Banker v. State Med. Bd.

[Cite as Banker v. State Med. Bd., 2024-Ohio-6009.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Wade L. Banker, M.D., :

Appellant, :

No. 23AP-614

v. : (C.P.C. No. 23CV-3053)

State Medical Board of Ohio, : (REGULAR CALENDAR)

Appellee. :

D E C I S I O N

Rendered on December 26, 2024

On brief: Dinsmore & Sholl, LLP, and Gregory A. Tapocsi,

LaTawnda N. Moore, and Eric J. Plinke, for appellant.

Argued: Eric J. Plinke.

On brief: Dave Yost, Attorney General, and Kyle C. Wilcox,

Melinda R. Snyder, and James T. Wakley, for appellee.

Argued: Kyle C. Wilcox.

APPEAL from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.

{¶ 1} Appellant, Wade D. Banker, M.D., appeals the judgment of the Franklin

County Court of Common Pleas, affirming the order of the State Medical Board of Ohio

(“the Board”) that permanently revoked Banker’s license to practice medicine in Ohio.

Banker argues that the trial court erred by affirming the Board’s order based on charges

that were not included in his notice of opportunity for hearing, and by permitting the Board

to “wrongful[ly] conver[t] * * * an expert’s insufficient written report” into affirmative

evidence of disciplinary violations. (Brief of Appellant at 9.)

{¶ 2} On December 9, 2020, the Board sent certified mail notice to Banker that it

proposed to act against his license based on inadequate and inappropriate prescribing,

failure to provide appropriate treatment, and having inadequate documentation. The

No. 23AP-614 2

notice described allegations regarding 15 different patients treated by Banker between June

2014 and May 2018, all of whom were treated with either surgical cosmetic procedures or

hormone replacement therapies. In particular, the Board’s notice of hearing described

allegations including lack of proper documentation of diagnosis and treatment, improper

diagnosis and treatment, and incorrect and unwarranted prescription of hormone

therapies to 9 separate patients, and inappropriate documentation of aesthetic surgical

procedures, inappropriate management of conditions, and inappropriate aesthetic surgical

care to 6 other patients. (Record of Proceedings, State’s Ex. 23a; Decision and Jgmt. Entry

Affirming the Order of the State Med. Bd. at 1.)

{¶ 3} Banker had become a board-certified radiologist in 2002, and practiced that

specific specialty until 2014, when he decided to open a private aesthetic practice. The

allegations against Banker were that he provided inappropriate monitoring of his patients’

conditions, that he inappropriately or inadequately monitored his patients’ medications,

that he failed to provide appropriate care and treatment to his patients, that he

inappropriately prescribed medications to patients, that he maintained inadequate and/or

incomplete documentation regarding his patients, and that he departed from the “minimal

standards of care of similar practitioners under the same or similar circumstances.” R.C.

4731.22(B)(6).

{¶ 4} The administrative hearing on the charges against Banker lasted six days, and

the record of the hearing comprises over one thousand transcript pages. In July 2022, the

Board’s hearing officer issued a 158-page report and recommendation, including detailed

factfinding and specific citations to the hearing transcript. (See generally Notice of Appeal,

Ex. A.) The hearing officer found: Banker practiced radiology and/or interventional

radiology from 2001 until 2014 (id. at ¶ 16); Banker has never been board-certified in

surgery, endocrinology, or any other field except radiology (id. at ¶ 17); since 2015, he has

had no affiliation with any hospitals or medical schools (id. at ¶ 14); he spent about

$1 million to start his new aesthetics practice, which included about $250,000 to purchase

a “smart liposuction” machine (id. at ¶ 18, 20); he had never performed liposuction before

purchasing the machine and had learned how to use the machine at a 2-day course in

February 2014 (id. at ¶ 22, 24); he learned to do local anesthesia breast augmentations

during a “three or four-day weekend” in November 2014 (id. at ¶ 29); and he had no other

No. 23AP-614 3

training in such surgeries before he began offering “awake breast augmentations” at his

clinic in 2016 (id. at ¶ 31). In 2021, he took a 2-day “awake ‘tummy tuck’ ” course and began

performing those procedures, as well. Id. at ¶ 36.

