Mansour v. State Med. Bd. , 2018 Ohio 2605 ( 2018 )

[Cite as Mansour v. State Med. Bd., 2018-Ohio-2605.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Waleed N. Mansour, M.D., :
Appellant-Appellant, :
v. : No. 17AP-615
(C.P.C. No. 16CV-793)
State Medical Board of Ohio, :
(REGULAR CALENDAR)
Appellee-Appellee. :
D E C I S I O N
Rendered on June 29, 2018
On brief: Dinsmore & Shohl, LLP, Eric J. Plinke and
Daniel S. Zinsmaster, for appellant. Argued: Eric J. Plinke.
On brief: Michael DeWine, Attorney General, Katherine
Bockbrader and Kyle C. Wilcox, for appellee. Argued:
Katherine Bockbrader.
APPEAL from the Franklin County Court of Common Pleas
TYACK, J.
{¶ 1} Appellant, Waleed N. Mansour, M.D., appeals the July 27, 2017 judgment of
the Franklin County Court of Common Pleas affirming the order of appellee, State Medical
Board of Ohio ("Board") permanently revoking Dr. Mansour's certificate to practice
medicine and surgery in Ohio. For the reasons that follow, we affirm the judgment of the
court of common pleas.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} This appeal stems from an R.C. 119.12 administrative appeal by Dr. Mansour
from an order of the Board issued January 13, 2016, permanently revoking Dr. Mansour's
certificate to practice medicine and surgery in Ohio. The Board's revocation was based on
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three areas where it found misconduct. The Board found that in 2012, Dr. Mansour
knowingly failed to disclose to the Board his conviction for domestic violence. In 2014, the
Board found that Dr. Mansour knowingly misled the Board concerning an action by the
Arizona Medical Board against him. In 2015, Dr. Mansour pled guilty to two counts of
possession of drugs.
{¶ 3} Dr. Mansour has been licensed to practice medicine in Ohio since 2000. He
stated that he primarily practices in the area of internal medicine.
II. 2012 RENEWAL APPLICATION
{¶ 4} In 2010, Dr. Mansour was found guilty of domestic violence in violation of
R.C. 2919.25(A), a first-degree misdemeanor. On his 2012 renewal application to renew
his certificate to practice medicine and surgery in Ohio, Dr. Mansour falsely answered "no"
to the question: "Have you been found guilty of, or pled guilty or no contest to, or received
treatment or intervention in lieu of conviction of, a misdemeanor or a felony?" (Dec. 2,
2015 Report and Recommendation at 3.)
{¶ 5} At his hearing before a Board hearing examiner, Dr. Mansour explained that
he did not disclose his conviction on his renewal form because he believed that his legal
counsel had divulged this conviction to a medical board enforcement attorney. Dr.
Mansour was given the opportunity to call the retired enforcement board attorney, but
declined to do so.
{¶ 6} The hearing examiner found Dr. Mansour not to be credible when he testified
that he did not intend to mislead the Board. The hearing examiner found that Dr. Mansour
produced no evidence either that his attorney disclosed the conviction to the Board or that
he advised Dr. Mansour not to disclose his conviction to the Board.
III. 2014 RENEWAL APPLICATION
{¶ 7} On July 2, 2014, the Arizona Medical Board sent a letter to Dr. Mansour
alleging Arizona statutory violations in case No. D-13-1430A. The letter stated that the
investigation in the above-referenced case was now complete, and the case had been
reviewed and referred to the full board for further action.
{¶ 8} On his 2014 renewal application, Dr. Mansour answered "yes" to the
question: "At any time since signing your last application for renewal of your certificate has
any board, bureau, department, agency, or any other body, including those in Ohio other
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than this board, filed any charges, allegations or complaints against you?" (Dec. 2, 2015
Report and Recommendation at 5.)
{¶ 9} Dr. Mansour followed up on December 1, 2104 in response to the Board's
October 17, 2014 letter requesting more information regarding his affirmative answer in
the 2014 renewal application. Dr. Mansour submitted the following explanation for his
affirmative answer:
Finally, I correctly answered "yes" to Question 4, which asks
* * *. As a result of the Ohio Board's December 13, Order of
reprimand and probation, I have had discussions regarding
the action with the Arizona Medical Board, with whom I
maintained an active license with until April 2014. While I
have not had "charges, allegations or complaints" filed by the
Arizona Medical Board to my knowledge --- they have merely
requested information about the prior Ohio action and
inquired about the status of the ongoing appeal --- I answer
this question "yes" in an abundance of caution.
State's Ex. 1(d); (Dec. 2, 2015 Report and Recommendation at 5.)
