State Med. Bd., 10th Dist. No. 09AP-
1180, 2010-Ohio-2855, ¶ 10 ("A party generally waives the right to appeal an issue that
could have been, but was not, raised in earlier proceedings.").
{¶ 23} Second, even if appellant did not waive this issue, we disagree with the
merits of appellant's argument regarding the board meeting constituting an adjudication
hearing. "Adjudication" means "the determination by the highest or ultimate authority
of an agency of the rights, duties, privileges, benefits, or legal relationships of a specified
person." R.C. 119.01(D). "Hearing" means "a public hearing by any agency in
compliance with procedural safeguards" afforded by R.C. 119.01 to 119.13. R.C. 119.09
describes an adjudication hearing as a proceeding where witnesses are interviewed,
evidence is produced, and which may generate a written report and recommendation by
an examiner and corresponding objections for the board's consideration. Furthermore,
although the board is obligated to prepare and publish minutes of its meetings, it is not
generally obligated to transcribe its meetings. R.C. 121.22(C); Ohio Adm.Code 4731-9-
01; Mahajan v. State Med. Bd., 10th Dist. No. 11AP-421, 2011-Ohio-6728, ¶ 9, 25-31
(discussing adequacy of board meeting minutes under Ohio's open meeting law and
overruling appellant's assignment of error contending the board deprived him of a full
and fair record of a board meeting under R.C. 119.09); Ferrari (finding that certification
of six pages of detailed minutes of its board meeting rather than a stenographic transcript
did not render the record of the proceedings incomplete). On this record, we agree with
the common pleas court that an adjudication hearing in this case occurred before the
hearing examiner on April 15, 2016 and that the record does not otherwise show that the
board meeting in this case constitutes an adjudication hearing.
No. 17AP-88 10
{¶ 24} Finally, as noted by the common pleas court, appellant has not indicated
how he was prejudiced by the inclusion of the board meeting minutes rather than a
transcript in this case. As a result, appellant is not entitled to a finding in his favor
under R.C. 119.12. Beach at ¶ 23-24; McGee v. State Bd. of Psychology, 82 Ohio App.3d
301, 305-06 (10th Dist.1993), quoting Lorms v. State, 48 Ohio St.2d 153 (1976), syllabus
(" 'An agency's omission of items from the certified record of an appealed administrative
proceeding does not require a finding for the appellant, pursuant to R.C. 119.12, when
the omissions in no way prejudice him in the presentation of his appeal.' "). Therefore,
considering all the above, we find the common pleas court did not abuse its discretion in
denying appellant's motion to enter finding in his favor.
{¶ 25} Accordingly, we overrule appellant's first assignment of error.
B. Second Assignment of Error
{¶ 26} Under the second assignment of error, appellant contends, essentially, that
the board's order was not in accordance with law, and it acted without authority because
the agreed order does not constitute an action enumerated in R.C. 4731.22(B)(22). For
the following reasons, we disagree.
{¶ 27} R.C. 4731.22(B) states in pertinent part:
The board, by an affirmative vote of not fewer than six
members, shall, to the extent permitted by law * * * refuse to
issue a certificate to an individual * * * 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.
No. 17AP-88 11
{¶ 28} In determining whether the action of a medical board of another state falls
under R.C. 4731.22(B)(22), we ask whether the language of the out-of-state action can
reasonably be interpreted as one of the enumerated actions in R.C. 4731.22(B)(22). Gross
v. State Med. Bd., 10th Dist. No. 08AP-437, 2008-Ohio-6826, ¶ 27-38 (referencing the
existence of definitions under Ohio law and common usage to determine whether an
agreed order from Colorado met the definition of an action of "limitation" in R.C.
4731.22(B)(22)). The action of a medical board of another state need not expressly name
the actions in R.C. 4731.22(B)(22) to authorize the board to act under that section. Id.{¶ 29} The common pleas court in this case found the agreed order from the state
of Washington constituted a "limitation" and "probation" for purposes of R.C.
4731.22(B)(22). The administrative code covering disciplinary actions under Ohio
Adm.Code Chapter 4731 provides the following definition of limitation:
"Limitation" means to preclude the certificate holder from
engaging in a particular conduct or activity, to impose
conditions on the manner in which that conduct or activity
may be performed, or to require the certificate holder to abide
by specific conditions in order to continue practicing
medicine. A limitation shall be either temporary or
permanent.
Ohio Adm.Code 4731-13-36(D). In Gross, the court found that in the context of R.C.
