Edmands v. State Med. Bd. of Ohio

[Cite as Edmands v. State Med. Bd. of Ohio, 2017-Ohio-8215.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Christopher J. Edmands, D.O., :
Plaintiff-Appellant, :
No. 16AP-726
v. : (C.P.C. No. 14CV-5644)
State Medical Board of Ohio, : (ACCELERATED CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on October 17, 2017
On brief: Elizabeth Y. Collis, for appellant. Argued:
Elizabeth Y. Collis.
On brief: Michael DeWine, Attorney General, James T.
Wakley, and Katherine J. Bockbrader, for appellee.
Argued: Katherine J. Bockbrader.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Appellant, Christopher J. Edmands, D.O., appeals from a judgment of the
Franklin County Court of Common Pleas that affirmed an order of the State Medical
Board of Ohio ("the Board") permanently denying Edmands' application for a certificate
to practice medicine and surgery in Ohio. For the following reasons, we affirm that
judgment.
I. Factual and Procedural Background
{¶ 2} This court set forth the factual background of this case in Edmands'
previous appeal in this matter. Edmands v. State Med. Bd. of Ohio, 10th Dist. No. 14AP-
No. 16AP-726 2
778, 2015-Ohio-2658, ¶ 2-8 ("Edmands I"). As we noted in that decision, Edmands
submitted to the Board an application for a license to practice osteopathic medicine and
surgery in Ohio on August 2, 2013. At that time, Edmands was licensed to practice
osteopathic medicine and surgery in West Virginia. However, in February 2013, the West
Virginia Board of Osteopathic Medicine reprimanded Edmands and placed his license on
probation for 12 months. That disciplinary action stemmed from Edmands' practice of
pre-signing blank prescription forms, verbal-order forms, and face-to-face encounter
forms, and allowing nursing staff to complete the forms.
{¶ 3} Edmands attached a letter to his Ohio application in which he admitted
that, while working as the medical director for Amedisys Hospice ("Hospice"), he pre-
signed certain forms. Edmands explained that he did so to ensure that end-of-life
Hospice patients would receive prompt, continuous medical care. Edmands believed that
Hospice condoned this practice, but discovered otherwise when Hospice declined to
renew his contract. Edmands acknowledged that he should not have pre-signed any
forms, and he promised not to do so again.
{¶ 4} Subsequently, in a letter dated March 12, 2014, the Board notified Edmands
that it intended to determine whether to refuse to register him because of the disciplinary
action against his West Virginia license. Pursuant to the version of R.C. 4731.22(B)(22)
effective at that time, the Board could refuse to register an individual if another state's
regulatory board has reprimanded or imposed probation on that physician. The Board's
March 12, 2014 letter also advised Edmands that he was entitled to a hearing on the
matter. On March 19, 2014, the Board received a reply letter from Edmands, which
stated, in part, "I have no further information to present for the OH Board of Medicine's
review and therefore, am not requesting a hearing."
{¶ 5} At a May 14, 2014 meeting, the Board considered Edmands' application and
voted to permanently deny it. The Board issued an order to that effect, which Edmands
appealed to the trial court pursuant to R.C. 119.12. The Board moved to dismiss the
appeal, arguing that Edmands waived his right to appeal the Board's order because he did
not request an administrative hearing from the Board. In response, Edmands argued that
the March 12, 2014 notice was so confusing, vague, and ambiguous that it denied him his
due process right to a meaningful opportunity for a hearing. Edmands also challenged the
No. 16AP-726 3
evidence before the Board, contending that it was not reliable, probative, and
substantial. The trial court dismissed the appeal, concluding that Edmands' failure to
request a hearing prevented the court from reviewing the Board's order. The trial court
also rejected Edmands' due process claim but did not address whether the Board's order
was supported by reliable, probative, and substantial evidence.