{¶ 5} Banker also began offering hormone replacement therapy (“HRT”) to both

men and women in 2016. Id. at ¶ 37. He had no formal training in endocrinology beyond

his medical school courses but went to a training center for HRT for one “very long day” in

February 2016, where he reviewed the history of HRT, read journal articles, and was trained

in dosing. Id. at ¶ 40.

{¶ 6} Banker admitted that some of his prescriptions to his HRT patients were

against the Board’s rules, specifically that he inappropriately prescribed phentermine for

four of the patients in this case, and he stated that while he “did not know the rules at that

time” (id. at ¶ 53), “ ‘no harm was done, the patients did well, [and] they were all happy

with their treatment.’ ” (Id., quoting July 18, 2022 Tr. Vol. I at 139.) He also admitted that

his documentation in all 15 cases in the citation, for both the surgical and the HRT patients,

was “inadequate.” Id. at ¶ 55. Although Banker denied his prescriptions of controlled

weight loss drugs and testosterone to weight loss patients was below the standard of care,

it is a violation of R.C. 4731.22(B)(2) and the Board’s rules to prescribe some of these

substances for weight loss, and Banker did admit this. Id. at ¶ 51.

{¶ 7} The hearing officer ultimately determined that:

Patient 10 treated * * * regarding complaints related to facial

aging. * * * [was] provided laser treatment and possibly

liposuction of the neck * * *. Following the treatment, the

patient was seen by another health care provider * * * and was

sent to the emergency room where she was treated for a third

degree burn of her neck. * * * [Dr. Banker] * * * failed to

document the burn in the chart.

Patient 13 * * * [was provided] a breast augmentation with

silicone implants under local anesthesia. The first surgery was

* * * aborted due to patient loss of consciousness and

desaturation. The patient received mouth-to-mouth

resuscitation during the desaturation. The patient also had a

second procedure that was aborted due to possible lidocaine

toxicity. The documentation was unclear as to whether the

surgery was completed, and * * * Dr. Banker further failed to

appropriately follow the patient post-operatively.

Patient 14 treated * * * [for] a breast augmentation revision to

remove saline implants and replace them with silicone

No. 23AP-614 4

implants under local anesthesia. The documentation in the

chart was unclear about the patient’s past medical history and

other pertinent medical issues, including any previous

mammograms or history of breast cancer in the family. While

the pictures show a deformity around the areola, that was not

appropriately documented in the chart, and it is unclear if the

deformity existed before the surgery, since the pictures in the

chart are not dated.

Patient 1 treated * * * for complaints apparently related to

hypogonadism and being overweight. In January 2017, the

laboratory tests showed a low normal testosterone level of an

unclear clinical significance, [but] the patient was given

testosterone pellets. * * * Dr. Banker’s office notes were

inadequate, as no past medical history was recorded and he

failed to perform, and/or document performing, an

appropriate physical examination. Dr. Banker also failed to

appropriately establish a diagnosis of hypogonadism, and he

further failed to have sufficient testing conducted in order to

establish an appropriate diagnosis and the cause of any

symptoms or complaints. * * * [G]iven Dr. Banker’s failure to

appropriately establish a diagnosis, the use of the medications

was not clinically indicated.

Patient 2 was treated for complaints apparently related to

obesity and hypogonadism. When the patient was first seen

* * *, Dr. Banker prescribed phentermine, but there was no

formal note of a history, review of symptoms, recording of vital

signs or physical examination. * * * Dr. Banker failed to do a

formal workup to determine causes for obesity, and failed to

monitor the side effects from phentermine. * * * Blood work

done in June 2016 showed normal testosterone and normal

estradiol levels, although the patient’s symptoms remained the

same. Dr. Banker’s treatment for obesity and hypogonadism

was based on incomplete information to establish appropriate

diagnoses. * * * The overall documentation was incomplete,

and given Dr. Banker’s failure to appropriately establish

diagnoses, the use of the medications was not clinically

indicated.