{¶ 10} Initially, Dr. Mansour could not recall whether he based his December 1, 2014
explanation only on the July 2, 2014 letter from the Arizona Medical Board. He later
claimed that he based his explanation on an interview with an Arizona Medical Board
investigator. He then claimed that he did not receive the July 2, 2014 letter from the
Arizona Medical Board until after he had sent the Ohio Board his December 1, 2014
response. The hearing examiner found that Dr. Mansour was not credible when he testified
that he did not intend to mislead the Board regarding the Arizona Medical Board action.
The hearing examiner rejected Dr. Mansour's explanation that the July 2, 2014 letter was
lost in the mail, and found it reasonable to presume that Dr. Mansour did receive the July
letter before December 1, 2014 because it was sent to the correct address.
IV. 2015 CONVICTION
{¶ 11} In February 2015, Dr. Mansour pleaded guilty, in the Mahoning County Court
of Common Pleas, to two counts of possessing drugs in violation of R.C. 2925.11(A) and
(C)(2)(a), first-degree misdemeanors. He was sentenced to a suspended sentence of six
months, a fine of $1,000, and ordered to pay court costs.
No. 17AP-615 4
V. PROCEEDINGS BEFORE THE BOARD
{¶ 12} After a hearing in which Dr. Mansour appeared and testified, the hearing
examiner found the violations proven and recommended a permanent revocation of Dr.
Mansour's license. The hearing examiner found Dr. Mansour's testimony regarding his
receipt of the Arizona letter not credible. The hearing examiner found Dr. Mansour's
testimony that he did not intend to mislead the Board with respect to his failure to disclose
his 2010 domestic violence conviction not credible as well.
{¶ 13} The Board accepted the recommendation and issued an order on January 13,
2016 permanently revoking Dr. Mansour's license.
{¶ 14} Pursuant to R.C. 119.12, Dr. Mansour appealed the Board's order to the
Franklin County Court of Common Pleas and, on July 27, 2017, the common pleas court
affirmed the Board's order.
VI. ASSIGNMENTS OF ERROR
{¶ 15} On appeal, Dr. Mansour has set forth the following five assignments of error
for our review:
[I.] The trial court erred in affirming the Board's Order, as the
Board cannot prove intent to deceive relative to Dr. Mansour's
July 16, 2014 Renewal Application and subsequent
December 1, 2014 explanation letter.
[II.] The trial court erred in affirming the Board's Order as the
Board did not rely on substantial, reliable, and probative
evidence in determining Dr. Mansour's intent to deceive
relative to the 2012 renewal.
[III.] The trial court erred in affirming the admission of State's
Exhibit 2(d), which was improperly admitted by the Board
over a Perchan objection; therefore, the Board's Order is
contrary to law.
[IV.] The trial court erred in affirming the Board's Order, as
the Board's Order contains a recitation of facts that is
unsupported by reliable, probative, and substantive evidence,
and is therefore contrary to law.
[V.] The trial court erred in affirming the Board's Order, as the
Hearing Examiner was inconsistent in evidentiary rulings in
violation of Dr. Mansour's due process rights.
No. 17AP-615 5
VII. STANDARD OF REVIEW
{¶ 16} In an administrative appeal, pursuant to R.C. 119.12, the court of common
pleas reviews an order to determine whether it is supported by reliable, probative, and
substantial evidence, and is in accordance with law. Mansour v. State Med. Bd. of Ohio,
10th Dist. No. 14AP-829, 2015-Ohio-1716, ¶ 22. The common pleas court's review is a
hybrid form of review in which a court apprises all the evidence, giving due deference to the
administrative determination of conflicting evidence and credibility conflicts, but reviewing
legal questions de novo. Id. Our review is limited to whether the court of common pleas
abused its discretion, but on the issue of whether the Board's order was in accordance with
law, our review is plenary. Id., citing McRae v. State Med. Bd. of Ohio, 10th Dist. No. 13AP-
52, 2014-Ohio-667, ¶ 16-17.
VIII. ANALYSIS
{¶ 17} In his first assignment of error, Dr. Mansour asserts that the Board failed to
prove that Dr. Mansour received the July 2, 2014 letter from the Arizona Medical Board
and that the Board failed to prove that Dr. Mansour intended to mislead the Board with his
December 1, 2014 letter.
{¶ 18} The Board can revoke a physician's certificate to practice if the physician is
found to violate R.C. 4731.22(B)(5), "[m]aking a false, fraudulent, deceptive, or misleading
statement * * * in securing or attempting to secure any certificate to practice issued by the
board." A false, fraudulent, deceptive, or misleading statement "means a statement that
includes a misrepresentation of fact, is likely to mislead or deceive because of a failure to
disclose material facts, is intended or is likely to create false or unjustified expectations of
favorable results, or includes representations or implications that in reasonable probability
will cause an ordinarily prudent person to misunderstand or be deceived." Id.
