Khemsara v. Ohio Veterinary Med. Licensing Bd. , 2023 Ohio 718 ( 2023 )

[Cite as Khemsara v. Ohio Veterinary Med. Licensing Bd., 2023-Ohio-718.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
BHARAT K. KHEMSARA, DVM., :
Plaintiff-Appellant, : No. 111845
v. :
OHIO VETERINARY MEDICAL :
LICENSING BOARD,
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 9, 2023
Administrative Appeal from the Cuyahoga County Common Pleas Court
Case No. CV-21-953348
Appearances:
Kubyn & Ghaster and R. Russell Kubyn, for appellant.
David Yost, Ohio Attorney General, and Caroline E. Mills,
Assistant Attorney General, for appellee.
EILEEN A. GALLAGHER, J.:
Appellant Bharat Khemsara appeals from a decision of the Cuyahoga
County Court of Common Pleas affirming an adjudication order issued by appellee
the Ohio Veterinary Medical Licensing Board (the “Board”) that revoked
Khemsara’s license to practice veterinary medicine. Khemsara claims that the
common pleas court erred and abused its discretion in affirming the Board’s
adjudication order because (1) he was denied due process due to a lack of proper
notice of alleged licensure violations and the Board’s “sham proceedings” and (2)
the Board’s decision to revoke his veterinary license was “unconstitutional, illegal,
arbitrary, capricious, unreasonable and unsupported by the preponderance of
substantial, reliable, and probative evidence.” For the reasons that follow, we affirm
the common pleas court.
Procedural and Factual Background
Khemsara became a veterinarian in 1965 and was first licensed to
practice veterinary medicine in the state of Ohio in 1977. During the time period at
issue, he operated a veterinary clinic, the Euclid Veterinary Clinic, in Euclid, Ohio.
The Board is charged with regulating the practice of veterinary
medicine in Ohio. See R.C. Chapter 4741. The Board has the authority to initiate
disciplinary action against a licensee who violates the provisions of R.C. 4741.22(A),
including the rules of the Board and professional standards governing the proper
methods to be used in the care and treatment of animals. R.C. 4741.22(A)(1).
In early March 2021, the Board received a complaint from Barbara
Petras regarding the care Khemsara had provided to her cat, Blago, when the cat was
experiencing “breathing distress.” Petras alleged that Khemsara had misdiagnosed
and mistreated her cat, ultimately resulting in the cat’s death. Specifically, Petras
alleged:
My cat, 6 year old male tabby, BLAGO, was brought to the vet clinic
(Khemsara) on 2/24/21,[1] Saturday[,] by my son, Brenton Petras. The
cat was exhibiting breathing distress. Cat was given an [x]-ray and dx
with pneumonia by Khemsara. Was given Clavamox (2 boxes) and
Disal water pills as going home treatment. Cat was given medications
in the office, and bill was $544. The next day the cat was not improving.
My son took the cat back on the following Monday. Charge was $59 for
a shot to make the cat eat. Was told it will take time. Cat still worsened.
Office was called next day. Told to bring in cat for treatment next day
for same shot. Was told by the office staff to decide to spend money or
decide not to. Cat was given a breathing treatment with albuterol. And
office staff sent home breathing machine. Cat still not eating or
drinking. I, Barbara, was giving the cat subQ fluids on my own to keep
the cat alive. Cat not eating or drinking for 5 days. Called office again
to complain about worsened condition and was told to get a second
opinion. Went to Dr. Philip Price in Eastlake OH on Thursday 2/25/21.
Told needed x[-]ray. I declined [x-]ray and told Dr. Price to get [x-]ray
from Dr. Khemsara. Dr. Khemsara did not answer phone during work
hours on that Thursday, 2/25/2002. Cat was treated with shot from
Dr. Price and [a]ntibiotic. Cat worsened. Friday took cat back for [x-
]ray and [c]at died on [x-]ray table. Was told cat had cardiomyopathy
clearly seen on [x-]ray taken. I called Dr. Khemsara multiple times on
Friday to get [x-]ray over to Dr. Price before the [a]ppointment.
Khemsara delayed critical care to my cat, by #1 having no outgoing
greeting on the answering machine and not answering his phone with
urgent requests, and not responding timely to the [x-]ray medical
release to Dr. Price. My cat could not lay on it’s [sic] side because it was
filled with fluid. Dr. Khemsara misdiagnosed my animal and caused
immense pain and suffering to my animal as well as myself and my son
as we tried to save our beloved animal.
On March 5, 2021, the Board’s executive director, Theresa Stir
(“Stir”), sent letters to Khemsara and Price notifying them of the complaint and
requesting that they submit copies of Blago’s medical records and a signed narrative
1 Although Petras’ complaint indicates that her son first brought Blago to
Khemsara’s clinic for treatment on Saturday, February 24, 2021, February 24, 2021 was
a Wednesday, not a Saturday. Khemsara’s records indicate that Petras’ son brought Blago
in for treatment on Saturday, February 20, 2021.
of events to the Board. Khemsara and Price submitted documents, including copies
of x-rays, in response to the Board’s request.2
The medical records Khemsara submitted documented two visits to
his office on February 20 and February 22, 2021. According to the medical records,
on February 20, 2021, Blago “presented at the clinic for inappetence,” was
dehydrated and “heart sounds” could not be heard “due to fluid build-up.” A
radiograph was performed; “images of heart and lungs [were] unclear due to
excessive fluid in the thoracic cavity.” A “[p]roblems [l]ist” identified two
conditions: (1) respiratory infection and (2) “[c]ongestive heart failure; prognosis:
poor.” The records further reflect that Khemsara administered Midazolam (after
which Blago was able to eat when offered food), a B-12 liver injection, Lasix and
Zimeta and prescribed Clavamox, Prednisone and Cyproheptadine.
According to the medical records submitted by Khemsara, Blago was
back at the clinic two days later because he had “returned to not eating.” The records
reflect that Blago was dehydrated, that “heart sounds” could not be heard “due to
fluid build-up” and that a blood test and heart medication had been recommended
but that the “owner refused.” A “[p]roblems [l]ist” identified two conditions: (1)
respiratory infection and (2) “[a]dvanced CHF; prognosis: poor.” The records
reflect that Khemsara administered Midazolam, Ampicillin, Lasix and Albuterol to
Blago and “[s]ent home breathing machine with [o]wner.”
