T.E. v. State Med. Bd. , 2022 Ohio 1471 ( 2022 )

[Cite as T.E. v. State Med. Bd., 2022-Ohio-1471.]
THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[T.E., M.D.], :
Appellant-Appellant, : No. 21AP-142
(C.P.C. No. 19CV-9312)
v. :
(REGULAR CALENDAR)
State Medical Board of Ohio, :
Appellee-Appellee. :
D E C I S I O N
Rendered on May 3, 2022
On brief: Dinsmore & Shohl, LLP, Eric J. Plinke, and Heidi W.
Dorn, for appellant. Argued: Eric J. Plinke.
On brief: Dave Yost, Attorney General, and Katherine
Bockbrader, for appellee. Argued: Katherine Bockbrader.
APPEAL from the Franklin County Court of Common Pleas
NELSON, J.
{¶ 1} Sometimes bad things happen to good doctors. Where physical problems
constrain a surgeon's ability to undertake certain invasive procedures, Ohio law empowers
the State Medical Board (the "board") to limit that doctor's scope of operations while still
permitting him or her otherwise to engage in the practice of medicine. This case involves
courage amidst unfortunate circumstances, with frustrations compounded by the parties'
sustained inability to reach accord despite what appear to be potentially broad areas of
agreement over the kinds of things that the doctor should and should not be doing.
{¶ 2} Appellant T.E. ("Dr. E.") is an accomplished cardiologist who has fought a
valiant battle against the brain cancer that afflicted him starting in 2006. He does not stand
accused of any wrongdoing, and there is no claim that he has inflicted harm on anyone. In
No. 21AP-142 2
what the board's hearing examiner properly called "a very sad and difficult case," the board
adopted an order limiting and restricting Dr. E.'s medical license so as to preclude him from
performing "invasive procedures, including all cardiac electrophysiology procedures"
unless and until the order is modified after specified conditions are met. November 13,
2019 Board Minutes; Hearing Examiner Report & Recommendation (received by the board
October 18, 2019) at 29 (rationale and proposed order). Dr. E. filed an administrative
appeal of that decision with the Franklin County Court of Common Pleas on November 19,
2019, and the common pleas court affirmed the board's order in a thorough Decision and
Entry of March 10, 2021.
{¶ 3} Dr. E. has appealed that determination to us. He presents four assignments
of error:
[I.] The trial court erred as a matter of law in failing to find a
due process violation resulting from the board's tainted
proceedings.
[II.] The trial court erred in failing to find that the board's order
is contrary to law because it did not establish impairment
under the plain meaning of R.C. 4731.22(B)(19).
[III.] The trial court erred in failing to find that the bord's order
is contrary to law because it violates disability discrimination
laws.
[IV.] The trial court erred in failing to find that the board's
order violated due process due to the reliance on [board expert]
Dr. Hanna's opinion.
Appellant's Brief at iv (capitalizations adjusted).
{¶ 4} His opening brief to us describes among other matters his distinguished
career before being diagnosed with a malignant brain tumor in 2006; his subsequent brain
surgery, chemotherapy, and radiation; his resumption of "noninvasive work in the office in
electrophysiology"; a May 2010 "episode of a somatosensory seizure which consisted of
numbness and tingling * * * similar to hitting your 'funny bone,' " running from hand to
arm to shoulder, "secondarily to the face and left side of the tongue"; his halt in practicing
and acknowledgment that he "randomly experienced the somatosensory seizures" in 2010
and 2011; his 2012 invocation of "full-term disability insurance * * * based on the
recommendations of his treating specialist physicians that he cease practice of invasive
No. 21AP-142 3
cardiology at that time"; his disclosure to the board in the course of filing to renew his
medical license in 2014 that he had "voluntarily withdr[awn] his hospital privileges to
perform invasive cardiology"; and his resulting lengthy, unsatisfactory, and he says
threatening dealings with board personnel. Appellant's Brief at 10-16; see also id. at 22
(underscoring that he "ha[s] not practiced invasive medicine since 2010 and stopped
practicing all together since 2011").
{¶ 5} Against that backdrop, we turn first to Dr. E.'s second assignment of error.
We start there both because it presents a legal question that governs what the board was to
assess in analyzing the proposed order on limitation of the doctor's practice (and thus, we
think, goes to the heart of the case), and because it is presented in a manner somewhat less
diffuse than is the argument under the first assignment. The second assignment of error
turns on the meaning of the relevant statute, and therefore presents a question of law that,
as the parties agree, we review de novo (afresh, without deference to the determinations
below).
{¶ 6} Dr. E. contends that the statutory provision under which the board acted to
impose limitations on his practice, R.C. 4731.22(B)(19), applies only in cases of a complete
"inability to practice" and therefore does not comprehend situations in which a doctor is
unable to perform some tasks within his field but able to do others. We take it that is what
his brief means when it submits: "The statute is not violated on its face for a partial inability
to practice; rather, it states an '[i]nability to practice' and applicability where 'unable to
practice' without lesser partial or component qualifications." Appellant's Brief at 30; see
also id. at 32 ("As such [sic], the Board's reliance on Dr. Hanna's opinion that Dr. [E.] can
fully practice certain areas of medicine, but not the invasive procedures relevant here, does
not comport with the plain language of R.C. 4731.22(B)(19)"). Because the board did not
find Dr. E. wholly unable to practice, he submits, its conclusions about his impairment and
the consequent restrictions were "not supported by reliable[,] probative[,] and substantial
evidence" and therefore its order was invalid. Id. at 29-30.
{¶ 7} That is not how we read the law. R.C. 4731.22(B) begins by reciting (with
emphasis added) that the board, by a vote of at least six members, "shall, to the extent
permitted by law, limit, revoke, or suspend a license," refuse to issue, renew, or reinstate a
license, or reprimand a license holder "for one or more of" 52 enumerated reasons. We take
No. 21AP-142 4
from that introductory language alone that the power of the board to "limit" a license is
distinct from its powers to "suspend" or to "revoke" a license. Subparagraph 19 then
provides as a reason for such board action: "Inability to practice according to acceptable
and prevailing standards of care by reason of * * * physical illness, including * * * physical
deterioration that adversely affects cognitive, motor, or perceptive skills." R.C.
4731.22(B)(19) (emphasis added). We take it from that language that the statute recognizes
that a doctor (as with Dr. E.) may be entirely unimpaired cognitively while suffering from
adversely affected motor skills.
