State Med. Bd. of Ohio v. Murray

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State Medical Board of Ohio, Appellant and Cross-Appellee, v.

Murray, Appellee and Cross-Appellant.

[Cite as State Med. Bd. of Ohio v. Murray (1993), Ohio

St.3d .]

Administrative procedure -- Procedure for adoption, amendment or

rescission of rules -- R.C. 119.03(E), applied.

Pursuant to R.C. 119.03(E), an agency must inform those affected

by the adoption of a rule prior to its effective date by

means which are reasonably calculated to inform such

individuals, but the agency is not required to give public

notice of the rule's adoption.

(No. 92-557 -- Submitted March 10, 1993 -- Decided June 23,

1993.)

Appeal from the Court of Appeals for Franklin County, No.

91AP-519.

By letter dated February 8, 1989, appellee and cross-

appellant, Richard D. Murray, M.D., a plastic and reconstructive

surgeon ("Murray"), was notified that appellant and

cross-appellee, State Medical Board of Ohio ("the board"),

intended to determine what type of disciplinary action should be

taken against him for violations of Ohio Adm.Code 4731-11-05 and

R.C. 4731.22(B)(2), (3), and (6). The board's letter stated that

during the period beginning January 1982, and continuing until at

least October 1988, Murray "* * * prescribed and/or administered

androgens and/or anabolic steroids to patients * * * for purposes

of enhancing the patients' athletic ability and not for medical

purposes." The board further alleged that Murray failed to use

reasonable care discrimination in the administration of drugs;

sold, prescribed, gave away, or administered drugs for other than

legal or legitimate therapeutic purposes; and departed from or

failed to conform to, minimal standards of care for similar

practitioners under the same or similar circumstances regardless

of whether actual injury to a patient had been established.

Pursuant to Murray's request, a hearing on the matter was

held August 14, 1989. Based on the evidence presented to her,

the board's hearing examiner prepared a written report, including

findings of fact and conclusions of law, concluding that Murray

violated Ohio Adm.Code 4731-11-05 and R.C. 4731.22(B)(2), (3),

and (6). The examiner recommended that Murray's certificate to

practice medicine and surgery be revoked.

On October 11, 1989, after considering the hearing

examiner's report and recommendation, and Murray's written

objections, the board adopted the report and recommendation. On

October 13, 1989, the board entered an order revoking Murray's

certificate to practice medicine and surgery in Ohio. From this

decision, Murray filed a notice of appeal in the Franklin County

Court of Common Pleas.

On April 25, 1991, the court of common pleas affirmed the

board's order. On May 2, 1991, Murray filed a notice of appeal

in the Franklin County Court of Appeals.

On January 17, 1992, the court of appeals reversed the

judgment of the court of common pleas, holding that the board

failed to comply with R.C. 119.03(E) in adopting Ohio Adm.Code

4731-11-05, thereby invalidating that rule, and found that the

board's determination that Murray violated Ohio Adm.Code

4731-11-05 was not supported by reliable, probative, and

substantial evidence. Without discussion, the court summarily

overruled six of Murray's other seven assignments of error,

determining that because Ohio Adm.Code 4731-11-05 was invalid,

there was no basis for filing a disciplinary action against

Murray and that further board actions based on the invalid rule

were harmless errors. The court of appeals also overruled

Murray's argument that R.C. 119.12 is unconstitutional.

The cause is now before this court pursuant to the allowance

of a motion and cross-motion to certify the record.

Lee I. Fisher, Attorney General, and Odella Lampkin,

Assistant Attorney General, for appellant and cross-appellee.

Pfau, Pfau & Pfau and William E. Pfau III, for appellee and

cross-appellant.

Alice Robie Resnick, J. The instant case involves an appeal

and cross-appeal that propound two separate but interrelated

questions for our consideration. First, we are asked to decide

whether the court of appeals was correct in holding that Ohio

Adm.Code 4731-11-05 was invalid. In determining the

cross-appeal, we are asked to decide whether the evidence

presented established violations of R.C. 4731.22(B)(2), (3), and

(6),1 and/or Ohio Adm.Code 4731-11-05.2

Finding Ohio Adm.Code 4731-11-05 invalid, the court of

appeals held that the board failed to give reasonable notice of

the adoption of the rule prior to its February 1, 1988 effective

date. The court concluded that such failure invalidated the rule

pursuant to R.C. 119.02.3

Procedures for the adoption, amendment, or rescission of

agency rules are set forth in R.C. 119.03. Of particular

importance in this case are R.C. 119.03(A), (C), (D), and (E).