2 The record reflects that, in response to the Board’s request, Khemsara submitted
medical records and that Price submitted a narrative and medical records.
The medical records Price submitted documented two visits to his
office on February 25 and February 26, 2021. In the narrative he provided, he
stated:
After discussion it seemed as though the owner was satisfied with the
diagnosis and treatment provided at Euclid. I had suggested further
lab work including x-rays and routine blood work to clarify the
situation as 5 days had gone by. The owner didn’t want to do any lab
work and seemed to be wishing that I pick up treatment where Euclid
left off. It seemed that they were having a communication issue with
Euclid. I had little to go by and I certainly couldn’t render a second
opinion.
Price indicated that a physical examination of the cat on February 25,
2021 revealed that the cat was “dyspnic and had a sub normal temperature,” which
led Price to conclude that the cat was either “in critical terminal condition losing
temperature or * * * had responded to the [C]lav[a]mox and [L]asix” provided by
Khemsara. Price stated that he administered a higher dose of Lasix and an
antibiotic, Baytril, but “stressed the need for some diagnostics as a guide to further
treatment.”
The medical records reflect that Petras’ son returned with Blago the
following day and asked “which lab work might be the most meaningful.” Price
indicated that “[g]iven the choice,” he chose x-rays over bloodwork and that Blago
died as he was being x-rayed, likely due to respiratory failure.
Price related that he called Khemsara’s clinic several times on
February 25 and 26, 2021 in an attempt to obtain or discuss the prior x-ray that had
been taken, but received no response until after the cat had died. He indicated that
the x-ray Khemsara had taken “appeared similar to mine but the condition was a bit
less progressed”; “[m]ore open lung was visible on their x-ray with lots of pulmonary
edema.” Price stated that he “suspected” Blago had cardiomyopathy but that he
could not “confirm a specific diagnosis” because a necropsy was not performed.
On April 20, 2021, following a review of the documents submitted,
the Board issued a Notice of Opportunity for Hearing to Khemsara (the “notice” or
“notice of opportunity for hearing”). The notice charged Khemsara with violations
of R.C. 4741.22(A)(1) and Ohio Adm.Code 4741-1-10 for providing veterinary
medical care that fell below the minimum standards of veterinary care and resulted
in the death of Petras’ cat as follows:
a. You documented fluid in the chest but did not take action to
treat;
b. You were unable to hear heart sounds indicating that the
prognosis was poor. However, you did not offer any alternative
treatments or a referral to a specialist or a more equipped
veterinary facility.
The notice also indicated that this was Khemsara’s seventh
disciplinary case before the Board. The notice listed each of the prior disciplinary
actions that had been taken against Khemsara “for standard of care and/or medical
records violations.”
In response to the notice, Khemsara requested a hearing. An
administrative hearing was held on September 8, 2021. Khemsara was represented
by counsel at the hearing. Stir, Kimberly Riker-Brown, D.V.M., and Khemsara
testified at the hearing.3
Stir, a registered nurse and attorney in good standing in the state of
Ohio, stated that she had been the Board’s executive director for 15 years. She
described the allegations Petras had made against Khemsara as set forth in her
complaint, explained the investigation that had been conducted of those allegations,
identified the documents in the Board’s file and testified regarding service of
required notices on Khemsara.
Stir then proceeded to describe (1) the condition of the cat and
Khemsara’s diagnoses and treatment as documented in the medical records
Khemsara provided to the Board, i.e., which she described as treating the cat for
“[l]ikely pneumonia or some such thing like that,” and (2) the condition of the cat
and Price’s treatment and diagnoses as reflected in the medical records and
narrative Price provided to the Board, i.e., which she described as diagnosing the cat
with “suspected cardiomyopathy.”
Stir testified that, based on the medical records submitted to the
Board, the cat was brought in to Khemsara due to concerns of “inappetence, not
having an appetite or eating.” She indicated that a radiograph was performed which
3 In addition to the witness testimony, the notice of opportunity for hearing,
Khemsara’s request for hearing, notices related to the scheduling of the hearing, the
Board’s case file (including Petras’ complaint, correspondence to Petras regarding her
complaint, the Board’s letters to Khemsara and Price, the medical records received from
Khemsara and Price and the narrative received from Price), documents evidencing the
prior disciplinary actions against Khemsara and a narrative produced by Khemsara on
the date of the hearing were admitted into evidence at the hearing.
showed that the cat’s heart and lungs were unclear due to excessive fluid in the
thoracic cavity. When asked whether that “[w]ould * * * signal or flag any kind of a
medical condition,” Stir responded: “Well, there’s all kinds of things that it could
lead to. I mean, you would think pneumonia or — but when — congestive heart
failure or — but when there’s — you need to have a clear picture to make an accurate
diagnosis.”
As to whether “any other additional diagnostics * * * should have been
considered” at that time, Stir stated, based on her “background as a nurse” and her
“experience as the executive director for the board,” “Lab work should have been
done as well I would think. I don’t know. Maybe a specialist probably because
clearly there was something going on that they couldn’t diagnose because of the
fluid.” Stir stated that she was not familiar with at least two of the medications
Khemsara had prescribed for Blago.
Over Khemsara’s objection, although Stir admitted that she was “not
familiar with, you know, animal care,” and had no education in veterinary medicine
or treating animals, the Board permitted Stir to offer her opinion regarding the
standard of care provided by Khemsara:
Q. What types of things could have — what other types of
alternatives * * * would have been available to treat that
condition to the extent that you’re aware?
A. They could have intubated the cat. They could have done other
things, especially with the diagnostics. I would have probably at
least gotten blood work to see what other medications would
have been more compatible.
Q. And kind of the same question for any of the treatment or testing
done regarding the difficulty hearing the heartbeat, what types
of things could have been considered to address that condition?