{¶ 8} The subsection then goes on to authorize the board to order a mental or
physical examination in connection with license applications. Id. And the subsection
makes provision for the board to allow continued practice where appropriate: "If the board
finds an individual unable to practice because of the reasons set forth in this division, the
board shall require the individual to submit to care, counseling, or treatment by physicians
approved or designated by the board, as a condition for initial, continued, reinstated, or
renewed authority to practice." Id. (emphasis added). The board also must afford the
doctor "an opportunity to demonstrate to the board the ability to resume practice in
compliance with acceptable and prevailing standards under the provisions of the
individual's license." Id. (Here, the board's order to Dr. E. provided that he may "apply to
the Board for modification of th[e] limitation/restriction for specific [that is, invasive]
procedures upon providing written report from two physicians acceptable to the Board, one
of who[m] must be a neurologist, indicating that he has been * * * deemed capable of
performing those specific procedures. * * * [S]hould Dr. [E.] be able to demonstrate to the
satisfaction of the Board that for five years he has been both without anticonvulsant
medication and free of seizures, then the limitation/restriction would be removed
altogether." March 10, 2021 Decision & Entry at 4, citing adopted Report &
Recommendation at 29-30.)
{¶ 9} Especially when the (B)(19) subsection is read in full, Dr. E.'s position that
"[i]nability to practice according to acceptable and prevailing standards of care" must mean
and apply only to a complete, global inability to practice makes little sense. By its terms,
the subsection says that:
No. 21AP-142 5
• The board may "limit" (that is, impose "enforceable restrictions" on, see Gross v.
State Med. Bd., 10th Dist. No. 08AP-437, 2008-Ohio-6826, ¶ 36 (construing
"limitation" in R.C. 4731.22(B)(22)) a license while not revoking or suspending
it;
• The board may take action where a doctor maintains full "cognitive" but not full
"motor" skills; and
• In acting, the board may impose care, counseling, or treatment conditions to
permit "continued * * * authority to practice."
{¶ 10} Each of those explicit, textual allowances provides at least a strong tipoff that
the word "[i]nability" in the statute may not mean, or, that is, may not be restricted to, a
complete inability to practice. Dr. E.'s briefing seeks to wrench the word out of the context
of the statute, but we are required to read the words of a statute "in context"—that is, in the
context that the text of the statute itself provides—and thus to read the statutory subsection
as an integrated whole. R.C. 1.42. In statutory interpretation, as in literature and life,
context informs meaning. "Evaluating the context in which a word is written is essential to
a fair reading of the text: 'The words of a governing text are of paramount concern, and
what they convey, in their [textual] context, is what the text means.' " Great Lakes Bar
Control, Inc. v. Testa, 156 Ohio St.3d 199, 2018-Ohio-5207, ¶ 9, quoting Scalia & Garner,
Reading Law: The Interpretation of Legal Texts, 56 (2012) (also quoting the same source
in reciting that " 'words are given meaning by their context' ").
{¶ 11} As the General Assembly further instructs, "it is presumed that * * * [t]he
entire statute is intended to be effective." R.C. 1.47(B); see also, e.g., State v. Pendergrass,
162 Ohio St.3d 25, 2020-Ohio-3335, ¶ 22-24 (reading statutory provisions together to
derive meaning of word from "the broader statutory language"). It would be passing
strange to design a system so that a wholly impaired doctor may nonetheless practice within
"limit[s]," or "continue[]" in his work, just as it would be to compel the medical board to
determine that a doctor with full "cognitive" skills may nonetheless and because of physical
impairments not be allowed to prescribe medications or consult on medical solutions.
{¶ 12} And we do not understand the legislature to have done that. "Inability" in
this context, like "ability" in others, admits of gradations. So (to invoke the first usage
example provided at Dictionary.com) when we speak of someone's "inability to make
No. 21AP-142 6
decisions," we do not necessarily mean that the person never can make decisions—just that
he may frequently have difficulty doing so, or doing so under certain conditions understood
in context. The same might be said of someone's "inability" to refrain from sweets, or to get
along with others. That is why, to convey a more absolute context for the word, we
sometimes employ adjectives like "complete" or "utter" (or both). See, e.g., Toledo Bar
Assn. v. Cook, 114 Ohio St.3d 108, 2007-Ohio-3253, ¶ 40 ("As relator observed,
[respondent] demonstrated 'a complete inability to act as a lawyer without engaging in
habitual acts of fraud and deceit' "); In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 27
(witness concern over individual who "showed a complete inability to identify the
information she previously had appeared to understand"); Shaver v. Wolske & Blue, 138
Ohio App.3d 653, 667 (10th Dist.2000), quoting Taylor v. Phoenixville School Dist., 184
F.3d 296, 309 (3d Cir.1999) ("substantial limitations on major life activities do not have to
rise to the level of 'utter inabilities' ").
{¶ 13} Again, "[r]ather than limit our analysis to the 'hyperliteral meaning of each
word,' we consider the ordinary meaning of the word as it is used within the surrounding
text." Great Lakes Bar Control at ¶ 9, quoting Scalia & Garner at 356. Here, the plain
language of the statute leads us to conclude that it is only within those spheres where the
board finds an "[i]nability" to practice according to acceptable and prevailing standards of
care that the board need act. The board is not required to deem Dr. E. entirely unable to
practice (or, commensurately, to strip him entirely of his license) when he retains full
cognitive abilities; the statute empowers it to "limit" the doctor's license as appropriate to
his particular and unfortunate situation. Similarly, the board is not precluded from acting
where a doctor maintains abilities as to certain medical activities or procedures but cannot
perform others.
{¶ 14} Although we are not aware that the interpretive issue has been presented to
courts in the way that Dr. E. formulates it here, our reading of the plain text of the statute
as not requiring an "[i]nability to practice according to * * * prevailing standards" to extend
to all areas and respects of a doctor's practice before triggering board action is consistent
with precedent from this court. In M.M. v. State Med. Bd. of Ohio, 10th Dist. No. 18AP-
839, 2020-Ohio-360, ¶ 9-10, 37, we upheld as in accordance with R.C. 4731.22(B)(19)
board limitations on the practice of a doctor who apparently was capable of undertaking "a
No. 21AP-142 7
low-stress administrative type of practice in which she would not engage in direct patient
care." Compare also Taylor v. State Med. Bd. of Ohio, 10th Dist. No. 10AP-262, 2010-
Ohio-5560, ¶ 20 (board's administrative rule "serves to clarify that the 'unable to practice'
language of R.C. 4731.22(B)(19) includes those practitioners * * * who are unable to practice
in accordance with acceptable and prevailing standards of care without proper treatment,
monitoring, and supervision"); Flynn v. State Med. Bd. of Ohio, 10th Dist. No. 16AP-29,
2016-Ohio-5903, ¶ 1, 6 (upholding board order of probation for doctor found "unable to
practice * * * due to her mental illness"). Menkes v. State Med. Bd. of Ohio, 10th Dist. No.