Although there was inadequate documentation, Dr. Banker

determined that [Patient 9] was a good patient for hormone

replacement therapy (HRT) and prescribed testosterone

pellets with anastrozole. During the patient’s first office visit on

or about June 21, 2016, Dr. Banker failed to document a history

of present symptoms, past medical history, a review of

symptoms, vital signs, or a physical exam. Sermorelin was

added on or about June 8, 2017, and the patient remained on

testosterone pellets until on or about October 20, 2017 when he

No. 23AP-614 5

was started on testosterone cypionate injections, 200 mg

weekly.

The patient’s testosterone levels were measured on or about

July 20, 2016 and were elevated. They continued to increase,

and the levels were greatly elevated when measured on or about

November 22, 2016. Dr. Banker failed to appropriately monitor

the treatment or medications. The diagnosis of hypogonadism

and subsequent treatment with HRT was inadequate, as the

documentation in the chart indicated that it was based on

clinical symptoms alone. In addition, the overall

documentation was incomplete, and the use of the medications

for unproven conditions was not appropriate.

Id. at 143, 146-48.

Based on the foregoing and other findings in the 158-page report and recommendation,

the hearing officer recommended that Banker’s license be indefinitely suspended with an

opportunity to seek reinstatement on conditions, along with a 2-year probationary term on

reinstatement. (See generally May 22, 2023 Notice of Appeal, Ex. A.)

{¶ 8} But when reviewing the recommendations and the proposed discipline, and

following personal testimony by Banker to the Board, the Board amended the sanction

recommendation to state that Banker’s license should be permanently revoked. Id. at 3. In

justifying his own decision to reject the recommended sanction in favor of revocation,

Board member Dr. Jonathan Feibel stated that:

[T]his is one of the more egregious cases he has seen since

joining the Board. It is not just one incident, but the totality of

facts that worries Dr. Feibel, including the prescribing of

controlled substances without following Board rules, lack of

record-keeping, lack of documentation of complications, and

performing procedures that Dr. Banker is not trained to do.

Dr. Feibel stated that the public should not expect that from

Ohio’s physicians. The fact that Dr. Banker does not realize this

causes Dr. Feibel to feel very uncomfortable with his continued

practice. Dr. Feibel opined that a permanent limitation on

Dr. Banker’s license would not fix that fact that he does not

realize what he did in the areas of plastic surgery and hormone

replacement therapy (HRT) were wrong.

Dr. Feibel noted the arguments that Dr. Banker took a two-day

course in breast reconstruction and that he therefore should

not be held to the same standard of care as a plastic surgeon

who had trained for seven years. Dr. Banker had referred to

having been in a general surgery residency, but that was for a

very brief period of time and he is not well-trained in surgery.

No. 23AP-614 6

Dr. Banker has had major complications and patients have

suffered severe harm because he does not realize his

limitations. Dr. Feibel commented that the pictures in the

hearing record were horrible. Dr. Feibel likened this to

someone claiming after a two-day course to be able to fix a

femur fracture, something Dr. Feibel, an orthopedic surgeon,

trained for five years to do.

(Apr. 12, 2023 State Med. Bd. of Ohio Meeting Minutes at 13.)

{¶ 9} The Board eventually voted 9-0-2 to “approve and confirm the Proposed

Findings of Fact, Conclusions of Law, and Proposed Order, as amended, in the matter of

Dr. Banker.” Id. at 17 (motion to amend proposed order to include permanent revocation

carried 8-1-2, with Dr. Michael Schottenstein dissenting and Drs. Mark Bechtel and Kim.

G. Rothermel abstaining). Banker’s license was therefore permanently revoked and a

$3,500 fine was imposed.

{¶ 10} Banker appealed to the Franklin County Court of Common Pleas, which

reviewed the record and Banker’s 5 assigned errors to the Board’s order. But the

fundamental question before the trial court was whether the Board was permitted, based

on the allegations made and the evidence admitted, to conclude that Banker was not

competent to treat the 15 patients and perform the aesthetic procedures described in the

notice. The trial court rejected all of Banker’s arguments and affirmed the Board’s decision.