A. I probably would have sent it — referred it on to somebody who
could have done either an office visit, ultrasound or gotten a
clearer [x]-ray.
Q. Is there any documentation in the medical record that any of
those alternatives were discussed with the client or presented at
all?
A. No.
Q. Okay. Based on the information contained in the medical chart,
the records and the test results, and your experience as a nurse
and as the executive director of the veterinary board for 15 years,
and the test results for Barbara Petras’s cat, have you reached an
opinion to a reasonable degree of medical certainty as to whether
the standard of care used when treating Ms. Petras’s cat departed
from the minimal standards of care of similar veterinarians
under similar circumstances?
A. I don’t believe that it rose to the minimal standards of care.
Q. And what is that opinion based on?
A. Based on that they — I don’t believe that this veterinarian was
capable of treating the animal adequately.
When asked whether the treatment of cardiomyopathy would be the
same or different from the treatment of pneumonia, Stir responded, “It would most
likely be different,” but she could not “expand” or “explain” her response even “a
little bit” when asked to do so.
Stir also testified regarding Khemsara’s disciplinary history and
identified various documents that documented that history4 as follows:
• Adjudication Order (dated August 24, 2004) for Case File #03-
03-072 — Violations of R.C. 4741.22(A) and O.A.C. 4741-1-03(A)
and (B)(6)(a) for “not properly reading the blood work for
‘Harley’ and making an improper diagnosis, having expired
drugs in his pharmacy, not mainting [sic] proper controlled
substance logs and not having a lock box for your controlled
substances” — One month suspension with 15 days suspended, a
$250 fine and payment of $780 in costs.
• Adjudication Order (dated May 10, 2007) for Case File #05-06-
127 — Violations of R.C. 4741.22(A) and (AA) and Ohio
Adm.Code 4741-1-03(A) and 4741-1-21(I) for failure to
“adequately communicate the complications during surgery of
the spay of ‘Mandy’ to the owners or to the veterinarian who
would be releasing the dog to the owners” and deficient
treatment records regarding the complications during the
surgery — Two-week suspension and submission of 10 surgical
records that “meet the Board’s satisfaction.”
• Settlement Agreement (dated January 2011) for Case File #10-
10-026 — Involving alleged violations of R.C. 4741.22(Y) and
Ohio Adm.Code 4741-1-21(A) — Payment of investigative costs
of $430, completion of a course on recordkeeping and
submission of five surgical records following completion of the
recordkeeping course.
• Settlement Agreement (dated March 2015) for Case File #14-15-
113 — Involving alleged violations of R.C. 4741.22(A) and (Y) and
Ohio Adm.Code 4741-1-10 and 4741-1-21 — Payment of $2000
fine and completion of four continuing education courses on
medical records, radiology, oncology and physical examinations.
• Settlement Agreement (dated March 2019) for Case File #18-19-
127 — Involving alleged violations of R.C. 4741.22(A)(25) and
Ohio Adm.Code 4741-1-21 — Payment of $1000, completion of a
continuing education course on medical records and submission
4 Khemsara stipulated to the admissibility of these documents.
of 10 medical records that comply with Ohio Adm.Code 4741-1-
21 to the board quarterly for one year.
• Adjudication Order (dated April 15, 2021) for Case File #18-19-
127 & 20-20-036 — Violations of R.C. 4741.22(A)(18) and (25)
and Ohio Adm.Code 4741-1-21 for performing veterinary
medicine while under suspension and for failure to document
physical examination findings or site of vaccine injection in
medical records — 30-day suspension, payment of $1000 fine
and cost of the hearing and a written reprimand.
On cross-examination, Stir testified that she had not spoken with
Petras or Price regarding the treatment of Blago or the allegations against
Khemsara. She stated that neither Petras nor Price had been subpoenaed to testify
at the hearing. Stir could not say whether Price disagreed with the treatment
Khemsara provided Blago and acknowledged that Price had stated that when Blago
was brought into his office for treatment, Blago’s “[p]rognosis was guarded at best
or grave for any long term survival.” Stir further acknowledged that, according to
Khemsara’s notes, Petras had refused a recommended blood test for Blago but stated
that she did not know why Petras had refused the test because Khemsara did not
document the reason for her refusal. Stir indicated, however, that an individual’s
finances should not impact the standard of care that is owed a patient.
Riker-Brown, a veterinarian, a Board member and an associate
partner at Shoreland Animal Hospital in Toledo, Ohio, also testified at the hearing.
Khemsara objected to Riker-Brown’s testimony based on (1) her position as a Board
member, (2) the lack of notice to Khemsara that she would be testifying, (3) the
Board’s failure to provide an expert report for her testimony and (4) the lack of
separation of witnesses. The Board chair overruled Khemsara’s objections on the
grounds that (1) Riker-Brown had the same credentials as Khemsara and was simply
a veterinarian providing her opinion to “fellow veterinarian[s],” (2) Riker-Brown
had recused herself from participating in the proceedings, including from
deliberating and voting on the matter, due to her role as a witness in the case and
(3) Khemsara had not requested separation of witnesses. Riker-Brown testified that
the other Board members knew and understood, prior to the commencement of the
hearing, that she would be testifying as a witness in the case and would not be
participating in the hearing as a Board member. Three of the five remaining Board
members (who participated in the hearing as Board members) were veterinarians,
one was a veterinary technician and one was a member of the public.
Riker-Brown testified that she had been certified to practice
veterinary medicine in the state of Ohio since 2003, that she had been working at
Shoreland Animal Hospital for 18 years and that she had previously worked at two
other small animal hospitals in Toledo and a mixed animal practice in Oregon.
Riker-Brown indicated that she regularly reviews medical charts, records and test
results of patients that she has not seen in person and that review and reliance upon
medical records is an accepted practice within the veterinary medical community.
Riker-Brown stated that she first learned that she would be testifying
at the hearing that morning and that, based on her ten-minute review of the medical
records and test results for Blago, she had developed an opinion “within a
reasonable degree of veterinary certainty as to whether the standard of care used
when treating [Petras’] cat departed from the minimal standards of care of similar
veterinarians under similar circumstances.” She testified that, in her opinion,
Khemsara’s treatment of Blago “fell below the standard of care,” i.e., that “the cat
was not treated to the standard of care of veterinary medicine * * * in 2021.”