19AP-476, 2020-Ohio-4656, is not to the contrary; that case did not involve board
limitation, revocation, or suspension of a license, or invocation of the "inability to practice"
language of R.C. 4731.22(B)(19), but rather related to the board's attempt to impose a
reprimand under R.C. 4731.22(B)(22) (by "bootstrapping" from other jurisdictions, as
found not applicable) and R.C. 4731.22(B)(5) (making false statements in connection with
licensure, found applicable).
{¶ 15} We disagree, then, with Dr. E.'s contention that his ability to practice in
some areas precludes the board, under "the plain language of R.C. 4731.22(B)(19)," from
directing that he not perform "the invasive procedures relevant here." Compare
Appellant's Brief at 32. And while his second assignment of error urges that the board's
order "did not establish impairment under the plain meaning of R.C. 4731.22(B)(19)," its
argument is grounded entirely in his interpretive views and not on propositions relating to
the facts before the board. See Appellant's Brief at iv (assignment submitting that board's
order "is contrary to law"), 29-35 (argument that "inability" contemplates only complete
inability). We overrule the second assignment of error.
{¶ 16} Because Dr. E.'s fourth assignment of error does at least touch on evidence
that the board considered in limiting Dr. E.'s license, we turn next to that proposition.
Dr. E. argues that board reliance on the opinion of its assigned neurological expert,
Dr. Joseph Hanna, violated Dr. E.'s right to due process because the board needed to hear
from someone (or, presumably, some persons) knowledgeable both about his physical
impairment and about the specific nature of the invasive procedures from which he is
barred. See Appellant's Brief at 44 (board needed to "secure[] an individualized assessment
by an expert of not only Dr. [E.'s] disability but also one knowledgeable about cardiac
No. 21AP-142 8
electrophysiology procedures in order to competently assess whether Dr. [E.] could safely
perform them"). Among Dr. E.'s complaints here is that the board's designated expert
"equated the mere possibility of a seizure [in the course of performing invasive procedures]
with a direct threat to patient safety." Id. at 43; see also id. at 45 ("THIS neurologist,
Dr. Hanna, is not qualified to evaluate Dr. [E.'s] practice * * * * Further, the Board failed to
consider reasonable accommodations and relied on the mere potential that a seizure could
disrupt a procedure, all of which deprived Dr. [E.] of a fair hearing").
{¶ 17} Although cloaked in terms of a constitutional argument (the board hearing
"superficially satisfied due process," but "was terribly flawed" as not relating to evidence
" 'appropriate to the nature of the case' "), id. at 43, it really is an argument that the trial
court should have recognized that the board lacked sufficient evidence upon which to base
its finding of impairment and the resulting practice limitations. See id. at 44 (arguing that
the board was wrong to consider the opinion of a neurological expert who assertedly could
not "competently assess whether Dr. [E.] could safely perform" cardiac electrophysiology
procedures); see also Reply Brief at 20 (same). Indeed, in the very decision that Dr. E. cites
to support this proposition, Leak v. State Med. Bd. of Ohio, 10th Dist. No. 09AP-1215, 2011-
Ohio-2483, at the start of the very paragraph (¶ 12) from which he quotes in both his
opening brief and his reply, we noted: "This assignment of error [there urging that the
common pleas court had abused its discretion in finding that the board's order was
supported by sufficient evidence in that the experts were "inherently unreliable" because
they were neurologists and not pain medication experts] essentially questions whether
there was reliable, probative, and substantial evidence in the form of testimony supporting
the board's disciplinary order against Dr. Leak." Compare Leak at ¶ 12 with Appellant's
Brief at 44 and Reply Brief at 19.
{¶ 18} That understanding of Dr. E.'s position will inform the bulk of our analysis
here. To be clear, however, we do not believe that the board's having a neurologist opine
on the risk that Dr. E. could pose by undertaking invasive procedures despite being subject
to seizures is in and of itself a violation of due process under these circumstances where
notice and the opportunity to be heard are not at issue. Dr. E. refers us to no authority for
any such specific proposition: again, his concern here as argued under this assignment is at
root that the board lacked an appropriate evidentiary foundation for its conclusions.
No. 21AP-142 9
{¶ 19} To begin, we observe that Dr. E.'s attack on the board's use of Dr. Hanna's
ultimate conclusion that Dr. E. should not be performing invasive procedures, including
cardiac electrophysiology, is relevant only to the extent that Dr. E. contests that conclusion.
See Report & Recommendation at 27 (reflecting Dr. Hanna's "opinion to a high degree of
medical certainty that, although Dr. [E.] is capable of practicing general cardiology without
restriction, * * * he is not capable of performing invasive procedures, including all
procedural cardiac electrophysiology, according to acceptable and prevailing standards of
care"). As to what extent he does contest that conclusion, we find his briefing at least
somewhat opaque. Compare Appellant's Brief at 31 ("Dr. Hanna's opinion was limited to
one discreet subspecialty, cardiac electrophysiology, an area in which Dr. [E.] voluntarily
has not practiced since 2010"), and id. at 41 ("complete lack of imminent harm as Dr. [E.]
has voluntarily ceased practicing in this area of medicine"), with id. at 42 (seeking remand
under antidiscrimination rationale for board fact finding on "the existence of any direct
threat from performing the cardiac electrophysiology Dr. [E.] testified he was qualified to
perform"), id. at 45 (board "relied on the mere potential that a seizure could disrupt a
procedure" and failed to consider "reasonable accommodations" [earlier identified as
including an approach in which the doctor would take "a short 15 minute break" during a
procedure should seizures warrant, see id. at 39-40]).
{¶ 20} Concluding that Dr. E. does seek to challenge the board's determination of
his physical inability to engage in invasive procedures consistent with patient safety, we
rehearse the familiar standards of review that obtain in this case. "Our role in reviewing the
common pleas court's appellate review of an administrative appeal is limited to
determining [whether] the common pleas court abused its discretion." M.M., 2020-Ohio-
360, at ¶ 23 (citations omitted). "An abuse of discretion occurs when a trial court's
discretionary judgment is unreasonable, arbitrary, or unconscionable," or relies on an error
of law (reviewed de novo, as noted above). Id.
{¶ 21} As the common pleas court here recognized, in administrative cases governed
by R.C. 119.12, after review of all the evidence, "a reviewing trial court must affirm the order
of the [administrative body] if it is supported by reliable, probative and substantial evidence
and is in accordance with law." Decision & Entry at 5, citing Univ. of Cincinnati v. Conrad,
63 Ohio St.2d 108, 111 (1980); Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993)
No. 21AP-142 10
(further citation omitted). " '(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.' " Id., quoting Our Place v.
Liquor Control Comm., 63 Ohio St.3d 570, 571 (1992).