{¶ 19} In Rajan v. State Med. Bd. of Ohio, 118 Ohio App. 3d 187, 195 (10th
Dist.1997), this court determined that intent to mislead is a necessary element to establish
a violation of R.C. 4731.22(B)(5). See also Gipe v. State Med. Bd., 10th Dist. No. 02AP-
1315, 2003-Ohio-4061; Bhama v. State Med. Bd., 10th Dist. No. 08AP-488, 2009-Ohio-
819. Direct evidence of intent is not necessary because intent may be inferred from the
surrounding circumstances. Hayes v. State Med. Bd. of Ohio, 138 Ohio App. 3d 762 (10th
Dist.2000).
No. 17AP-615 6
{¶ 20} Here, Dr. Mansour's testimony constantly shifted as to whether he was in
possession of the July 2014 letter from the Arizona Medical Board at the time he filed his
follow-up response to the Ohio Board in December 2014. He acknowledged that he did
receive the July letter. He initially stated that he did not know if his understanding of the
Arizona action was based on anything other than the July letter. He remembered the letter
being sent to him. He testified that he did not receive any other documents from Arizona
Medical Board except a letter of reprimand. He testified that his answer in the December 1,
2014 letter was based on interviews he had with the investigator and not based on the July
letter per se. He indicated that the letter may have been dated July 2, 2014, but it was not
received on July 2, it was some time after that, way past July when he received it, but he
did not know if he received it prior to December 1, 2014. He stated it was a big delay.
{¶ 21} The Board rejected this testimony and found Dr. Mansour's shifting
explanations not credible. There was evidence in the record that the letter was sent to the
correct address. There is a rebuttable presumption, sometimes called the mailbox rule, that
once a notice is mailed, it is presumed to be received in due course. Weiss v. Ferro Corp.,
44 Ohio St. 3d 178, 180 (1989); see also Gaston v. Medina Cty. Bd. of Revision, 133 Ohio
St.3d 18, 22, 2012-Ohio-3872, ¶ 17 (when both the date of mailing and the fact of receipt
have been established, courts take judicial notice of the ordinary course of the mail and
infer that in the ordinary course of the mail, the mailed document arrived on time). Here,
the date of the notice is July 2, 2014, Dr. Mansour acknowledged he received the letter, and
the letter was mailed to the correct address. The court of common pleas deferred to the
hearing examiner's credibility determination and did not abuse its discretion in concluding
that sufficient evidence existed that Dr. Mansour received the letter from the Arizona
Medical Board before he wrote his December 2104 letter to the Board. Intent to deceive
was adequately proven when one compares the letter from the Arizona Medical Board
stating that Arizona had filed charges against him with Dr. Mansour's claim that Arizona
was merely requesting additional information.
{¶ 22} Accordingly, we overrule the first assignment of error.
{¶ 23} In his second assignment of error, Dr. Mansour asserts that there is no
reliable, probative, and substantial evidence that Dr. Mansour intended to deceive the
No. 17AP-615 7
Board when he failed to report his domestic violence conviction on his 2012 renewal
application.
{¶ 24} It is undisputed that Dr. Mansour made a false statement in his renewal
application when he did not disclose that he had been convicted of domestic violence. Dr.
Mansour claimed that his attorney at the time, Mr. Rohrbaugh, told him that he did not
have to disclose the conviction because the attorney had previously disclosed the conviction
to a Board enforcement attorney. The hearing examiner found the explanation that his
failure to answer truthfully was somehow the fault of his prior counsel not credible. At the
end of the first day of the hearing, Dr. Mansour's attorney informed the hearing examiner
that he wished to call Mr. Rohrbaugh as a witness. The state's attorney informed the
hearing examiner that if Mr. Rohrbaugh testified, the state intended to call the Board
enforcement attorney to testify. Dr. Mansour's attorney then made the decision not to call
Mr. Rohrbaugh as a witness.
{¶ 25} Intent to mislead may be inferred from surrounding facts and circumstances,
such as when a physician knows information and fails to disclose it in response to a direct
question. Applegate v. State Med. Bd. of Ohio, 10th Dist. No. 07AP-78, 2007-Ohio-6384,
¶ 12. Here, Dr. Mansour knew that he had been convicted of domestic violence and failed
to disclose that in response to a direct question. His explanation for the omission was
deemed not credible. He was already under investigation at that time by the Board and
knew that his life and livelihood was tied up in defending the charges against him. The
intent to deceive was adequately proven by those circumstances.
{¶ 26} Accordingly, we overrule the second assignment of error.