Riker-Brown explained that it could be “clearly seen” from the
radiograph taken by Khemsara on February 20, 2021 that the cat had cardiomegaly
(an enlarged heart) and pulmonary edema (fluid in the interstitial space in the
lungs). She stated that Zimeta, which Khemsara had administered to Blago on
February 20, 2021, “is only labeled * * * to treat fevers” in horses and dogs, is “not
labeled in cats” and causes “irreversible bone marrow suppression in cats.” She
indicated that Khemsara took only a single radiograph in diagnosing Blago (when
“at least two or three views” in different positions were needed “to accurately get a
diagnosis and accurately treat a [cat] that’s in respiratory distress”) and that he had
failed to run blood work to look for “[a]nything that caused respiratory distress.” In
addition, Riker-Brown noted that Prednisone, one of the medications Khemsara
prescribed to treat Blago, is “contraindicated in pneumonia and cardiac disease”
because it “is an anti-inflammatory,” “suppresses the immune system” and “makes
the heart function poorly.” She further indicated that the Lasix Khemsara had
administered to Blago at the clinic to address the fluid in the cat’s lungs was
insufficient because Lasix has a “very short” half-life and that additional Lasix
should have been sent home with Blago to provide continued relief.
With respect to the treatment Khemsara provided when Blago was
“not eating again” on February 22, 2021, Riker-Brown stated that Khemsara
administered an additional Lasix injection and Albuterol, which is used to treat
asthma, not pneumonia or cardiac heart failure. She testified that a follow-up x-ray
should have been taken and blood work done; however, she noted that Khemsara
had recommended blood work and the owner had refused. She stated that, in her
view, additional Lasix should have, again, been sent home with Blago to provide
continued relief, that Blago should have also been given oxygen therapy and that
Blago should have been referred to a specialist because “the cat was decompensating
more than what Dr. Khemsara could provide treatment for.” Riker Brown testified
that a specialist could have offered a cardiac ultrasound, which could have revealed
why Blago was experiencing congestive heart failure or an enlarged heart, and
offered heart medication or other treatments to help the heart function better.
On cross-examination, Riker-Brown acknowledged that she had not
spoken to Petras, Khemsara or Price in developing her opinion that Khemsara had
violated the minimum standard of care. She stated that, even though Blago had
passed away in Price’s care, in her opinion, Price’s care did not fall below the
standard of care. She explained: “The cat died in his care because it was so
decompensated because it wasn’t treated appropriately the first two times it was
seen * * *. So Dr. Price didn’t have a chance to treat the cat.”
Riker-Brown stated that if Khemsara had made additional
recommendations to the owner, they should have been reflected in Blago’s medical
records. She indicated that, in her opinion, a client’s finances do not impact the
standard of care that is owed to them and that she would present the same plan of
care for all clients, regardless of their finances.
Khemsara testified that he operated a “small animal clinic” in Euclid,
Ohio, that it was a walk-in clinic that did not make appointments and that most of
his clients were “poor people.” Khemsara stated that he remembered Petras, that
she had not previously been at the clinic and that she brought the cat in when the
“[p]rognosis was very poor,” “[g]one too far.”
Khemsara testified that, on February 20, 2021, Petras brought in her
eight-year-old cat, complaining of inappetence. He stated that, during the physical
exam of the cat, heart sounds were not clearly heard, so he performed an x-ray, and
the radiograph confirmed a fluid build-up in the thoracic cavity. He indicated that
he informed Petras that the cat had congestive heart failure and that the prognosis
was very poor. He said that he gave the cat “some shots” and an IV, after which the
cat began eating. He stated that he gave the cat Lasix, B-12, a liver injection and a
Zimeta intramuscular injection.
Khemsara testified that Petras came back with her cat two days later,
complaining of inappetence and a nonproductive cough. He stated that he then
asked Petras “how much [she was] willing to pay for treating her 8-years-old cat?”
He indicated that Petras responded that she was going to treat the cat herself and
“come back after two days.” He stated that Petras never returned to the clinic and,
instead, went to Price. When asked why he did not perform more than one x-ray,
Khemsara responded: “For diagnosing X-ray why you need three X-rays? People
don’t want to pay money. Took minimum care to do the job.” Khemsara also stated
that he had offered to do bloodwork, but that Petras had declined it. With respect
to why he did not refer Petras to a specialist, Khemsara at first testified that “she
didn’t come back so I could send her to a specialist or what.” Later, he testified that
he told Petras “the first time” she came to the clinic, “We told her we couldn’t —
prognosis very poor. Go to some other place. Go to specialist,” but that “[s]he didn’t
want to spend money.” Khemsara stated that Price did not do anything different
than he would have done and that he did not believe anything could have been done
to save Blago.
At the hearing, Khemsara produced a narrative that had not been
previously provided to the Board. He testified that the narrative had been created a
“few weeks” earlier and was typed up by his “help,” i.e., a girl at his clinic, whose
name he could not remember and who was not in the room when he treated Blago.
Khemsara stated that everything contained in the narrative was “correct and true.”
After Khemsara’s direct examination, the Board chair, who was also a
veterinarian, noted that veterinarians are taught to obtain at least two views when
performing an x-ray to confirm a diagnosis or to get a closer diagnosis and
questioned Khemsara why the failure to do so in this case was not a violation of the
standard of care. She also asked Khemsara (1) why it was not a violation of the
standard of care to prescribe Prednisone (which she indicated could cause a cat to
go into acute congestive heart failure) to a cat with known or suspected congestive
heart failure, “especially without documenting it to the owner,” (2) why the cat was
treated with Albuterol, which is expensive and stressful for the cat, when there was
no diagnosis of asthma and (3) why if Khemsara had referred Petras elsewhere for
further treatment or recommended that the cat return for a recheck, as he had
claimed, no notes to that effect were included in the medical records.