{¶ 6} In Edmands I, this court reversed that decision. We concluded that the trial
court erred by dismissing Edmands' appeal based on his failure to request a hearing. Id.
at ¶ 10-15. We also reviewed Edmands' due process claim and held that the Board's notice
reasonably conveyed his right to a hearing and the purpose of the hearing, and complied
with all due process requirements. Id. at ¶ 25-26. Accordingly, we reversed the trial
court's decision dismissing Edmands' appeal and remanded the matter for the trial court
to address his argument that the Board's order was not supported by reliable, probative,
and substantial evidence. Id. at ¶ 27.
{¶ 7} On remand, and after briefing by the parties, the trial court concluded that
the Board's order was supported by reliable, probative, and substantial evidence. It
rejected Edmands' argument that the Board did not have mitigating evidence because he
failed to request a hearing and, therefore, forfeited his right to present such evidence. The
trial court also rejected Edmands' argument that the Board's sanction was too harsh and
inconsistent with other sanctions imposed in similar cases
II. Edmands' Appeal
{¶ 8} Edmands appeals and assigns the following error:
The Court of Common Pleas, Franklin County, Ohio, erred by
affirming the Findings, Order and Journal Entry dated
May 14, 2014 * * * of the State Medical Board of Ohio.
{¶ 9} In this assignment of error, Edmands argues that the Board's order was not
supported by reliable, probative, or substantial evidence because: (1) the Board relied on
incomplete and inaccurate information when it issued its order, (2) the Board did not
review his application in accordance with R.C. 4731.17(A), and (3) the Board's order
violates the public interest.
No. 16AP-726 4
A. Standard of Review
{¶ 10} Pursuant to R.C. 119.12, when a common pleas court reviews an order of an
administrative agency, it must consider the entire record to determine whether the
agency's order is supported by reliable, probative, and substantial evidence and is in
accordance with law. Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 110-11 (1980);
Andrews v. Bd. of Liquor Control, 164 Ohio St. 275, 280 (1955). "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. "Probative" evidence is evidence that
tends to prove the issue in question; it must be relevant in determining the issue.
"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). 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.' " Lies v. Ohio Veterinary Med. Bd., 2 Ohio App.3d 204,
207 (1st Dist.1981), quoting Andrews at 280. In its review, the common pleas court must
give due deference to the administrative agency's resolution of evidentiary conflicts, but
the findings of the agency are not conclusive. Conrad at 111. On questions of law, the
common pleas court conducts a de novo review, 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); Froehlich v. Ohio State
Med. Bd., 10th Dist. No. 15AP-666, 2016-Ohio-1035, ¶ 15.
{¶ 11} An appellate court's review of an administrative order is more limited.
Bartchy v. State Bd. of Edn., 120 Ohio St.3d 205, 2008-Ohio-4826, ¶ 40-41. Instead of
appraising the weight of the evidence, an appellate court determines whether the common
pleas court abused its discretion in its examination of the record for reliable, probative,
and substantial evidence. Id. at ¶ 41; Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621
(1993). Absent an abuse of discretion, an appellate court must affirm the common pleas
court's judgment, even if the appellate court would have arrived at a different conclusion
than that of the common pleas court. Bartchy at ¶ 41-42. When reviewing the trial
court's judgment as to whether an agency's decision is in accordance with law, an
No. 16AP-726 5
appellate court's review is plenary. Spitznagel v. State Bd. of Edn., 126 Ohio St.3d 174,
2010-Ohio-2715, ¶ 14; Hughes v. Ohio Bd. of Nursing, 10th Dist. No. 15AP-786, 2016-
Ohio-4768, ¶ 7.
B. Edmands' Arguments
1. Did the Board Rely on Incomplete and Inaccurate Information?
{¶ 12} Edmands first argues that the Board based its decision on incomplete and
inaccurate information. Specifically, the Board's meeting on this matter occurred on
May 14, 2014. The Board had before it an affidavit from its senior executive staff attorney
which stated that as of April 16, 2014, the date of the affidavit, the Board had not received
any additional correspondence from Edmands. In the month between the preparation of
the affidavit and the meeting, however, Edmands sent a letter to the Board in an attempt
to supplement the contents of his application to indicate that his West Virginia
probationary period had ended on April 30, 2014. Edmands argues that the Board should
have considered the information in the letter because it is significant and could have
impacted the Board's decision.