In relevant part, R.C. 119.03(A) provides that an agency

must give "[r]easonable public notice" at least thirty days in

advance of the date set for a public hearing on the proposed

rule. The notice must include: "(1) A statement of the

agency's intention to consider adopting, amending, or rescinding

a rule; (2) A synopsis of the proposed rule, amendment, or rule

to be rescinded or a general statement of the subject matter to

which the proposed rule, amendment, or rescission relates; (3) A

statement of the reason or purpose for adopting, amending, or

rescinding the rule; (4) The date, time, and place of a hearing

on the proposed action, which shall be not earlier than thirty

nor later than fifty days after the proposed rule, amendment or

rescission is filed under division (B) of this section. In

addition to public notice, the agency may give whatever other

notice it considers necessary. * * *"

In accordance with the directive of R.C. 119.03(A)(4), the

board promulgated Ohio Adm.Code 4731-2-01. Ohio Adm.Code

4731-2-01(A) provides that public notice shall be given by

advertising in one generally circulated newspaper in the cities

of Akron, Cleveland, Columbus, Cincinnati, Dayton, Toledo, and

Youngstown. Subparagraph (B) of this rule also requires that the

board maintain a list of persons who have previously requested

copies of its public notices and that copies of the notices be

mailed to all such persons and to anyone else requesting copies

thereof.

It is undisputed that the board complied with the prehearing

public notice requirements of R.C. 119.03(A). Of importance in

this case, the notice was mailed to the Mahoning County Medical

Society of which Murray is a member and was published in Murray's

local newspaper, the Youngstown Vindicator.

In accordance with R.C. 119.03(C) a public hearing was

conducted December 2, 1987. R.C. 119.03(C) provides that " * * *

any person affected by the proposed action of the agency may

appear and be heard * * * [and] may present his positions

arguments, or contentions, orally or in writing, * * * and

present evidence tending to show that the proposed rule, * * * if

adopted * * *, will be unreasonable or unlawful." A transcript

of the public hearing indicates that several persons offered

opinions in support of the adoption of Ohio Adm.Code 4731-11-05.

Murray did not appear at the hearing nor was any material

submitted by Murray or on his behalf. At its regular January

1988 meeting, the board voted unanimously to adopt Ohio Adm.Code

4731-11-05 and set an effective date of February 1, 1988. See

R.C. 119.03(D).

The board's next step in the validation process is set forth

in R.C. 119.03(E) and Ohio Adm.Code 4731-2-02. R.C. 119.03(E)

provides: "Prior to the effective date of a rule, amendment, or

rescission, the agency shall make a reasonable effort to inform

those affected by the rule, amendment, or rescission and to have

available for distribution to those requesting it the full text

of the rule as adopted or as amended." (Emphasis added.) Ohio

Adm.Code 4731-2-02 is essentially identical to R.C. 119.03(E) and

further states: "The method of notification may include, but is

not limited to, mailing a notice of the action to all persons

whose name appears on the mailing list maintained by the board

pursuant to paragraph (B) of rule 4731-2-01 of the Administrative

Code, or to any person or his attorney who provided evidence,

oral testimony, and/or a written statement of his position,

arguments, or contentions concerning the proposed rule,

amendment, or rescission which were made part of the record of

the public hearing held pursuant to section 119.03 of the Revised

Code."

As set forth above, the board was required to make a

"reasonable effort" to inform those affected by the adoption of

the rule prior to its effective date. It is not disputed that

the board sent notice of the rule's adoption to the persons and

organizations on its mailing list, including the Youngstown

Vindicator and the Mahoning County Medical Society.

The court of appeals concluded that the board's actions, in

toto, did not constitute a "reasonable effort to inform * * *"

pursuant to R.C. 119.03(E). We disagree.

The appellate court correctly determined that as a matter of

interpretation, R.C. 119.03(E) should be read in pari materia

with the other sections of that statute. However, we are not

convinced that the court considered the board's compliance with

the other sections in making its determination that the board's

efforts under R.C. 119.03(E) were not sufficient.