Khemsara did not have a meaningful response to any of the chair’s
inquiries. With respect to the Prednisone, Khemsara stated that the cat “had a lung
problem too” and that with “[p]neumonia, you have to give steroid, too.” The chair
disputed this and stated that “[s]teriods were contraindicated.” With respect to the
Albuterol, Khemsara stated that it would help “[a] little bit for this condition, but
not help one hundred percent, but the cat not eating.” The chair disputed that
Albuterol would help with the cat’s eating issues. When asked whether it had
occurred to him that the cat was not eating because it could not breathe well,
Khemsara replied, “No.”
Following the hearing, the Board went into a deliberative session.
After deliberating, the Board voted to revoke Khemsara’s license. The chair
explained the Board’s decision as follows:
[W]e have come to the finding of revoking the license of Dr. Bharat
Khemsara for standard of care violation as alleged on this notice 21-21-
030 for inappropriate therapy based on the differential diagnosis and
the poor prognosis that contributed to the demise of the cat, and also
in discussion and deliberation taking into consideration the multiple
violations since 2003 and apparent lack of learning and recordkeeping
and so forth, and we find it in the public’s best interest that we pursue
revocation.
On September 9, 2021, the Board issued a written adjudication order
revoking Khemsara’s veterinary license, stating that the Board found that the
charges against Khemsara had been proven and that the Board had voted to revoke
Khemsara’s license to practice veterinary medicine for the following reasons:
1. The board found that Dr. Khemsara provided inappropriate
medical therapy in face of the differential diagnosis and the poor
prognosis which contributed to the demise of the cat.
2. The [b]oard also took into consideration the multitude of
previous violations and disciplinary actions against Dr.
Khemsara.
Khemsara filed an administrative appeal of the Board’s decision with
the Cuyahoga County Court of Common Pleas. On July 26, 2022, the common pleas
court affirmed the Board’s decision, concluding that the Board’s decision did not
violate Khemsara’s due process rights, was supported by reliable, probative and
substantial evidence and was in accordance with the law.
Khemsara appealed to this court, raising the following two
assignments of error for review:
1. The lower appellate court erred to the prejudice of the Appellant
and abused its discretion by affirming the Appellee’s revocation
of the Appellant’s license to practice veterinary medicine based
upon the Appellee’s failure to provide adequate, proper, and
effective notice of the alleged licensure violations, depriving the
Appellant of the constitutional right to due process of law, and
conducting sham proceedings.
2. The lower appellate court erred to the prejudice of the Appellant
and abused its discretion by affirming the Appellee’s revocation
of the Appellant’s license to practice veterinary medicine as such
was unconstitutional, illegal, arbitrary, capricious,
unreasonable, and unsupported by the preponderance of
substantial, reliable, and probative evidence.
Law and Analysis
Standard of Review
The standard of review for an appeal to common pleas court from an
administrative order revoking a license is contained in R.C. 119.12(M). Capital Care
Network of Toledo v. Ohio Dept. of Health, 153 Ohio St.3d 362, 2018-Ohio-440, 106
N.E.3d 1209, ¶ 24. In an administrative appeal under R.C. 119.12, a common pleas
court may affirm an administrative order “if it finds, upon consideration of the entire
record and any additional evidence the court has admitted, that the order is
supported by reliable, probative, and substantial evidence and is in accordance with
law.” R.C. 119.12(M); Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614
N.E.2d 748 (1993). R.C. 119.12(M) requires a reviewing common pleas court to
conduct two inquiries: (1) a hybrid factual/legal inquiry and (2) a purely legal
inquiry. As to the hybrid inquiry, i.e., whether the administrative order is supported
by reliable, probative, and substantial evidence:
“[T]he common pleas court must give deference to the agency’s
resolution of evidentiary conflicts, but ‘the findings of the agency are by
no means conclusive.’ * * * ‘Where the court, in its appraisal of the
evidence, determines that there exist legally significant reasons for
discrediting certain evidence relied upon by the administrative body,
and necessary to its determination, the court may reverse, vacate, or
modify the administrative order.”’ Ohio Historical Soc. v. State Emp.
Relations Bd., 66 Ohio St.3d 466, 470-471, 613 N.E.2d 591 (1993),
quoting Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 111, 407
N.E.2d 1265 (1980). * * * “[A]n agency’s findings of fact are presumed
to be correct and must be deferred to by a reviewing court unless that
court determines that the agency’s findings are internally inconsistent,
impeached by evidence of a prior inconsistent statement, rest upon
improper inferences, or are otherwise unsupportable.” Ohio Historical
Soc., 66 Ohio St.3d at 471, 613 N.E.2d 591; VFW Post 8586 v. Ohio
Liquor Control Comm., 83 Ohio St.3d 79, 81, 697 N.E.2d 655 (1998).
Bartchy v. State Bd. of Edn., 120 Ohio St.3d 205, 2008-Ohio-4826, 897 N.E.2d
1096, ¶ 37; Buckeye Relief, L.L.C. v. State Bd. of Pharm., 2020-Ohio-4916, 160
N.E.3d 767, ¶ 17 (8th Dist.); see also Capital Care Network at ¶ 25 (An
administrative appeal to the common pleas court “does not provide a trial de novo”;
“where the agency’s decision is supported by sufficient evidence and the law, the
common pleas court lacks authority to review the agency’s exercise of discretion,
even if its decision is ‘admittedly harsh.’”), quoting Henry’s Cafe, Inc. v. Bd. of
Liquor Control, 170 Ohio St. 233, 236-237, 163 N.E.2d 678 (1959).
“Reliable” evidence is ‘“dependable”’ evidence that “can be
confidently trusted,” i.e., ‘“there must be a reasonable probability that the evidence
is true.”’ Bartchy at ¶ 39, quoting Our Place, Inc. v. Ohio Liquor Control Comm.,
63 Ohio St.3d 570, 571, 589 N.E.2d 1303 (1992). “Probative” evidence is ‘“evidence
that tends to prove the issue in question; it must be relevant in determining the
issue.’” Bartchy at ¶ 39, quoting Our Place at 571. Evidence is “substantial” if “it
has some weight, importance, and value.” Buckeye Relief at ¶ 17, citing Bartchy at
¶ 39.