{¶ 13} We first note that the affidavit was, in fact, correct when it stated that as of a
certain date the Board had not received any further correspondence from Edmands. It
was only after that date that Edmands sent his letter to the Board. Regardless, by not
requesting a hearing, Edmands forfeited his right to present evidence to the Board, even
under the guise of "supplementing" his application. Goldman v. State Med. Bd., 10th
Dist. No. 98AP-238 (Oct. 20, 1998). Thus, the Board did not have to consider Edmands'
letter. We note, however, that the Board had the authority to consider the letter if it came
to their attention prior to the meeting.
2. Did the Board Review Edmands' Application?
{¶ 14} Next, Edmands argues that the Board did not review his application in
making its decision as required by R.C. 4731.17(A).1 Specifically, he argues that in light of
the enormous amount of details that he included in his application concerning his West
Virginia licensure issues, the Board's limited discussion of that issue demonstrates that
the Board did not review the application. Edmands, however, did not make this argument
1 That statute, in relevant part, provides that "[t]he state medical board shall review all applications
received under section 4731.19 of the Revised Code."
No. 16AP-726 6
to the trial court. The failure to raise the issue in the trial court forfeits this issue for
appellate purposes. Parker's Tavern v. Ohio Dept. of Health, 195 Ohio App.3d 22, 2011-
Ohio-3598, ¶ 11 (10th Dist.); Abunku v. State Med. Bd., 10th Dist. No. 11AP-906, 2012-
Ohio-2734, ¶ 34.
{¶ 15} Under this argument, Edmands also argues that his sanction was harsher
than sanctions imposed on other physicians facing similar or worse violations. Edmands
did raise this issue before the trial court and we shall therefore address it. Our review of
this claim, however, is rather limited. Specifically, when the board's order is supported by
reliable, probative, and substantial evidence and is in accordance with law, a reviewing
court may not modify a sanction authorized by statute. Henry's Café Inc. v. Ohio Bd. of
Liquor Control, 170 Ohio St. 233 (1959); Shah v. State Med. Bd. of Ohio, 10th Dist. No.
14AP-147, 2014-Ohio-4067, ¶ 17. As this court has noted, as a practical matter, courts
have no power to review penalties meted out by an agency pursuant to Henry's Café.
Thus, we have little or no ability to review a penalty even if it seems on the surface to be
unreasonable or unduly harsh. Abunku at ¶ 29.
{¶ 16} Here, R.C. 4731.22(B)(22) authorized the Board to permanently deny
Edmands' application for a certificate to practice medicine and surgery in Ohio if another
state's regulatory board reprimanded or imposed probation on Edmands. He does not
dispute that this occurred in West Virginia. Therefore, because the Board was authorized
to sanction Edmands, and the chosen sanction was authorized by statute, the trial court
could not interfere with or modify the penalty imposed. Henry's Café; see also DeBlanco
v. Ohio State Med. Bd., 78 Ohio App.3d 194 (10th Dist.1992); Shah at ¶ 17.
3. Does the Board's Order Violate the Public Interest?
{¶ 17} Last, Edmands argues that the Board's order violates the public interest by
"depriving Ohio citizens of a dedicated primary care physician to serve its rural
communities." (Appellant's Brief at 29.) Again, Edmands did not make this argument to
the trial court and has, therefore, forfeited it for purposes of appeal. Parker's Tavern.
C. Conclusion
{¶ 18} Having rejected each of Edmands' arguments in support of his assignment
of error, we overrule his lone assignment of error.
No. 16AP-726 7
III. Conclusion
{¶ 19} For all these reasons, we overrule Edmands' assignment of error and affirm
the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and BRUNNER, JJ., concur.