We find it significant that a general statement of the

proposed rule's subject matter, i.e., "Use of Drugs to Enhance

Athletic Ability," was published in the Youngstown Vindicator on

October 29, 1987 under the heading "PUBLIC NOTICE." The

published notice further stated: "The PURPOSE of proposed Rule

OAC 4731-11-05 is to establish standards prohibiting the use of

anabolic steroids, growth hormones, testosterone or its analogs,

human chorionic gonadotropine (HCG), or other hormones for the

purpose of enhancing athletic ability."

Approximately thirty days after publication, a public

hearing was held during which the proposed rule, as published,

was discussed and analyzed. The hearing was, pursuant to R.C.

119.03(C), open to any person affected by the proposed action.

Subsequent to the hearing, the board adopted the rule and

announced its effective date. The only prevalidation condition

remaining was that prior to February 1, 1988, the board was

required to make a "reasonable effort to inform those affected by

the rule * * *" of its adoption. R.C. 119.03(E).

In the instant case, we find that the board's efforts to

inform those affected were "reasonable." In contrast to the

prehearing mandate set forth in R.C. 119.03(A)(1) and Ohio

Adm.Code 4731-2-01, the board was not required to give public

notice of the rule's adoption. Further, in contrast to the plain

language of Ohio Adm.Code 4731-2-01, there is no publication

requirement in R.C. 119.03(E). The board also provided its

licensees with the knowledge that its methods of notification

might "* * * include, but [are] not limited to, mailing a notice

of the action to all persons whose name appears on the mailing

list * * *" or who provided evidence at the public hearing. Ohio

Adm.Code 4731-2-02.

While we recognize that Murray's name is not on the board's

mailing list, we are also cognizant of the fact that notice of

the public hearing was published and Murray could have

participated in the adoption process and/or requested additional

information on the proposed rule. In addition, it is important

that as a board-certified physician and surgeon in the state of

Ohio, Murray's medical practice is governed by R.C. Chapter 4731

as well as the rules promulgated by the board in Ohio Adm.Code

Chapter 4731.

Quite simply, we are unwilling to analogize the behavior of

one who feigned ignorance or chose to be conveniently unaware of

a rule to that of someone who was genuinely uninformed due to

someone else's mistake or oversight. Notwithstanding any of

Murray's other arguments, e.g., shortly after the effective date,

he asked the board for a copy of the rule and allegedly never

received it and/or he received a copy of a board publication

containing the rule but did not see the relevant article, we find

that the board's efforts were reasonably calculated to inform

those affected by the rule's adoption; therefore, we reverse the

court of appeals in part and hold that Ohio Adm.Code 4731-11-05

is valid.

Murray has set forth six arguments in his cross-appeal.

First, he argues that the decision to revoke his license was not

supported by reliable, probative, and substantial evidence,

asserting that his practice of prescribing medications prior to

February 1, 1988 was in a legally permitted manner. Murray

further argues that there was no evidence supporting the board's

conclusion that his conduct was below acceptable standards.

Facts adduced at the hearing showed that at least as early

as 1982, Murray prescribed anabolic steriods, androgens, and HCG

to approximately two hundred patients solely for the purpose of

enhancing their athletic ability. Complete records for twenty of

Murray's patients were introduced into evidence. Testimony

regarding the records indicated that little or no medical

histories were obtained prior to Murray's prescribing anabolic

steroids. Murray stated that the lack of medical histories could

be explained by his practice of not recording a history unless

the patient reported past health problems. No laboratory tests

were obtained for any of the patients. The evidence also showed

that patients were not scheduled for follow-up appointments and

further revealed that, in 1985, Murray prescribed steriods to a

patient even though he had reason to suspect that the patient was

selling the drugs.

The results of a medical study introduced into evidence by

Murray indicated that some of the more serious health risks

associated with steroid usage were more likely to occur if the

usage continued for a period longer than six months. Certain of

the patient records showed that Murray repeatedly wrote

prescriptions allowing his patients' steriod use to continue for

periods of much longer than six months.

The standard of review for a decision of the board is set

forth in R.C. 119.12: "The court may affirm the order of the

agency * * * if it finds, upon consideration of the entire record

and such additional evidence as the court has admitted, that the

order is supported by reliable, probative, and substantial

evidence and is in accordance with law." Murray's argument

focuses on the establishment of an accepted standard of care

against which his practices could be evaluated. He asserts that

prior to the effective date of Ohio Adm.Code 4731-11-05, no

medical standards regarding steriod use existed; therefore, in

the absence of expert medical testimony, his alleged failure to

meet minimal standards of care was not supported by substantial,

probative evidence.