{¶ 22} As the common pleas court further understood, its review of the
administrative record was not to be de novo, but rather " '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.' " Id. (citations omitted). The common pleas court
needed to accord " 'due deference to the administrative agency's resolution of evidentiary
conflicts,' " and to its "interpretation of the technical and ethical requirements of its
profession." Id. at 5-6 (citations omitted).
{¶ 23} Pursuant to the explicit authority of R.C. 4731.22(B)(19), the board appointed
Dr. Hanna to conduct a neurological examination of Dr. E. See Decision & Entry at 3;
August 19, 2019 board hearing Tr. at 27. The record reflects that Dr. Hanna, who is a well
credentialed neurologist and not a cardiologist versed in the intricacies of cardiac
electrophysiology, prepared a report and subsequently testified before the board's hearing
examiner. He recounted that Dr. E. "has a tumor on the right side of his head and inside of
his brain that is made of cells that are malignant and are difficult to control and cure." Tr.
at 43. The tumor "sits in the right sensory motor cortex * * * * [W]hen the electrical
discharges occur in that area and scarring occurs because of radiation and the tumor, the
discharges then will set off * * * sensory symptoms on his left side * * * which includes the
left side of his mouth and his left arm. * * * * Seizures are chaotic and random. And because
of that, it's impossible to predict when they might occur." Tr. at 44. Dr. Hanna described
his "simpleton's understanding" of cardiac electrophysiology as involving placement of "a
catheter into your heart that has an electrophysiologic program for which they stop and
start the heart." Tr. at 33. He concluded: "A seizure occurring during a procedure could
jeopardize a patient. Therefore, I do not recommend that he resume performing any
procedures including all procedural cardiac electrophysiology." July 11, 2017 Report (Ex.
5) at 2; see also Tr. at 44-45 (seizure during a procedure "could then end in a problem with
No. 21AP-142 11
the patient or the patient could be harmed"). He understood Dr. E. to agree that he could
not perform invasive procedures. Tr. at 47-48.
{¶ 24} Dr. E.'s argument here boils down to a contention that Dr. Hanna doesn't
know enough about the intricacies of cardiac electrophysiology to understand whether it
could be bad for a patient to have her doctor suffer a seizure during the procedure. For
several reasons, we are not persuaded that the trial court abused its discretion in finding
that "the Board's order limiting and restricting Dr. [E.'s] practice of medicine * * * is
supported by reliable, probative and substantial evidence." Decision & Entry at 15.
{¶ 25} First, and we think dispositively, Dr. E. does not challenge or make any
parallel argument here with regard to the board's reliance on other doctors who reached
conclusions similar to Dr. Hanna's. The hearing examiner's second (of two) findings of fact
emphasized that "[a]dditional evidence of inability to perform invasive cardiac
electrophysiology procedures according to acceptable and prevailing standards of care
includes the opinions of two of Dr. [E.'s] treating physicians, Drs. Stevens and Najm, [who]
have also expressed opinions that there should be limitations and/or restrictions on
Dr. [E.'s] performance of procedural cardiac electrophysiology." Report &
Recommendation at 28; see also id. at 5-7 ("Dr. [E.] understood Dr. Stevens' [2010]
admonishment to mean that he had to stop performing procedures that involve putting
wires in the heart and manipulating catheters in the arterial flow. * * * Dr. [E.] further
testified that Dr. Stevens referred him to Dr. Najm, the head of epileptology at the Cleveland
Clinic concerning what Dr. [E.] can and cannot do," and that in 2011 Dr. Najm " 'said he's
not changing his mind, he will never clear me to return to work' " given the chance of cancer
and seizure progression. " 'So I needed a second opinion, and I sought Dr. Luders * * * and
unfortunately that opinion by Dr. Luders in 2011 was similar. He said if you go well
controlled on antiepileptic drugs for five years [a condition that never was met, given
several "somatosensory events" in 2014 and another seizure in 2018], then I will clear you
to return to work"); id. at 20-21 (hearing examiner summarizes Dr. Hanna testimony that
Dr. Stevens's views as expressed in a May 1, 2019 letter "reached about the same conclusion
that Dr. Hanna had made in 2017, which is that Dr. [E.] is okay to practice general
cardiology but should not practice cardiac electrophysiology out of concern for a
reoccurrence of a seizure").
No. 21AP-142 12
{¶ 26} The hearing record bears all that out. At the request of Dr. E.'s counsel, Tr.
at 222, the hearing examiner admitted as Dr. E.'s exhibit C the May 1, 2019 letter from
Dr. Stevens, Section Head of Adult Neuro-Oncology at the Cleveland Clinic, that concludes:
Dr. [E.] is interested in maintaining a clinical practice in the
field of Cardiology if possible. Our stance has been and
continues to be that he not be involved with invasive
procedures secondary to the concerns about seizure
recurrence while doing a procedure and he understands that.
At this point in time, based on the findings of his
Neurocognitive testing[,] I would support his reentry into
medical practice based on his board certification as long as he
is not performing procedures.
Ex. C at 3 (emphasis added). The record also includes a communication dated September
29, 2011 from Dr. Najm, Director of the Cleveland Clinic's Epilepsy Center, reciting in part:
"As I stated to [Dr. E.] during previous visits and due to the fact that his seizures are most
likely due to the anaplastic lesion and/or its effect on the surrounding perirolandic cortex
on the right, I informed him again that working as an interventional Cardiologist may not
be possible because of safety issues related to his patients. * * * * My recommendation is
that he * * * avoid any activity that[,] should a seizure occur[], his life and or his safety or
that of his patients be at risk. Dr. [E.] stated that he would like to consider a second expert
Epilepsy opinion." Board's Hearing Ex. 5a. And the record also includes an October 19,
2016 letter from Dr. Hans Luders, Professor of Neurology, expressing his view that a return
by Dr. E. to performance of invasive procedures should be conditioned on Dr. E.'s "not
hav[ing] any further seizures" and showing "no evidence suggesting a recurrence of his
anaplastic oligoastrocytoma." (Unfortunately, both of those conditions had failed as of the
time of the board hearing, as some signs of cancer had manifested themselves again and he
had suffered another seizure in 2018. See Tr. at 185 [seizure triggered by driving], 188-89,
195 [area of concern now limited and "stable"].)
{¶ 27} The common pleas court underscored these additional bases for the board's
conclusions:
[I]t must be emphasized that Dr. Hanna's well-reasoned
opinion does not exist in a vacuum. Rather, it is complemented
by three other respected physicians that treated Dr. [E.] First,
Dr. Stevens directed [Dr. E.] as his own patient not to perform
invasive procedures and electrophysiology, given the seizures
No. 21AP-142 13
he was experiencing. (Tr. at 135, 137). Next, Dr. Najm at the
Cleveland Clinic conveyed an even more restrictive and
permanent set of limitations. (Tr. at 136, 152). Lastly, Dr.