4731.22(B)(22), "the term 'limitation' reasonably may be construed as referencing an
action taken by a medical licensing agency in another jurisdiction that imposed an
enforceable restriction upon the scope or exercise of a person's medical license." Id. at
¶ 36.
{¶ 30} In addition, the Ohio Administrative Code provides the following definition
of probation in pertinent part:
"Probation" means a situation whereby the certificate holder
shall continue to practice only under conditions specified by
the board. Failure of the certificate holder to comply with the
conditions of probation may result in further disciplinary
action being imposed by the board. The probation period
shall be for either a definite or an indefinite term.
Ohio Adm.Code 4731-13-36(E).
No. 17AP-88 12
{¶ 31} The agreed order between appellant and the commission states violations of
Washington statutes and administrative code sections governing medical licensing and
imposes sanctions including monitoring of appellant's license for a period of two and one-
half years, course work on ethics, physician-patient boundaries, medical record keeping,
opioid prescribing, registration with the Washington Prescription Monitoring Program on
his license renewal, and a fine. The agreed order states that if appellant violates the order
in any respect, "the Commission may initiate further action against [appellant's] license."
(Agreed Order at 7.) Furthermore, the agreed order states:
Protection of the public requires practice under the terms and
conditions imposed in this order. Failure to comply with the
terms and conditions of this order may result in suspension of
the license after a show cause hearing. If [appellant] fails to
comply with the terms and conditions of this order, the
Commission may hold a hearing to require [appellant] to
show cause why the license should not be suspended.
Alternatively, the Commission may bring additional charges
of unprofessional conduct.
(Agreed Order at 8-9.)
{¶ 32} The agreed order in this case required appellant to abide by specific
conditions in order to continue practicing medicine and imposed an enforceable
restriction on the scope or exercise of his medical license. Furthermore, the agreed order
specified that appellant's ability to practice medicine could occur only under conditions
specified by the board and that failure to comply with the conditions may result in further
disciplinary action being imposed by the board. As such, we find the language of the
agreed order can reasonably be interpreted as a limitation or probation for purposes of
R.C. 4731.22(B)(22) to support the board's action in this case. Therefore, the common
pleas court did not abuse its discretion when it determined the board's order was in
accordance with law.
{¶ 33} Accordingly, we overrule appellant's second assignment of error.
C. Third Assignment of Error
{¶ 34} Under the third assignment of error, appellant contends the trial court
abused its discretion when it determined the board's order was based on reliable,
probative, and substantial evidence, and is accordance with law. Under this assignment
No. 17AP-88 13
of error, appellant essentially argues that a due process violation occurred because he was
denied a meaningful and fair hearing due to incorrect and improper evidence that was
presented to the hearing examiner and board members. For the following reasons, we
disagree.
{¶ 35} Procedural due process is not a technical concept but, rather, concerns basic
fairness. Gross at ¶ 20. "The fundamental requirement of procedural due process is
notice and hearing, that is, an opportunity to be heard." Korn v. State Med. Bd., 61 Ohio
App.3d 677, 684 (10th Dist.1988). "Where a physician is fully apprised of the violations
being considered by the board and is given a full opportunity to respond before an
impartial board, due process has been satisfied." Bouquett v. State Med. Bd., 123 Ohio
App.3d 466, 474-75 (10th Dist.1997), citing Korn; In re Vaughn, 10th Dist. No. 95APE05-
645 (Nov. 30, 1995).
{¶ 36} Appellant makes a multitude of arguments in support of his due process
argument. He first contends evidence that is more prejudicial than probative, specifically
Patient A's age and employer, was used against him and that a case the board referenced
at the board meeting that involved a sexual relationship with a patient should not have
been used as a point of comparison. To appellant, this left "the impression that this case
dealt with a physician who had sex with a twenty-eight-year old female who worked at a
gentleman's club." (Appellant's Brief at 26.) However, Patient A's age and employment
were facts stipulated to in the agreed order, and, as appellant himself states, the
prosecuting attorney was quick to point out that this case did not involve a sexual
relationship with a patient.
{¶ 37} Appellant next contends he was "berated in absentia" for not appearing at
the adjudication hearing, and the board used his silence to prejudice the board against
him, when the law clearly allows for a hearing held in his absence and a written statement
pursuant to R.C. 119.07. (Appellant's Brief at 26.) Relatedly, appellant contends the
board misspoke by saying it could not subpoena appellant because he lived out of state.