{¶ 27} In his third assignment of error, Dr. Mansour argues that the Board erred in
admitting State's Ex.. No. 2(d), the transcript from his plea and sentencing hearing for drug
possession charges. Dr. Mansour argues that because it was unauthenticated and
uncertified, the transcript should not have been admitted. Additionally, Dr. Mansour
contends that the transcript should not have been admitted because it references additional
charges that were dismissed by the trial court that took his plea.
{¶ 28} The hearing examiner has broad discretion in admitting or rejecting
evidence. Stancourt v. Worthington City School Dist. Bd. of Edn., 164 Ohio App. 3d 184,
2005-Ohio-5702, ¶ 70 (10th Dist.) Although the hearing examiner was not bound by the
No. 17AP-615 8
rules of evidence, even under Evid.R. 901(A), authentication is satisfied by "evidence
sufficient to support a finding that the matter in question is what its proponent claims."
{¶ 29} Here, the document was obviously a transcript, it had the appropriate
heading, caption, court, judge, and case number of the journal entries of Dr. Mansour's
conviction. Dr. Mansour confirmed the attorney and prosecutor identified in the transcript
were those assigned to his case. For Evid.R. 901 authentication purposes, the common
manner of identifying a document is through testimony of a witness with knowledge. State
v. Silverman, 10th Dist. No. 05AP-837, 2006-Ohio-3826, ¶ 78. Before he was interrupted,
Dr. Mansour indicated that he believed the transcript was an accurate representation, and
seemed to reflect what the prosecutor's office had communicated. The hearing examiner
was within his discretion to admit the exhibit.
{¶ 30} Dr. Mansour also asserts that it was error for the hearing examiner to admit
the transcript because it references multiple felony counts that were dismissed in exchange
for the guilty plea to two misdemeanor counts of drug possession. In Perchan v. State Med.
Bd., 10th Dist. No. 91AP-270 (June 13, 1991), this court found that it was error to admit a
multicount indictment when the appellant had been convicted of only one count. But in
Perchan, this court also stated that it did not appear that the appellant was prejudiced by
the admission of that evidence.
{¶ 31} Here, the transcript was replete with the prosecutor's explanation of why the
other charges were being dropped, Dr. Mansour's cooperation with the investigation, and
other mitigating factors. In addition, Dr. Mansour and his attorney repeatedly mentioned
the fact that Dr. Mansour had been indicted on multiple felony counts. Dr. Mansour cannot
show prejudice from the admission of the transcript.
{¶ 32} Accordingly, we overrule the third assignment of error.
{¶ 33} In his fourth assignment of error, Dr. Mansour argues that the Board's factual
findings concerning his conviction for possession of drugs is not supported by reliable,
probative, and substantial evidence.
{¶ 34} The hearing examiner found that "from January 1, 2007 to September 30,
2008, Dr. Mansour issued prescriptions in order to illegally obtain, possess, and/or use a
controlled substance." (Report and Recommendation at 12.) These essential facts were
based on the sentencing transcript in which Dr. Mansour pled guilty, the prosecutor
No. 17AP-615 9
explained the criminal investigation, and Dr. Mansour's defense counsel concurred with all
the statements made by the prosecutor. The prosecutor explained that Dr. Mansour wrote
prescriptions for controlled substances to friends and family members with the intent that
those individuals would fill the prescriptions and give the drugs to Dr. Mansour for his
personal use.
{¶ 35} Before the hearing examiner, Dr. Mansour stated that he pled guilty to move
on with his life, but avoided directly answering whether he pled guilty to something he did
not do. The Board was not required to accept this later, more self-serving explanation for
his guilty plea. The factual basis of the guilty plea was adequately established by the
transcript of the proceedings in the Mahoning County Court of Common Pleas.
{¶ 36} Accordingly, the fourth assignment of error is overruled.
{¶ 37} In his fifth assignment of error, Dr. Mansour contends that his due process
rights were violated when the hearing examiner admitted the sentencing transcript and
excluded an affidavit by Mr. Rohrbaugh. As discussed in connection with assignment of
error number three, the transcript was properly admitted.
{¶ 38} As for Mr. Rohrbaugh's affidavit, Dr. Mansour had the opportunity to call Mr.
Rohrbaugh as a witness, where he would be subject to cross-examination, and he declined
to do so. Dr. Mansour cannot complain that he was deprived of his due process rights when
Mr. Rohrbaugh was available to testify, he had the opportunity to call him, and he declined
to do so.
{¶ 39} Accordingly, the fifth assignment of error is overruled.
IX. CONCLUSION
{¶ 40} Having overruled all five assignments of error, the judgment of the Franklin
County Court of Common Pleas is affirmed.
Judgment affirmed.
KLATT and SADLER, JJ., concur.
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