Luders was sought by [Dr. E.] to give "a second opinion." The
latter was slightly more favorable in that he qualified that the
proscription from invasive procedures could be lifted if the
seizures were controlled for a sustained period. (Tr. at 153,
155). However, the record reflects that [Dr. E.]'s cancer
returned, leaving him short of Dr. Luders' recommended five
years of control of his seizures. (Tr. at 193).
Decision & Entry at 20.
{¶ 28} Dr. E.'s fourth assignment of error does not address these additional bases
for the board's conclusions, or this part of the common pleas court's decision. Even without
Dr. Hanna's testimony, the common pleas court's determination that the board's order was
supported by reliable, probative, and substantial evidence would not have been an abuse of
discretion.
{¶ 29} Second, Dr. E.'s argument that the opinion of a neurologist alone concerning
whether his physical condition should preclude performing invasive procedures, including
all cardiac electrophysiology procedures, is somehow not "appropriate to the nature of this
case," Appellant's Brief at 44, is undercut by the logic of his own account. Dr. E. testified
that when Dr. Najm told him that the risk of future seizures "should preclude [him] from
practicing invasive electrophysiology of all types, simple EP, not only the complex stuff," he
was "shocked." Tr. at 152. He asked whether Dr. Najm really meant to say that the potential
for "one 15-minute period [out of an entire year] where I have some numbness" should
preclude him from performing "any invasive work whatsoever, and [Dr. Najm] said, yes,
that's right. So I needed a second opinion, and I sought Dr. Luders" (whose opinion also
left him unsatisfied). Id. at 152-53. As described by Dr. E., then, the "second opinion" that
he wanted was as to whether his disease should preclude him from doing "any invasive
work." And he sought that second opinion from Dr. Luders—a neurologist.
{¶ 30} Third, Dr. E.'s argument never explains to us with any factual specificity why
Dr. Hanna's "very rudimentary understanding of the practice of cardiac electrophysiology"
should not have been sufficient to allow him to opine on the risks to patient health posed
by someone of Dr. E.'s particular neurological condition performing that invasive
procedure. See Appellant's Brief at 44-45. Dr. E. suggests to us that Dr. Hanna should have
No. 21AP-142 14
consulted "with another physician who practiced in the area of cardiac electrophysiology,"
id. at 44, but Dr. Hanna interviewed Dr. E. himself. Dr. Hanna testified that he and Dr. E.
had discussed "in depth" the concern that a seizure during such a procedure could result in
harm to the patient. Tr. at 45. Dr. Hanna was under the impression that he and Dr. E.
"were in complete agreement when he left the office about what we thought he could do
and not do." Id. at 47; see also id. at 47-48 (Q. "Was it that he agreed he could not do
invasive procedures?" A. "Yes.").
{¶ 31} It is worth repeating in this regard that the practice restrictions
recommended by Dr. Hanna in his report were being observed by Dr. E. of his own volition
to that point. Dr. E. "voluntarily" had not practiced cardiac electrophysiology "since May
of 2010"—some seven years before Dr. Hanna was asked to conduct the physical
examination. Appellant's Brief at 3-4. And Dr. E. concedes that cardiac electrophysiology
involves "invasive procedures." See, e.g., id. at 32 (discussing "the Board's reliance on
Dr. Hanna's opinion that Dr. [E.] can fully practice certain areas of medicine, but not the
invasive procedures relevant here"), id. at 38 (reaffirming that Dr. E. has "not performed
the subject invasive procedures since 2010 – long before the Board's involvement").
Moreover, Dr. E.'s suggestion to us that any seizures during the procedure could be
addressed by "taking a short 15 minute break," id. at 40, see also Tr. at 124-25 (Dr. E. avers
that certain procedures "can be performed and you can step away from the table for 15
minutes at a time and there's no issue, right") might reasonably be construed to cut against
his argument that Dr. Hanna should not have been heard on whether the neurological
diagnosis "actually affects the performance of certain procedures," compare Reply Brief at
18.
{¶ 32} In any event, this is not a case like Leak where one doctor described what
another's standard of care should have been in particular instances. Rather, Dr. Hanna
here took the general description of the cardiac procedures at issue, applied his own
neurological expertise to the situation in light of Dr. E.'s illness, and formed a conclusion
that Dr. E. should not be conducting invasive procedures of any sort. We are aware of no
precedent or other authority that would bar Dr.Hanna from rendering this opinion unless
he had cultivated an encyclopedic knowledge of every sort of invasive procedure involving
people's hearts. It is true that "a medical expert well-versed and well-credentialed in one
No. 21AP-142 15
field may not be an expert in other medical fields." Leak at ¶ 12, citing R.C. 2743.43(A)(3)
(involving preclusions on testimony regarding liability issues in a medical claim). But Dr.
Hanna was well within his expertise to discuss potential seizures that could affect Dr. E.
during the conduct of invasive procedures, and the trial court did not abuse its discretion
in determining that Dr. Hanna's testimony, in combination with the evidence involving
Dr. E.'s treating physicians, provided "more than" the required reliable, probative, and
substantial evidence needed to support the board's order. See Decision & Entry at 21.
Compare M.M. at ¶ 2 (R.C. 4731.22(B)(19) case cited by common pleas court here;
upholding affirmance of board preclusion of "direct patient care" by doctor, based on
psychiatric testimony); Parrott v. State Med. Bd. of Ohio, 10th Dist. No. 15AP-963, 2016-
Ohio-4635, ¶ 3, 10, 20-22 (case under R.C. 4731.22(B)(26) involving impairment of
radiologist's ability to practice because of substance abuse turned not on radiological
expertise but on diagnosis of the impairment; also cited by common pleas court here).
{¶ 33} Fourth, even were we to examine this assignment of error not for abuse of
discretion involving the question of evidentiary sufficiency, but rather under a standard of
de novo review, we could not say in the context presented here that a constitutional rule
requiring fair process marked Dr. Hanna's straightforward testimony as somehow
substantively incompetent. The board was apprised of Dr. Hanna's background and
neurological expertise, and also was informed that he disclaimed detailed knowledge of
cardiac electrophysiology. "[W]hen reviewing a medical board's order, courts must accord
due deference to the board's interpretation of the technical and ethical requirements of its
profession." Pons, 66 Ohio St.3d at 621. As in Pons, here too "the medical board [was]
quite capable of interpreting technical requirements of the medical field," id. at 623, citing
Arlen v. State Med. Bd. of Ohio, 61 Ohio St.2d 168, 173 (1980).