Appellant believes this left the board with the impression that he must come before the
board, otherwise his application should be permanently denied.
{¶ 38} We agree that appellant was within his rights to submit a written statement
instead of appearing at the hearing himself and that at the board meeting, the board
No. 17AP-88 14
expressed frustration with receiving a written statement five minutes prior to the hearing
when, in the board's view, that hearing was planned to accommodate appellant's
presence, and the board compared his silence to invoking the Fifth Amendment in a civil
case. However, nothing in the record suggests the board was unaware of appellant's right
to submit a written statement, based its finding of a violation of R.C. 4731.22(B)(22) on
anything but the agreed order and the language of that law, or believed that appellant's
lack of personal appearance at the hearing demanded a sanction of permanent denial of
his license. To the contrary, the board expressly considered non-permanent options.
{¶ 39} Appellant further contends that several prejudicial mistakes were made
about the evidence. For example, appellant believes the board incorrectly stated that
appellant failed to inquire into Patient A's medical history. However, appellant made this
argument to the board, and a board member commented that appellant's inquiry into
Patient A's medical history without accompanying documentation would arguably be
worse, wondering "why a physician would not document such a compelling mental health
and substance abuse history if he or she is contemplating a long-term prescription of
narcotic medication." (Board Minutes at 23355.) In other words, even if the board's
characterization of this point of evidence was not precisely in line with the agreed order, it
was not prejudicial. Appellant also takes issue with the board suggesting appellant would
contribute to the prescription drug epidemic, when the Washington agreed order was
based only on appellant's conduct with one patient. We do not agree that this statement
would constitute a mistake about the evidence.
{¶ 40} Relatedly, appellant contends that one board member swayed the other
members to believe appellant was an example of someone who should never practice
medicine in Ohio. The board member at issue expressed his opinion that appellant is an
example of a person who should never practice medicine in Ohio based on evidence in the
agreed order that appellant is a calculating individual with no problem prescribing up to
120 tablets per month to a patient with a history of substance abuse and mental health
issues and based on appellant's written statement comparing his conduct with ideal
physician virtues. However, other board members were free to form their own opinions
regarding appellant's case, and even if they were swayed, appellant fails to explain how
one board member's persuasive opinion amounts to a due process violation.
No. 17AP-88 15
{¶ 41} The board minutes indicate the board members based their decision on the
facts in evidence and not on alleged "inaccurate" and "unreliable" evidence,
"misconceptions" and "sensational characterizations," or appellant's lack of personal
appearance. (Appellant's Brief at 32.) Considering all the above, we find that contrary to
appellant's argument, he was afforded a hearing consistent with due process, and the
common pleas court did not abuse its discretion when it determined the board's order was
based on reliable, probative, and substantial evidence and was in accordance with law.
{¶ 42} Accordingly, we overrule appellant's third assignment of error.
D. Fourth Assignment of Error
{¶ 43} Appellant's fourth assignment of error, although phrased nearly identically
to the third assignment of error, challenges the common pleas court's review of the board
order. For the following reasons, we disagree with appellant.
{¶ 44} Appellant specifically argues that the common pleas court created facts to
support its decision to support the board's order. He argues that he was not an
occupational medicine physician who worked for the federal government but, rather,
worked for HPM Corporation treating employees of the federal government and that
nothing in the agreed order states he was contractually limited by this employment.
Appellant takes issue with the common pleas court's characterization of his examinations
of Patient A as "cursory," that she "purportedly" suffered from "lower back pain," and it
emphasized that appellant "only" stopped treating Patient A when a complaint was filed.
(Appellant's Brief at 33, 34.) Appellant further believes that the common pleas court
suggests the state of Washington found appellant knew he was doing something improper
and states that appellant did not admit to calling pharmacies at a time when he would not
have to speak with anyone. Finally, appellant takes issue with the common pleas court's
"position that this was more than just a record keeping case" and its "inappropriate"
characterization of appellant's written statement as a "multipage treatise on self-delusion
or an artful attempt to sound contrite while purposefully not admitting to any personal
fault or mistake." (Appellant's Brief at 34, 35.)
{¶ 45} Even if, for the sake of argument, appellant's characterizations of the
common pleas court opinion are true, nothing raised by appellant constitutes reversible
error. As explained below, none of the evidence referenced above is relevant to the
No. 17AP-88 16
board's order finding a violation of R.C. 4731.22(B)(22) but, rather, bears on mitigation
and aggravation of the sanction imposed by the board, considerations outside the scope of
the common pleas court's review.