{¶ 11} Banker now appeals to this court and asserts five assignments of error with

the trial court’s judgment:

[I.] The Common Pleas Court committed legal error by

affirming the Board’s Order that was founded upon charges or

reasons related to Dr. Banker’s education, training, and

experience which were not included in the Notice of

Opportunity for Hearing.

[II.] The Common Pleas Court committed legal error by

affirming the Board’s wrongful conversion with an expert’s

insufficient written report for procedural patients into

affirmative evidence of a disciplinary violation contrary to the

Supreme Court of Ohio’s Arlen and In re Williams decisions.

[III.] The Common Pleas Court abused of discretion in

affirming the Board’s Order in relation to procedural patients

because there is no evidence to support the Board’s findings of

disciplinary violations, except for documentation matters

which Dr. Banker readily admitted.

No. 23AP-614 7

[IV.] The Common Pleas Court committed legal error in

relation to hormone replacement therapy patients by affirming

the Board’s reliance upon the report and testimony of an expert

that was not in accordance with the mandates of R.C.

4731.22(B)(6).

[V.] The Common Pleas Court committed legal error by

affirming the Board’s Order based on the Court’s erroneous

conclusion that Dr. Banker admitted his prescribing of

hormone replacement therapy medications [to] patients fell

below minimum standards of care.

Moreover, in his reply brief, Banker asserts—for the first time in this case—an additional

assignment of error and argument:

Pursuant to the Supreme Court of Ohio’s holding in the TWISM

[Ents., L.L.C. v. State Bd. of Registration for Professional

Engineers & Surveyors, 172 Ohio St.3d 225, 2022-Ohio-4677]

decision, mandatory deference to the Board’s interpretation of

a statute or rule is improper.

(Appellant’s Reply Brief at 5.)

{¶ 12} We begin our analysis of Banker’s arguments by observing that when

reviewing an order from the Board, a trial court is required to affirm the order if it is

supported by reliable, probative, and substantial evidence, and is in accordance with law.

R.C. 119.12(M). See also Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1995). But

an appellate court’s review is even more limited than that of the trial court—it is not the

function of the appellate court to examine the evidence; rather, it is to determine only if the

trial court has abused its discretion, and absent an abuse of discretion on the part of the

trial court, a court of appeals may not substitute its judgment for that of either the Board or

the trial court, but must instead affirm the trial court’s judgment. Id. And in Pons, the

Supreme Court of Ohio held that “when 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.” Id.

The purpose of the General Assembly in providing for

administrative hearings in particular fields was to facilitate

such matters 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. * * * A medical disciplinary proceeding is a special

statutory proceeding conducted by twelve persons, eight of

whom are licensed physicians. R.C. 4731.01. Thus, a majority

No. 23AP-614 8

of the board members possess the specialized knowledge

needed to determine the acceptable standard of general

medical practice. Hence, the medical board is quite capable of

interpreting technical requirements of the medical field and

quite capable of determining when conduct falls below the

minimum standard of care.

(Emphasis added.) (Internal quotations and citations omitted.) Id. at 621-23.

{¶ 13} As noted in his reply memorandum, Banker asserts a new assignment of error

that, pursuant to TWISM Ents., L.L.C. v. State Bd. of Registration for Professional

Engineers & Surveyors, 172 Ohio St.3d 225, 2022-Ohio-4677, the Board’s “interpretation

of the ethical and legal requirements of the medical profession” is not entitled to deference,

and that the Board’s conclusion that he violated R.C. 4731.22(B)(6), which authorizes

discipline based on a “departure from, or a failure to conform to, minimal standards of care

of similar practitioners under the same or similar circumstances,” is incorrect. (Appellant’s

Reply Memo at 5.)

{¶ 14} This error is not properly before us pursuant to the Rules of Appellate

Procedure, see, e.g., Cullinan v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 15AP-

390, 2016-Ohio-1083, ¶ 19, citing App.R. 16(C), but at any rate, it wholly lacks merit.

TWISM is without application in this case because the courts have never been instructed to

defer to the Board’s interpretation of the law. Rather, the deference given to the Board is

on the facts of the case, viewed in accordance with the special knowledge of the Board.