{¶ 34} Dr. Hanna was cross-examined by Dr. E.'s lawyer, and Dr. E. also testified
before the board's hearing examiner. Due process did not require the board to defer to
Dr. E. on proposed "accommodations" such as the suggested "short 15 minute break"
during invasive cardiac procedures, compare Appellant's Brief at 45, 40, nor did it require
the board to await some actual harm to a patient before acting to ensure against "the mere
potential that a seizure could disrupt a procedure," compare id. at 45. The Supreme Court
of Ohio has reiterated that the General Assembly has provided for " ' "administrative
No. 21AP-142 16
hearings in particular fields * * * to facilitate [resolution of a profession's technical and
ethical requirements] 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." ' " Pons at 622, quoting Arlen quoting Farrand v. State Med. Bd. of Ohio,
151 Ohio St. 222, 224 (1949).
{¶ 35} In a broad variety of circumstances, the board, and courts reviewing board
administrative actions, may appropriately " 'rely on the Board's own knowledge' " involving
medical questions. Flynn, 2016-Ohio-5903, at ¶ 39, quoting Walker v. State Med. Bd. of
Ohio, 10th Dist. No. 01AP-791 (Feb. 21, 2002); compare M.M., 2020-Ohio-360, at ¶ 35
(agreeing that the board's reliance on the expert psychiatric testimony there was not
"unfounded," but rather entitled to significant deference). And in Flynn, we quoted from
Ridgeway v. State Med. Bd. of Ohio, 10th Dist. No. 07AP-446, 2008-Ohio-1373, ¶ 25, in
observing that "it is 'within the province of the medical board to consider the issue of
impairment even in the absence of evidence of a specific incident of patient harm.' " Flynn
at ¶ 19, quoting Ridgeway at ¶ 25. Flynn was an R.C. 4731.22(B)(19) case that drew upon
Ridgeway's discussion (in the related R.C. 4731.22(B)(26) context) of precedents from
across the country that medical boards in appropriate circumstances can act to prevent
future harm even where not "presented with evidence that actual patient harm has already
occurred," see Ridgeway at ¶ 20. Because "[o]ne aspect of the Board's function is to care
for the safety of the public * * * *[,] [i]t therefore is entirely appropriate to take prophylactic
steps when a licensed physician is impaired." Smith v. State Med. Bd. of Ohio, 10th Dist.
No. 11AP-1005, 2012-Ohio-2472, ¶ 19 (R.C. 4731.22(B)(26) case). Under the circumstances
presented here, and absent some identified defect in the process employed to consider such
matters, board evaluation of the potential for future harm to the public does not amount to
a violation of due process.
{¶ 36} We overrule Dr. E.'s fourth assignment of error.
{¶ 37} But, Dr. E. argues pursuant to his third assignment of error, precisely because
"the sole basis" of the board's action "was his physical disability," Appellant's Brief at 37
(emphasis deleted), the trial court erred in not finding that the board's order violates laws
against disability discrimination. We do not agree. Certainly Dr. E. has not engaged in
misconduct and has no wrongdoing "to excuse," compare id.; nonetheless, and again, the
No. 21AP-142 17
board is not precluded under these circumstances from making its professional
determination that Dr. E. is not at this time qualified to perform invasive cardiac
procedures.
{¶ 38} We held in Flynn that where the board has determined within the scope of its
powers that a doctor's "illness renders her unable to practice medicine and surgery
according to acceptable and prevailing standards of care, the Board's order taking action
against her license under R.C. 4731.22(B) [does] not violate the [federal or state laws
against disability discrimination]." 2016-Ohio-5903 at ¶ 20. Those laws, we said, extend
only to a "qualified individual with a disability," and the board is empowered on an
appropriate record to determine in the interest of patient health that a doctor is not
qualified to practice outside of specified limitations. Id. at ¶ 14, 16 (adding that " '[t]he very
nature of the police powers exercised by state boards of medicine require the state to
discriminate on the basis of, among other considerations, a mental condition harmful to
the public's safety,' " quoting Alexander v. Margolis, 921 F. Supp. 482, 488 (W.D.Mich.
1995)).
{¶ 39} Dr. E. urges that "[t]he Board's assertion that [his] medications control his
condition but do not eliminate all risk of a potential seizure is without merit as no
medication completely eliminates all risk." Reply Brief at 15. That argument defeats itself.
The design of the board's order is to limit the risk to patients that the various neurologists
indicated would exist were Dr. E. to resume performing invasive cardiac procedures. If
medication could "eliminate[] all risk," the arguments and the board's position could be
different. And Dr. E.'s unadorned argument that he must be deemed a qualified individual
for purposes of the Americans with Disabilities Act because that law "does not permit the
Board to license only those individuals whose disabilities have been cured," id. at 16, would
in this context, at least without more nuanced submission, read the word "qualified" out of
the act. Compare 42 U.S.C. 12132 (providing that "no qualified individual with a disability
shall, by reason of such disability, be * * * subjected to discrimination by [a public entity]").
The antidiscrimination laws do not prevent the board from exercising its responsibility to
take patient safety into account in light of Dr. E.'s physical condition.
{¶ 40} Dr. E. seems to argue further that because he "has not practiced cardio
electrophysiology since 2012," the board lacked necessary evidence "of any direct threat
No. 21AP-142 18
from performing the cardiac electrophysiology [Dr. E.] testified he was qualified to
perform." Reply Brief at 17-18. Again, this argument is in some considerable tension with
itself. And nothing required the board to adopt Dr. E.'s own testimony as to his current
capabilities notwithstanding what the trial court found to be reliable, probative, and
substantial neurological evidence to the contrary. A reviewing common pleas court
" ' "must give due deference to the administrative determination of conflicting testimony,
including the resolution of credibility conflicts." ' " M.M., 2020-Ohio-360, at ¶ 22, quoting
Glasstetter v. Rehab Servs. Comm., 10th Dist. No. 13AP-932, 2014-Ohio-3014, ¶ 14 (further
citations omitted).
{¶ 41} The board did assess the conflicting positions. Board member
Dr. Schottenstein, for example, "stated that he is sympathetic to Dr. [E.'s] frustration
expressed during his testimony in which he stated that he did not feel he could get the
specialists who assessed him or the Board members to understand that there is a difference
between a somatosensory seizure and a motor seizure." November 13, 2019 Board Meeting
Minutes at 5. "However," Dr. Schottenstein continued, "Dr. Hanna was clear to address
this point in his testimony and indicated that it is a distinction without a difference because
a sensory impairment of a limb [such as an arm] means that one cannot carry out
movement in a controlled way since feedback is necessary from a sensory standpoint for
one's motor functions to occur in a coordinated fashion." Id. at 5-6 (with Dr. Schottenstein
adding that "regrettably, he is not comfortable with dismissing this case" and that "the
[order as proposed and ultimately adopted] is fair and * * * gives Dr. [E.] the option to
remove the limitations if certain criteria are met. The [order] also allows Dr. [E.] to practice
general cardiology in the meantime"). Id. at 6.