Murray also appears to ignore the fact that the board is

composed primarily of experienced health professionals. The

legislature and the courts of Ohio have delegated comprehensive

decision-making power to the board. Such power includes, but is

not limited to, the authority to rely on the board's own

knowledge when making a decision rather than looking to the

record for the opinion of an expert.

It is well established that "* * * expert testimony as to a

standard of practice is not mandatory in a license revocation

hearing and the board may rely on its own expertise to determine

whether a physician failed to conform to minimum standards of

care." Arlen v. State (1980), 61 Ohio St.2d 168, 172, 15 O.O.3d

190, 193, 399 N.E.2d 1251, 1254. "* * * [A] requirement [of]

expert testimony in the record of a license revocation proceeding

usurps the power of the State Medical Board's broad measure of

discretion. * * *" Id. at 174, 15 O.O.3d at 194, 399 N.E.2d at

1255.

Murray argues that Arlen is not applicable to this case

because it was decided prior to the employment of hearing

examiners. This argument is not pursuasive.

The record indicates that the board reviewed the evidence

presented at the hearing as well as the examiner's findings and

recommendations. Consequently, we find that it was the board's

decision, acting independently of the hearing examiner, to revoke

Murray's license. In reaching its decision, the board was aided

by a hearing transcript, exhibits, and the examiner's report.

The board applied its professional judgment to the material

presented and reached a conclusion fully supported by the

evidence.

In arguing the inapplicability of Arlen, Murray urges us to

follow In re Williams (1991), 60 Ohio St.3d 85, 573 N.E.2d 638.

We find Williams to be factually distinguishable from the case

before us. In Williams, the accused doctor presented expert

testimony that his decisions to prescribe controlled substances

in a weight control program were within accepted medical

standards. Id. at 87, 573 N.E.2d at 640. This court determined

that the board apparently disagreed with the doctor's expert and

"* * * convert[ed] its own disagreement * * * into affirmative

evidence of a contrary proposition where the issue is one on

which medical experts are divided and there is no statute or rule

governing the situation." Id. In contrast, Murray did not

present expert testimony supporting his contention that his

actions were within acceptable guidelines.

Murray attempts to convince this court that because the

standard of practice announced in Ohio Adm.Code 4731-11-05 did

not become effective until February 1, 1988, the board was

required under the law announced in Williams to present expert

testimony regarding the acceptable standard of care governing

activities prior to the rule's effective date. The Williams

opinion does not set forth such a requirement.

In Williams, this court stated: "While the board need not,

in every case, present expert testimony to support a charge

against an accused physician, the charge must be supported by

some reliable, probative and substantial evidence." Id. at 87,

573 N.E.2d at 640. The Williams court found that the board's

case failed due to a lack of evidence, not because the board

failed to present expert testimony. On the contrary, in its case

against Murray, the board presented an extensive compilation of

documentation, exhibits, and testimony that, in our opinion,

constituted reliable, probative and substantial evidence

supporting its charges. Accordingly, we find that the lack of

expert testimony regarding a standard of care does not in any way

preclude a conclusion that the board's findings were supported by

reliable, probative, and substantial evidence and that its order

is in accordance with law.

In his second argument, Murray asserts that the board

improperly precluded him from conducting depositions prior to

this hearing. By letter dated April 14, 1989, Murray requested

that the board issue three subpoenas duces tecum. The board

responded negatively to Murray's request, stating in a letter

dated May 4, 1989, that: "Neither Chapter 119. nor the Board's

procedures permit the taking of discovery depositions."