TWISM rejects deference to agency interpretations of statutes and rules as a matter of

separation of powers, because “[w]hen a court defers to an agency’s interpretation of the

law, it hands to the executive branch the judicial authority ‘to say what the law is.’ ” TWISM

at ¶ 34, quoting State v. Parker, 157 Ohio St.3d 460, 2019-Ohio-3848, ¶ 31. But here,

Banker has not complained that Board has misinterpreted a statute or rule—rather, he

complains that the Board should have no authority to determine whether the facts of his

case met the acceptable standards of medical practice. Compare id. with Pons at 621

(“[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.”). This

court has already rejected a similar attempt to shoehorn TWISM into an appeal from the

Board. See Yoonessi v. State Med. Bd. of Ohio, 10th Dist. No. 23AP-160, 2024-Ohio-169,

¶ 5 (“The trial court did not defer to the [Board] on its interpretation of the law, and TWISM

No. 23AP-614 9

does not reach so far as to restrict the [Board] from serving the precise function that the

legislature created it to serve.”). Banker’s essential argument here is that TWISM outlawed

all agency decision-making. Not so.

{¶ 15} Turning to Banker’s remaining, correctly presented assignments of error, we

observe that “this court has affirmed trial court decisions in several similar cases based

largely on the simple determination that the trial court did not abuse its discretion in

finding that [the Board’s] decisions were supported by reliable, probative, and substantial

evidence.” Id. at ¶ 10. The same principle applies here.

{¶ 16} As to Banker’s first assignment of error, the mere fact that the Board relied

on very limited training for the procedures he performed does not create a violation of his

R.C. 119.07 notice right to procedural due process. As we have observed, “due process is

not violated unless the individual is actually disciplined for activities not mentioned in the

hearing notice[, and] ‘due process does not preclude a disciplinary body from considering

uncharged misconduct in determining a suitable sanction.’ ” White v. State Med. Bd. of

Ohio, 10th Dist. No. 23AP-587, 2024-Ohio-1553, ¶ 21, quoting Macheret v. State Med. Bd.

of Ohio, 10th Dist. No. 09AP-848, 2010-Ohio-3483, ¶ 27. Banker was disciplined for his

improper treatment of patients and his lack of required documentation regarding that

treatment, and the Board’s notice of his right to hearing amply describes the situations in

which these concerns arose. (Record of Proceedings, State’s Ex. 23a; Decision and Jgmt.

Entry Affirming the Order of the State Med. Bd. at 1.) The court rejected this precise

argument on very similar facts in De Bourbon v. State Med. Bd. of Ohio, 10th Dist. No.

17AP-769, 2018-Ohio-4682, ¶ 38:

We disagree that the board’s statement regarding appellant

practicing outside his area of expertise and training necessarily

required it to formally allege a violation in this respect. Initially,

this paragraph expresses the board’s general view of the case

and is not a basis for any particular finding, although it was

included under the sanction section. Notwithstanding,

appellant fails to direct us to any authority for the proposition

that the board cannot comment on issues or facts that touch on

or relate to violations on which the board took no action. That

the board decided not to take action on a violation of Ohio

Adm.Code 4731-25-03 does not mean the board could not

discuss evidence or draw conclusions related to the same

subject matter included in that section. The nature of the

board’s statement was not in the form of a formal allegation but

No. 23AP-614 10

was a conclusion based on the evidence adduced to prove the

charged violations. Indeed, appellant testified as to his

training, experience, and credentials at the hearing, and we see

no reason why the board could not use this testimony to draw

related conclusions. Therefore, we find this argument without

merit and overrule appellant’s second assignment of error.

This analysis remains persuasive to us, and we see no reason to depart from it. Banker’s

first assignment of error is overruled.

{¶ 17} In Banker’s second assignment of error, he contends that the Board

“unlawfully converted its disagreement with [an expert’s] report into evidence to support

its Order * * * [because that] was the only evidence the Board had to support its Order.”