As to the whether the administrative order is “in accordance with the
law,” the common pleas court conducts a de novo review. Buckeye Relief at ¶ 17
(“With respect to the purely legal inquiry, while the reviewing [common pleas] court
must defer to the agency’s findings of facts, it ‘must construe the law on its own.’”),
quoting Bartchy at ¶ 38.
Our role in reviewing the judgment of the common pleas court in such
a case is further constrained. We review the common pleas court’s decision
regarding the evidentiary basis for the administrative order, i.e., whether the
administrative order is supported by reliable, probative and substantial evidence,
for abuse of discretion. Pons, 66 Ohio St.3d at 621, 614 N.E.2d 748; Buckeye Relief
at ¶ 19. With respect to purely legal questions, such as the construction of a statute
or constitutional provision, we conduct a de novo review. McClendon v. Ohio Dept.
of Edn., 2017-Ohio-187, 77 N.E.3d 523, ¶ 9 (8th Dist.); see also Harrison v. Ohio
Veterinary Med. Licensing Bd., 10th Dist. Franklin No. 08AP-408, 2008-Ohio-
6519, ¶ 7 (“[A]n appellate court does have plenary review of purely legal questions
in an administrative appeal.”). Thus, only if the common pleas court abused its
discretion or committed legal error, may the court of appeals may reverse, vacate or
modify the judgment of the common pleas court.
A court abuses its discretion where its decision is unreasonable,
arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983). Abuse of discretion is “a very high standard.” Supportive
Solutions Training Academy, L.L.C., v. Electronic Classroom of Tomorrow, 8th
Dist. Cuyahoga Nos. 95022 and 95287, 2013-Ohio-3910, ¶ 11. As the Ohio Supreme
Court explained in Pons:
While it is incumbent on the [common pleas] court to examine the
evidence, this is not a function of the appellate court. The appellate
court is to determine only if the [common pleas] court has abused its
discretion, i.e., being not merely an error of judgment, but perversity of
will, passion, prejudice, partiality, or moral delinquency. Absent an
abuse of discretion on the part of the [common pleas] court, a court of
appeals may not substitute its judgment for those of the * * * board or
a [common pleas] court. Instead, the appellate court must affirm the
[common pleas] court’s judgment.
Pons at 621.
Following a careful review of the record in this case, Khemsara has
not shown that the common pleas court erred or abused its discretion in affirming
the Board’s revocation of Khemsara’s license to practice veterinary medicine.
Due Process and in Accordance with the Law
In his first assignment of error, Khemsara challenges the common
pleas court’s determination that “the administrative proceeding did not violate [his]
due process rights.”
The Fourteenth Amendment to the United States Constitution and
Ohio Constitution, Article I, Section 16, require that administrative proceedings
comport with due process. Edmands v. State Med. Bd. of Ohio, 10th Dist. Franklin
No. 14AP-778, 2015-Ohio-2658, ¶ 23, citing Mathews v. Eldridge, 424 U.S. 319, 96
S.Ct. 893, 47 L.Ed.2d 18 (1976), and Doyle v. Ohio Bur. of Motor Vehicles, 51 Ohio
St.3d 46, 554 N.E.2d 97 (1990). ‘“Although due process is flexible and calls for such
procedural protections as the particular situation demands, the basic requirements
of procedural due process are notice and an opportunity to be heard.’” (Citations
omitted.) Edmands at ¶ 23, quoting Fairfield Cty. Bd. of Commrs. v. Nally, 143
Ohio St.3d 93, 2015-Ohio-991, 34 N.E.3d 873, ¶ 42. Procedural due process requires
administrative agencies to give fair notice of the precise nature of the charges at
issue. Griffin v. State Med. Bd., 10th Dist. Franklin No. 11AP-174, 2011-Ohio-6089,
¶ 22. “In addition, the right to a hearing includes the right to appear at the hearing
prepared to defend oneself through testimony, evidence, or argument against the
charges brought.” Bennett v. Ohio Dept. of Edn., 4th Dist. Scioto No. 21CA3948,
2022-Ohio-1747, ¶ 39.
Khemsara contends that he was denied due process because (1) the
notice of opportunity for hearing issued by the Board “violated [his] rights” and did
not comply with R.C. 119.07 and (2) the Board’s “sham proceedings” “eliminated
[his] opportunity to defend against the alleged licensure violations.” Khemsara’s
contentions are meritless.
R.C. 119.07 states, in relevant part:
Except when a statute prescribes a notice and the persons to whom it
shall be given, in all cases in which section 119.06 of the Revised Code
requires an agency to afford an opportunity for a hearing prior to the
issuance of an order, the agency shall give notice to the party informing
the party of the party’s right to a hearing. Notice shall be given by
registered mail, return receipt requested, and shall include the charges
or other reasons for the proposed action, the law or rule directly
involved, and a statement informing the party that the party is entitled
to a hearing if the party requests it within thirty days of the time of
mailing the notice. The notice shall also inform the party that at the
hearing the party may appear in person, by the party’s attorney, or by
such other representative as is permitted to practice before the agency,
or may present the party’s position, arguments, or contentions in
writing and that at the hearing the party may present evidence and
examine witnesses appearing for and against the party. A copy of the
notice shall be mailed to attorneys or other representatives of record
representing the party.
Khemsara does not explain how or why he contends the notice of opportunity for
hearing in this case did not meet the requirements of R.C. 119.07 or otherwise
“violated [his] rights.” For that reason alone, we could disregard his argument. ‘“If
an argument exists that can support [an] assigned error, it is not this court’s duty to
root it out.’” Strauss v. Strauss, 8th Dist. Cuyahoga No. 95377, 2011-Ohio-3831,
¶ 2, quoting Cardone v. Cardone, 9th Dist. Summit Nos. 18349 and 18673, 1998
Ohio App. LEXIS 2028, 22 (May 6, 1998); see also Rodriguez v. Rodriguez, 8th Dist.
Cuyahoga No. 91412, 2009-Ohio-3456, ¶ 7 (“[I]t is not the duty of an appellate court
to search the record for evidence to support an appellant’s argument as to any
alleged error.”); App.R. 12(A)(2).