R.C. 119.09 provides comprehensive regulations for the

conduct of adjudication hearings. At the time of Murray's

hearing, this section provided, in relevant part: "For the

purpose of conducting any adjudication hearing required by

sections 119.01 to 119.13 of the Revised Code, the agency may

require the attendance of such witnesses and the production of

such books, records, and papers as it desires, and it may take

the depositions of witnesses residing within or without the state

in the same manner as is prescribed by law for the taking of

depositions in civil actions in the court of common pleas, and

for that purpose the agency may, and upon the request of any

party receiving notice of said hearing as required by section

119.07 of the Revised Code, shall, issue a subpoena for any

witness or a subpoena duces tecum to compel the production of any

books, records, or papers, directed to the sheriff of the county

where such witness resides or is found, which shall be served and

returned in the same matter as a subpoena in a criminal case is

served and returned. * * *"

In Ohio State Bd. of Pharmacy v. Frantz (1990), 51 Ohio

St.3d 143, 555 N.E.2d 630, paragraph one of the syllabus, this

court held: "The mandatory language of R.C. 119.09 pertains to

securing attendance of witnesses and production of books,

records, or papers at the request of a party for the purpose of

conducting an adjudication hearing; it does not provide for

prehearing discovery depositions by a party to an adjudication

hearing." Murray argues that Frantz is inapplicable because his

letter did not request "prehearing discovery depositions,"

asserting that he simply asked for "depositions."

Regardless of whether the depositions were described as

"prehearing discovery depositions" or "depositions," there is no

question but that they were to be conducted on May 8, 1989, prior

to the hearing. Clearly, any such depositions would have been

pre-hearing and, therefore, not permitted by R.C. Chapter 119.

Murray's third argument focuses on the confidentiality of

board records. Murray asserts that pursuant to his request for

the production of board records, the hearing examiner should have

viewed the records in camera and determined which portions were

confidential or subject to the physician-patient privilege.

The board's power to investigate evidence that suggests a

violation of R.C. Chapter 4731 or a board rule is found in R.C.

4731.22(C)(1). In relevant part, R.C. 4731.22(C)(1) provides:

"Information received by the board pursuant to an investigation

shall be confidential and not subject to discovery in a civil

action."

Murray asserts that notwithstanding this clear legislative

directive, the hearing examiner and/or the common pleas court

should have viewed the board's evidence in camera and released to

Murray that which was not confidential. We find such an argument

to directly contravene the statute, i.e., information received by

the board during an investigation is confidential.

Murray also argues that the phrase "* * * and not subject to

discovery in any civil action * * *," as used in R.C.

4731.22(C)(1), is merely a definition or an explanation of the

word "confidential." On the contrary, we find that the phrase

depicts a separate and distinct characteristic of the information

received by the board. In other words, such information is to be

kept confidential at all times and is not, under any

circumstances, including the issuance of a protective order,

discoverable in a civil action.

Murray's fourth argument focuses on his motion to orally

address the board. Murray asserts that he was misadvised by the

board in its September 14, 1989 letter and was not aware that the

examiner's report would be considered at the board's meeting on

October 11-12, 1989.

The board's September 14, 1989 letter to Murray stated that

any written objections to the report filed by Murray would "* * *

be considered by the State Medical Board at its October 11-12,

1989 meeting, before approving, modifying, or disapproving the

Recommendation."

The letter also stated: "No oral presentation will be

permitted at the time the Board considers the Report and

Recommendation except for purposes of addressing matters which

could not have been presented at hearing or in written

objections. Motions to orally address the Board must be made in

writing within ten (10) days of receipt of the Report and

Recommendation, and must explain why such matters would not have

been previously addressed. The Office of the Attorney General

will be permitted to respond to any oral presentation."

The minutes of the October 11, 1989 meeting indicate that

the board members were advised that Murray had submitted a motion

to orally address the board. The Chair asked for a motion to

approve Murray's request; however, at that time, the board was

advised that neither Murray nor his attorney was present.

Accordingly, Murray's request to address the board became moot.

We find Murray's arguments opposing well-established board

procedures to be without merit. The board's September 14, 1989

letter clearly advised Murray that the examiner's recommendation

would be considered at the October 11-12, 1989 meeting along with

any objections thereto. The board fulfilled its statutory

obligations to Murray. He was informed of his option to request

an opportunity to address the board. The September 14, 1989

letter was complete with a telephone number for the board, an

address, and was signed by a case control officer. Any further

communication regarding the meeting was Murray's responsibility.

His failure to determine the time and/or location of the meeting

does not constitute grounds for invalidating the board's approval

of the examiner's recommendation.

In his fifth argument, Murray asserts that he should have

been allowed to cross-examine the attorney hearing examiner for

the purpose of obtaining evidence that would have proved that the

examiner was not competent to determine the appropriate standard

of care to be applied in this case.