{¶ 42} We conclude that the trial court did not err in leaving to the informed
discretion of the board whether to overlook (or "accommodate") Dr. E.'s condition by
reasoning that in the course of conducting invasive procedures he could turn to expedients
such as relying on intervention by non-doctor "surgical assistants" or taking "short 15
minute" breaks. (We also note that entry into the board's new confidential monitoring
program as he now proposes would not free him to undertake any invasive procedures.)
We overrule Dr. E.'s third assignment of error.
No. 21AP-142 19
{¶ 43} Dr. E.'s briefing under his first assignment of error, alleging that the board
proceedings were "tainted," hints at various possible arguments before distilling to a
contention that board staff "misrepresented Dr. [E.'s] eligibility for the [board's non-
disciplinary] confidential monitoring program at the July 2018 meeting [that approved the
notice to Dr. E. that the board would consider revoking or limiting his license], thereby
initiating the tainted proceedings[,]" and that the board later "believed itself powerless to
remedy the initial error. As a result, * * * the misconduct here tainted Dr. [E.'s] hearing to
the point of rendering the hearing useless as no evidence could have addressed the
formative flaw; therefore, producing a fundamentally unfair process." Appellant's Brief at
28-29.
{¶ 44} Dr. E. has not brought a mandamus action to compel officers of the board to
exercise their discretion in a particular way. Rather, his first assignment of error is limited
to his contention that board staff misled the board into believing, wrongly he suggests, that
he was unwilling to agree to all practice restrictions necessary to gain entry to the
confidential monitoring program. Compare Ohio Adm.Code 4731-28-03(A) (requiring
"written participation agreement") and (B)(4) (requiring "[a]greement" regarding
cessation of practice if the secretary and supervising member of the board determine
current inability).
{¶ 45} Dr. E. hinges his argument here on board minutes from the July 11, 2018
meeting that authorized the notice of potential board action and his opportunity to be
heard. See Appellant's Brief at 24-25. Those minutes record that "Dr. Schottenstein asked
if the Board is continuing to pursue development of a non-disciplinary monitoring process
for practitioners with mental and physical health problems. Dr. Schottenstein also asked if
this practitioner could be placed in such a process once it is instituted. Ms. Marshall [of the
board staff] replied that, speaking generally and not in relation to this particular case, * * *
the non-disciplinary monitoring program is near [to going into operation]. Ms. Marshall
added that it is a voluntary program which requires the cooperation of the licensee."
July 11, 2018 Board Minutes at 1.
{¶ 46} Dr. E. does not dispute the literal truth of the response, but now reads it to
"imply[] that [he] neither wanted to be in [the program] and/or was not cooperative."
Appellant's Brief at 24. His lawyer's take on the same passage when speaking to the hearing
No. 21AP-142 20
examiner, however, was significantly less definitive: "I don't know what she meant by that,
but one interpretation might be to suggest to Board members that Dr. [E.] wasn't
cooperative. And that is far from the case if that is what was interpreted incorrectly by the
Board members * * *." Tr. at 246.
{¶ 47} The common pleas court's decision addressed this matter, noting among
other points that the board's July 2018 notice to Dr. E. of his opportunity to be heard
apparently "preceded the establishment of the Confidential Monitoring Program."
Decision & Entry at 12. The record does support this observation, and Dr. E. does not
contest it in his briefing to us. See Tr. at 12 (Dr. E.'s lawyer expresses concern that "a month
after this case was cited, the Board's confidential monitoring program under OAC 4738.21
came into effect"); see also Ohio Adm.Code 4731-28-02, 4731-28-03 (establishing rules for
eligibility for and participation in confidential monitoring program, effective August 31,
2018).
{¶ 48} The trial court also acknowledged the broad discretion that the board now
has in determining eligibility for the program, and was "disinclined to invade that learned
province * * *." Decision & Entry at 12. Further still, the trial court found that "a genuine
disagreement that was the primary subject of the [subsequent] administrative hearing
focused [on] the extent of [Dr. E]'s physical illness [and, we would say, on the extent to
which that illness should preclude him from conducting invasive cardiac procedures]. This
stands in contrast to the so-called 'stipulation' necessary" to enter the new program under
Ohio Adm.Code 4731-28-03. Id. at 12-13. Dr. E.'s brief disputes that review of the record,
and says that the common pleas court also "reference[d] a dispute that does not exist
anywhere in the record where it cites Dr. [E.] and the Board being 'at odds' over the
language in a 'participation agreement' * * *." Appellant's Brief at 26 (citing to the Decision
& Entry at 10, which actually characterized the argument of the board as to why Dr. E. was
"effectively precluded * * * from participation").
{¶ 49} But nowhere does Dr. E.'s briefing cite us to any statement by Dr. E. at his
hearing or to the board thereafter that he would agree going forward to abstain from all
invasive cardiac procedures including cardiac electrophysiology. His counsel had inquired
about the then-prospective program in February of 2018, and the board investigator
responded that "someone like your client would likely be eligible for the program" once it
No. 21AP-142 21
went into effect in several months. See hearing Ex. U (Feb. 22, 2018 e-mail). Dr. E. testified
that he thought the program "should have been offered to [him]," but that he was not aware
of its specifics. Tr. at 212-13 (also saying that his practice had been "on hold" pending
completion of the board investigation). And his lawyer told the hearing examiner that
"what should have happened in this case" was for the board to have placed Dr. E. into the
program. Tr. at 247. But nowhere we see in the record (or even in the briefing to us, on
close inspection) do we find a clear and unequivocal expression by Dr. E. of agreement that
he will not undertake any further cardiac electrophysiology. We have no reason to gainsay
the common pleas court's reading of the record, let alone to determine that that court
abused its discretion in its findings.
{¶ 50} The general tenor of Dr. E.'s position as articulated to the hearing examiner
(consistent even with the general tenor of much of his briefing to us, with his repeated
assertions that he could take a 15-minute break to wait out any seizure during a procedure)
suggests that he was at best (understandably) reluctant to concede that he ought not
perform any type of invasive cardiac procedure at all—or at least we cannot say that the trial
court abused its discretion in reading the record that way, see Decision & Entry at 12-13.