However, even if we were to consider the issue, the record reflects that
Khemsara was properly served with the notice, that the content of the notice
complied with R.C. 119.07 and that Khemsara had a reasonable opportunity to be
heard regarding the charges against him.
The notice of opportunity for hearing specifically listed “the charges
or other reasons for the proposed action” — i.e., the complaint received from Petras
regarding the veterinary medical care provided to her cat, the Board’s review of the
medical records provided by Khemsara, its determination that Khemsara’s medical
care fell below the minimum standards of veterinary care because he “documented
fluid in the [cat’s] chest but did not take action to treat” and he was “unable to hear
heart sounds indicating that the prognosis was poor” but “did not offer any
alternative treatments or a referral to a specialist or a more equipped veterinary
facility” and the prior disciplinary actions taken against Khemsara, each of which
was specifically listed. The notice identified the specific laws and rule involved, i.e.,
R.C. 4741.22(A)(1) and Ohio Adm.Code 4741-1-10, and the notice informed
Khemsara that (1) he was entitled to a hearing if requested within thirty days; (2) at
the hearing, he could appear in person, by his attorney, or by such other
representative as the Board may permit to appear for him (or he could present his
position, arguments, or contentions in writing) and (3) at the hearing, he could
present evidence and examine witnesses appearing for and against him.
Khemsara also contends that he was denied due process because (1)
“all of the members were biased, partial and prejudiced against [him] to such a great
degree that [it] adversely and negatively affected the [Board’s] ‘decision’ to revoke
[Khemsara’s] license,” (2) the Board “refused to allow certain questions [and]
procedural clarifications” at the hearing, (3) he was not provided a list of witnesses
in advance of the hearing, (4) Petras and Price were not subpoenaed to testify at the
hearing, (5) Riker-Brown was a Board member, not an “independent ‘expert’
witness,” and (6) Riker-Brown did not provide an expert report. Once again,
Khemsara’s arguments are unavailing.
First, Khemsara has not shown that any of the Board members were
biased, partial or prejudiced against him. Although Khemsara asserts that one
Board member “stated on the Record that the board had made a decision prior to
the evidentiary hearing to revoke [Khemsara’s] license,” he includes no citation to
the record supporting this claim. Accordingly, we disregard it. App.R. 12(A)(2)
(“The court may disregard an assignment of error presented for review if the party
raising it fails to identify in the record the error on which the assignment of error is
based * * * as required under App. R. 16(A).”); App.R. 16(A)(7) (“The appellant shall
include in its brief * * * [a]n argument containing the contentions of the appellant
with respect to each assignment of error presented for review and the reasons in
support of the contentions, with citations to the authorities, statutes, and parts of
the record on which appellant relies.”).
Likewise, Khemsara has not shown that he was denied due process
because the Board “refused to allow certain questions [and] procedural
clarifications” at the hearing. In his appellate brief, Khemsara does not identify the
specific “questions” he was allegedly precluded from asking or “clarifications” he
was allegedly precluded from seeking and does not explain how, if at all, the Board’s
“refus[al]” to allow such questions or clarifications adversely impacted the decision
in this case. R.C. 119.09 states that, at a R.C. 119.12 hearing:
The agency shall pass upon the admissibility of evidence, but a party
may at the time make objection to the rulings of the agency thereon,
and if the agency refuses to admit evidence, the party offering the same
shall make a proffer thereof, and such proffer shall be made a part of
the record of such hearing.
Khemsara made no such proffer in this case.
The rules of civil procedure, including its discovery provisions, do not
apply in administrative proceedings. See, e.g., Bennett, 2022-Ohio-1747, at ¶ 40
(“An administrative board meets ‘its duty as to “discovery” by supplying [a licensee]
with sufficient information enabling him [or her] to properly respond to the
charges.’”), quoting Carratola v. Ohio State Dental Bd., 9th Dist. Summit No.
18658, 1998 Ohio App. LEXIS 2020, 11-12 (May 6, 1998); Miccichi v. Ohio State
Dental Bd., 5th Dist. Tuscarawas No. 86AP-080063, 1987 Ohio App. LEXIS 6740,
6-7 (May 4, 1987). Pursuant to R.C. 119.09, a party to an administrative hearing
may request that the administrative board or agency issue a subpoena to compel the
attendance of a witness at the hearing.
Riker-Brown recused herself and was not participating in the
proceedings as a voting member of the Board at the time she testified at the
administrative hearing. Khemsara never requested a list of witnesses nor did he
request that the Board subpoena Petras or Price to testify at the hearing.
Accordingly, the Board was not required to provide a list of witnesses or to subpoena
Petras or Price to testify at the hearing. See, e.g., Walters v. Ohio State Dept. of
Admin. Servs., 10th Dist. Franklin No. 06AP-472, 2006-Ohio-6739, ¶ 29 (“Pursuant
to R.C. 119.09, if requested by a party to the adjudicatory hearing, an administrative
agency must issue a subpoena to compel the attendance of a witness.”); Miccichi at
6 (“[I]t was not error for the Board to refuse to furnish a list of witnesses. In a normal
judicial action, an adverse party would be required to furnish a list of potential
witnesses. * * * This principle did not apply to the administrative hearing since the
Rules of Civil Procedure do not apply in an agency hearing.”); see also Bingham v.
Ohio Veterinary Med. Licensing Bd., 9th Dist. Summit No. 18510, 1998 Ohio App.
LEXIS 532, 17-20 (Feb. 11, 1998) (rejecting argument that right to a fair and
impartial hearing was violated because board was exposed to evidence during
investigation that was not subject to cross-examination); Westlake v. Ohio Dept. of
Agriculture, 10th Dist. Franklin Nos. 08AP-71 and 08AP-72, 2008-Ohio-4422, ¶ 19
(“[A]dministrative agencies are, generally, not bound by the strict rules of evidence
applied in court. * * * Thus, hearsay is not precluded in administrative hearings.
* * * [H]earsay evidence may be considered in administrative proceedings where the
statement is not inherently unreliable and constitutes substantial, reliable, and
probative evidence.”).