(Brief of Appellee at 26-27.) But as the state correctly observes, Banker stipulated to that

expert report and did not object to the report or the conclusions, and given that the entirety

of the evidence in the record also supports the Board’s order, we find Banker’s contentions

here puzzling at best. It seems that Banker is again simply attempting to challenge the Pons

rule that “the medical board is * * * capable of determining when conduct falls below the

minimum standard of care.” Yoonessi at ¶ 7. And while Banker may wish to make all

“standards of care” determinations into legal questions subject to de novo review, it is both

obvious and axiomatic that judges are not trained to understand medical care better than

doctors. Banker’s second assignment of error therefore lacks merit.

{¶ 18} Banker’s third assignment of error contends that there is no evidence upon

which the Board could rely to conclude that he violated the standards of care or

inappropriately prescribed medications. But this argument relies upon Banker’s own

unclean hands—the very reason that there is not much evidence regarding the standard of

his patients’ care is because his patient documentation was inadequate, just as alleged in

the notice and as Banker essentially admitted at his hearing. It was not an abuse of

discretion for the trial court to permit the Board to draw an adverse inference from Banker’s

own lack of evidence of a diagnosis to support the treatment he provided. This assignment

of error lacks merit.

{¶ 19} Banker’s fourth assignment of error relates to the “HRT patients,” and argues

that he was not subject to the same minimal standard of care as an endocrinologist when

prescribing HRT because the expert witness here was an endocrinologist and Banker is not,

and that he is therefore not a “similar practitioner[] under the same or similar

No. 23AP-614 11

circumstances.” R.C. 4731.22(B)(6). We disagree. We believe the state’s response, that

“once [Dr. Banker] elected to practice [in the areas of HRT and] endocrinology, he became

an endocrinologist – just a very poor one,” to be a better statement of how this law works.

(Brief of Appellee at 17.) Banker’s own voluntary choice to practice with his limited training

cannot provide him an excuse to treat patients below the minimum standard of care. See

De Bourbon at ¶ 37-38 (death of patient during office-based liposuction violated minimal

standard of care, and was a “textbook example of what can happen when a physician

practices outside his own specialty area without having adequate training and experience

and does not know his own limitations”).

{¶ 20} Banker’s fifth assignment of error contends that the trial court erred by

“affirming the Board’s Order based on the Court’s erroneous conclusion that Dr. Banker

admitted” that his prescribing to the HRT patients was below the minimum standard of

care. The challenged statement is as follows:

With regard to the sufficiency of evidence supporting the

Board’s Order, it is also important to note that Dr. Banker

himself admitted that his prescribing of medications to the

HRT patients was in violation of Board rules and below

minimal standards of care. * * * As set forth in detail above,

Dr. Banker’s expert, Dr. [Nosson] Goldfarb, likewise conceded

that there were standard of care violations in treatment of the

HRT patients.

(Emphasis added.) (Decision and Jgmt. Entry Affirming the Order of the State Med. Bd. at

11.) But as the record reveals, Banker did in fact admit that he prescribed phentermine for

four of the patients described in this case, that he was “out of line” in making those

prescriptions, and that he did not know the Board’s rules at the time he issued those

prescriptions. (Record of Proceedings at 140; Notice of Appeal, Ex. A at ¶ 51-53.) Banker

has therefore misinterpreted the trial court’s statement. Banker’s “prescribing of

medications to the HRT patients” was a violation of the standard of care, insofar as he

misprescribed medications to four of the nine HRT patients, and admitted that at least

some of these prescriptions were against the Board’s prescribing rules. (Decision and Jgmt.

Entry Affirming the Order of the State Med. Bd. at 11.) Although it is true that Banker did

not admit misprescribing medications to all of the HRT patients, based on the record, we

cannot say that the trial court’s statement is even erroneous, let alone an abuse of that

court’s discretion.

No. 23AP-614 12

{¶ 21} For the foregoing reasons, Banker’s five assignments of error are overruled

and the judgment of the Franklin County Court of Common Pleas is accordingly affirmed.

Judgment affirmed.

MENTEL, P.J., and LELAND, J., concur.