Dr. E.'s Reply Brief labels as "incorrect" the view that " 'the Board and Dr. [E.] were not in
agreement on how his license should be restricted,' " Reply Brief at 4 (quoting Appellee's
Brief at 20). Such arguments, Dr. E.'s briefing submits, "are based on conjecture and not
on the record." Reply Brief at 4. "The Board had the opportunity to present evidence of
such asserted disagreement; however, there is absolutely nothing in the record to support
these unfounded assertions, which are not evidence," he repeats. Id. But Dr. E. is the party
asserting a due process violation, and while such an agreement makes eminent sense in the
abstract, he cites us to no statement from him establishing his position on the matter as
expressed to the board or to board staff. Indeed, he does not directly tell us, with or even
without citation, that at the time the board acted he was prepared without equivocation to
forswear all future invasive cardiac procedures of any sort.
{¶ 51} Rather, it seemed his position that someone who truly understood the
intricacies of his practice would perforce acknowledge that there were some types of
electrophysiology procedures he could perform. At least that was the hearing examiner's
take, as supported by citations to Dr. E.'s testimony. See Report & Recommendation at 22-
No. 21AP-142 22
24 ("Dr. [E.'s] Testimony Concerning his Ability to Practice Cardiac Electrophysiology").
As the hearing examiner recited, Dr. E. testified that "where I have issue with a simpleton's
approach to electrophysiology, is that it is not like [Dr. Hanna] says. [We note that the word
'simpleton' in this context originated with Dr. Hanna.] It is not like Dr. Hanna thinks, it is
not that [all or nothing] type of specialty. And I'm not sure that Dr. Stevens knows. I don't
know that Dr. Peereboom knows that most of electrophysiology is not time sensitive." Id.
at 22, quoting Tr. at 123-27. The report continued, still quoting Dr. E.: "As long as you have
cognitive function, you can deal with arrhythmias that aren't induced. In fact, it doesn't
involve moving the wires, okay. It involves evaluating where that arrhythmia was coming
from. It involves taking appropriate action to convert that, but that is basically a verbal
response given to the person running a stimulator that applies the electrical impulses.
* * * * So most of the procedures, pacemakers, implanted defibrillators, regular EP studies
and even ablations can be performed and you can step away from the table for 15 minutes
at a time and there's no issue, right. They're not in arrhythmia. You converted the
arrhythmia already." Id.
{¶ 52} More from Dr. E. as emphasized by the hearing examiner: "And in fact,
you're encouraged that it is a cognitive specialty, it is not like an angioplasty plumber where
they're always moving, they're shooting into the arteries in the heart and in the brain * * *
and during that timeframe their heart is deprived of oxygen and that. It is not like that in
electrophysiology." Id. at 22-23. "It is a cognitive specialty and involves evaluation
mathematically of the rate of the arrhythmia, the origin of the arrhythmia and you do that
by monitoring all these different wires inside of the heart, but you're not moving them. You
place them for about a ten-minute timeframe at the beginning of the procedure. Once
they're in place, they are sometimes moved but almost never if you put them right." Id. at
23.
{¶ 53} Certain more complicated or physically involved types of electrophysiology
could be distinguished from other types, as the hearing examiner recounted Dr. E.'s
testimony, "and it could be limited easily," the doctor testified, "by saying, hey, you cannot
perform those procedures. But Dr. Stevens doesn't know that, Dr. Njam doesn't know that,
Dr. Hanna obviously didn't know that and doesn't understand that, and I'm not sure - - I
No. 21AP-142 23
couldn't even get the Board to understand that there's a difference between a
somatosensory seizure and a motor seizure." Id. at 23-24 (still quoting Dr. E.).
{¶ 54} The hearing examiner also noted that "during a June 6, 2018 deposition there
was a discussion concerning what invasive procedures Dr. [E.] might be able to perform.
He testified that placement of a central venous catheter is invasive but would involve no
risk to the patient. Dr. [E.] further testified that nurses and nurse practitioners perform
this procedure." Id. at 24, citing Ex. 3 at 17.
{¶ 55} Dr. E.'s reliance on our decision in Mansour v. State Med. Bd. of Ohio, 10th
Dist. No. 14AP-829, 2015-Ohio-1716, is misplaced. In that case, we found that a board order
was not in accordance with law because of a mistaken evidentiary ruling that had denied
access to a respondent's earlier interrogatory responses. No such issue is involved here,
where Dr. E. expressed his position at length. Although he now accuses board staff of
"misrepresentations * * * about [his] eligibility for the confidential monitoring program,"
Reply Brief at 6, he nowhere directly states his unequivocal commitment to the preclusions
on future conduct that such an agreement would have required. And assertions that the
board lacks proof on its side do not compensate for his failure to establish his allegations.
{¶ 56} The common pleas court did not abuse its discretion in finding that the record
did not reflect a meeting of the minds between Dr. E. and the board as to what the
limitations on Dr. E.'s practice should be. It also did not err in finding that "the record does
not reflect that [Dr. E.] was denied due process. He was extended a reasonable notice and
opportunity to be heard. He appeared and participated in an administrative hearing, where
he was represented by counsel. [He] was afforded an opportunity to call witnesses, as well
as the ability to cross-examine opposing witnesses, and introduce legal argument."
Decision & Entry at 13.
{¶ 57} At the November 13, 2019 board meeting that imposed the limitations on
Dr. E.'s practice, Dr. Schottenstein reflected again on the monitoring program (as
implemented by that point). "Dr. Schottenstein wished this case had proceeded under the
confidential non-disciplinary monitoring program. However, it did not and now the Board
has to see the case through. Based on his experiences with other cases, Dr. Schottenstein
stated that there may have been a variety of different reasons why the Board moved in the
No. 21AP-142 24
direction of a formal hearing rather than the confidential program." November 13, 2019
board minutes at 6.
{¶ 58} Although we overrule Dr. E.'s first assignment of error, we are constrained to
note potential merit in the board's apparent consensus that "everyone supports a non-
disciplinary track for situations of this nature." November 13, 2019 board minutes at 6
(paraphrasing Dr. Schottenstein echoing Dr. Feibel). Dr. E. has had a distinguished career
and has worked bravely to overcome to the extent possible the effects of the insidious
disease that besets him. While we are not in a position to apportion blame for the failure
of Dr. E. and the board to arrive at a practice limitation agreement consistent with the
public interest, nothing in this decision should be interpreted to dissuade the board, on its
part, from reviewing this case study and implementing or suggesting whatever further
reforms it may find best serve its public mission.
{¶ 59} The involvement of the judiciary here is cabined by the law. "In an appeal
from a medical board's order, 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.
* * * The appellate court's review is even more limited than that of the trial court. While 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 [or, we note, misunderstanding of law]. Absent
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. Instead, the appellate court must
affirm the trial court's judgment." Pons, 66 Ohio St.3d, at 621. We do so here.
Judgment affirmed.
KLATT and JAMISON, JJ., concur.
NELSON, J., retired, of the Tenth Appellate District, assigned
to active duty under the authority of the Ohio Constitution,
Article IV, Section 6(C).
___________________