{¶ 46} Under Ohio law, if the common pleas court concludes that the board's order
was supported by reliable, probative, and substantial evidence, it is precluded from
modifying the penalty imposed if the penalty was authorized by law. Demint v. State
Med. Bd., 10th Dist. No. 15AP-456, 2016-Ohio-3531, ¶ 63, citing Henry's Cafe, Inc. v. Bd.
of Liquor Control, 170 Ohio St. 233 (1959), paragraphs two and three of the syllabus. As
we stated in Demint:
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
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.
Id. at ¶ 63. See also Lindner v. Ohio Liquor Control Comm., 10th Dist. No. 00AP-1430
(May 31, 2001) ("As a practical matter, courts have no power to review penalties meted
out by the commission. Thus, we have little or no ability to review a penalty even if it
seems on the surface to be unreasonable or unduly harsh.").
{¶ 47} Here, as expanded on in the second assignment of error, we have already
concluded that the common pleas court did not abuse its discretion when it determined
the board's order regarding a violation of R.C. 4731.22(B) was in accordance with law.
The common pleas court reviewed the board's decision on R.C. 4731.22(B) by referencing
only the agreed order; appellant makes no argument that the agreed order is not reliable,
probative, and substantial evidence to support a violation of R.C. 4731.22(B).
{¶ 48} Under Ohio law, once a violation of R.C. 4731.22(B) is properly determined,
the board is authorized by law to refuse to issue a certificate to an individual and "may
specify that its action is permanent." R.C. 4731.22(L). Thus, the board's sanction of
permanent denial of appellant's license is authorized by law, and the common pleas court
could not modify the penalty imposed. Henry's Café, Inc. Considering all the above, the
No. 17AP-88 17
common pleas court did not abuse its discretion when it determined the board's order
was based on reliable, probative, and substantial evidence, and appellant's argument to
the contrary is without merit.
{¶ 49} Accordingly, we overrule appellant's fourth assignment of error.
E. Fifth Assignment of Error
{¶ 50} Under the fifth assignment of error, appellant contends the board violated
the Equal Protection Clause by treating him, an out-of-state applicant, differently than
similarly situated in-state licenses. We disagree.
{¶ 51} The equal protection clauses of the United States and Ohio Constitutions
prohibit " ' "governmental decision makers from treating differently persons who are in all
relevant respects alike." ' " Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio
St.3d 104, 2010-Ohio-4908, ¶ 16, quoting Burnett v. Motorists Mut. Ins. Co., 118 Ohio
St.3d 493, 2008-Ohio-2751, ¶ 30, quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
Where a plaintiff maintains that a statute constitutional on its face nonetheless has been
applied in a discriminatory manner in his case, the plaintiff must allege both that the state
treated the plaintiff differently from others similarly situated and that no rational basis
exists for such difference in treatment. Myers v. Columbus Civ. Serv. Comm., 10th Dist.
No. 07AP-958, 2008-Ohio-3521, ¶ 18. In this first step, a plaintiff must produce evidence
that the relevant comparison employees are similarly situated in all relevant respects. Id.
at ¶ 19. Once a showing of discriminatory treatment is made, the plaintiff next must
demonstrate the government action against him lacks a rational basis. Id.
{¶ 52} As the basis for his equal protection claim, appellant points out several cases
where physicians allegedly received more lenient discipline from the board. The common
pleas court determined that no case cited to by appellant showed a similarly situated
individual, and no "standard sanctions" were revealed by the cases provided as a
comparison point. (Jan. 5, 2017 Decision at 11.) We agree that the cases cited by
appellant fall short of demonstrating the requisite relevant comparison: in addition to
factual differences in the physicians' conduct, none of the cases cited by appellant involve
applicants for a medical license. Myers at ¶ 20; see also In re Vaughn (finding that where
a physician offers no evidence to support a claim of discrimination other than a list of
other physicians who received lesser sanctions, no equal protection violation is shown).
No. 17AP-88 18
We likewise note that the board presented its own cases showing it acted similarly in the
past. Moreover, even had appellant been able to prove he was treated differently from
those similarly situated, he failed to demonstrate his treatment lacked a rational basis.
{¶ 53} Accordingly, we overrule appellant's fifth assignment of error.
V. CONCLUSION
{¶ 54} Having overruled appellant's five assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK, P.J., and BRUNNER, J., concur.
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