Further, the Board was not required to provide an expert report or to
present “independent” expert testimony establishing Khemsara’s violation of the
standard of care. As Khemsara acknowledges in his appellate brief, (Br. at 14), the
Board was not required to present expert testimony to support its charges against
Khemsara. See, e.g., Lies v. Ohio Veterinary Med. Bd., 2 Ohio App.3d 204, 211-212,
441 N.E.2d 584 (1st Dist.) (expert testimony about reasonable standards of
veterinary practice not mandatory in disciplinary proceedings before the state
veterinary medical board). The purpose of expert testimony is generally to assist a
factfinder in understanding issues that require scientific or specialized knowledge
or experience beyond common knowledge and experience. The majority of the
Board here were veterinarians. As such, they possessed the specialized knowledge
necessary to determine the standard of veterinary medical care and were able to rely
on their own knowledge and experience in determining whether Khemsara’s
conduct fell below that minimum standard of care. See, e.g., In re Griffith, 66 Ohio
App.3d 658, 663-664, 585 N.E.2d 937 (10th Dist.); cf. Pons, 66 Ohio St.3d at 623,
614 N.E.2d 748, citing In re Williams, 60 Ohio St.3d 85, 87, 573 N.E.2d 638 (1991),
and Arlen v. State, 61 Ohio St.2d 168, 173, 399 N.E.2d 1251 (1980).
In this case, the record reflects that the Board provided sufficient
information to Khemsara to enable him to effectively and meaningfully respond to
the charges presented against him. As detailed above, the Board served Khemsara
with a notice of opportunity for hearing that apprised him of the charges against
him, his right to an administrative hearing and his right to have an attorney
represent him at that hearing. Khemsara retained and was represented by counsel
throughout the administrative process. The record reflects that all the documentary
evidence the Board and its witnesses reviewed and relied upon related to the charges
against Khemsara was made available to Khemsara prior to the hearing. The Board
provided Khemsara with copies of its case file, including Petras’ complaint and the
medical records and narrative it had received from Price. At the hearing, Khemsara
had the opportunity to offer witness testimony and other evidence on his behalf, to
make arguments on his behalf, to testify on his behalf and to cross-examine the
witnesses presented by the Board.
Based on the record before us, Khemsara has not shown that the
common pleas court erred in determining that his due process rights were not
violated. Khemsara’s first assignment of error is overruled.
Determination that Reliable, Probative and Substantial Evidence
Supports the Board’s Decision
In his second assignment of error, Khemsara argues that the common
pleas court erred and abused its discretion in determining that the Board’s decision
to revoke Khemsara’s license to practice veterinary medicine was supported by
“reliable, probative and substantial evidence.”
R.C. 4741.22(A)(1) states, in relevant part:
The state veterinary medical licensing board may * * * revoke the
license * * * of * * * any person holding a license * * * to practice
veterinary medicine * * * who * * * [i]n the conduct of the person’s
practice does not conform to the rules of the board or the standards of
the profession governing proper, humane, sanitary, and hygienic
methods to be used in the care and treatment of animals.
Ohio Adm.Code 4741-1-10 states:
The board shall, pursuant to section 4741.22 of the Revised Code and
to the extent permitted by law, take action against the license of any
veterinarian or the registration of a veterinary technician for a
departure from, or the failure to conform to, minimal standards of care
of similar practitioners under the same or similar circumstances,
whether or not actual injury to the patient is established.
The Board revoked Khemsara’s license to practice veterinary
medicine because it found that Khemsara had provided “inappropriate medical
therapy in face of the differential diagnosis and the poor prognosis which
contributed to the demise of the cat” and due to the “multitude of previous violations
and disciplinary action” against Khemsara.
The common pleas court, finding reliable, probative and substantial
evidence existed in the record to support the Board’s decision, upheld the Board’s
adjudication order.
Khemsara argues that the Board’s decision was not supported by
reliable, probative and substantial evidence and that the common pleas court,
therefore, erred and abused its discretion in affirming the Board’s adjudication
order because: (1) Khemsara provides an “important service to the community[,]
including a walk-in clinic * * * that helps lower income individuals and their pets,”
which was ignored by the Board and the common pleas court; (2) Stir lacked the
expertise to opine regarding the standard of care owed by Khemsara, had never
personally spoken with Khemsara, Petras or Price and did not have “first-hand
personal knowledge of the presentation, examination, diagnosis, and treatment of
the cat” and (3) the common pleas court “improperly focused” on certain aspects of
Stir’s and Riker-Brown’s testimony regarding what Khemsara did or should have
done differently in treating Blago.
Although we agree that Stir, a nurse and attorney who had no
education or training in veterinary medicine, lacked the expertise to render a proper
expert opinion regarding the standard of care Khemsara provided to Blago, her
testimony was not the only evidence presented at the hearing.
As detailed above, Blago’s medical records, the testimony of Riker-
Brown, Khemsara’s testimony (including his responses to questions by the Board
chair as she sought to clarify why Khemsara made certain choices and failed to make
others when seeking to diagnose and treat Blago) and the evidence of prior
disciplinary action for medical records violations, standard of care violations and
practicing while under suspension also supported the common pleas court’s
determination that reliable, probative and substantial evidence existed in the record
to support the Board’s adjudication order.
Based on the record before us, we cannot say that common pleas court
acted arbitrarily, unreasonably or unconscionably or otherwise erred in affirming
the Board’s decision to revoke Khemsara’s license to practice veterinary medicine.
The common pleas court’s decision affirming the Board’s adjudication order was
detailed and well-reasoned. It is not our role to weigh the evidence or to substitute
our judgment for that of the Board and/or the common pleas court. Harrison v.
Ohio Veterinary Med. Licensing Bd., 10th Dist. Franklin No. 08AP-848, 2009-
Ohio-2856, ¶ 15, citing Pons, 66 Ohio St.3d at 621, 614 N.E.2d 748. Khemsara’s
second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Common
Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
ANITA LASTER MAYS, A.J., and
MARY J. BOYLE, J., CONCUR