The attorney hearing examiner was designated by the board

pursuant to R.C. 4731.23, R.C. Chapter 119, and Ohio Adm.Code

Chapter 4731-13. The examiner is delegated by the board "* * *

to conduct any hearing which the medical board is empowered to

hold or undertake pursuant to Chapter 119. of the Revised Code.

Such hearing examiner shall hear and consider the oral and

documented evidence introduced by the parties and issue in

writing proposed findings of fact and conclusions of law to the

board for their consideration within thirty days following the

close of the hearing." R.C. 4731.23(A). The authority and

duties of the examiner are fully set forth in Ohio Adm.Code

4731-13-03. Such duties clearly establish that the examiner is a

trier of fact and not a party to the adjudicatory process.

In accordance with R.C. 119.12, the common pleas court was

"* * * confined to the record as certified to it by the agency."

Further, "[u]nless otherwise provided by law, the court may grant

a request for the admission of additional evidence when satisfied

that such additional evidence is newly discovered and could not

with reasonable diligence have been ascertained prior to the

hearing before the agency." Id. Based on the mandate of Ohio

Adm.Code 4731-13-23(D), the record transmitted to the common

pleas court could not have contained evidence obtained by

cross-examining the hearing examiner. This section provides:

"The presiding attorney hearing examiner, because of his duties,

shall not be a competent witness nor subject to deposition in any

adjudication proceeding. Unless the testimony of a board member

or an attorney hearing examiner is material to the factual

allegations set forth in the notice of opportunity for hearing,

board members and an attorney hearing examiner shall not be

competent witnesses nor subject to deposition in any adjudication

proceeding. Evidence from other persons relating to the mental

processes of the presiding attorney hearing examiner or board

members shall not be admissible." Further, the only additional

evidence that is admissible at the common pleas level is evidence

that is newly discovered and not reasonably ascertainable prior

to the adjudication hearing. Quite clearly, there is no

provision in the law for the admissibility of evidence concerning

the attorney hearing examiner's level of expertise regarding the

appropriate standard of care.

In his final argument, Murray asserts that the board's

decision to revoke his license to practice medicine and surgery

was arbitrary and unreasonable. Pursuant to R.C. 4731.22, the

board may, upon finding certain specified circumstances, revoke

or suspend a certificate. Such decision may be affirmed by the

court if it finds that the order is supported by reliable,

probative, and substantial evidence and is in accordance with

law. R.C. 119.12.

As previously set forth, we hold that the board's order was

supported by reliable, probative, and substantial evidence. We

further find that the penalty imposed by the board was in

accordance with law and, therefore, such order will not be

reversed or modified.

For the reasons set forth above, the judgment of the court

of appeals is affirmed as to its ruling on the arguments set

forth in the cross-appeal and reversed as to its holding on the

validity of Ohio Adm.Code 4731-11-05; accordingly, the judgment

of the common pleas court is reinstated.

Judgment accordingly.

Moyer, C.J., A.W. Sweeney, Douglas, Wright and F.E. Sweeney,

JJ., concur.

Pfeifer, J., concurs separately.

FOOTNOTES:

1 R.C. 4731.22(B)(2), (3), and (6) provide: "The board * * *

shall * * * revoke, or suspend a certificate * * * for one or

more of the following reasons:

"* * *

"(2) Failure to use reasonable care discrimination in the

administration of drugs, or failure to employ acceptable

scientific methods in the selection of drugs or other modalities

for treatment of disease;

"(3) Selling, prescribing, giving away, or administering

drugs for other than legal and legitimate therapeutic purposes or

a plea of guilty to, or a judicial finding of guilt of, a

violation of any federal or state law regulating the possession,

distribution, or use of any drug;

"* * *

"(6) 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 a

patient is established[.]"

2 Ohio Adm.Code 4731-11-05 provides:

"(A) A physician shall not utilize anabolic steroids,

growth hormones, testosterone or its analogs, human chorionic

gonadotropin (HCG), or other hormones for the purpose of

enhancing athletic ability.

"(B) A physician shall complete and maintain patient

medical records which accurately reflect the utilization of any

substance described in this rule. Patient medical records shall

indicate the diagnosis and purpose for which the substance or

drug is utilized, and any additional information upon which the

diagnosis is based.

"(C) A violation of any provision of this rule, as

determined by the board, shall constitute 'failure to use

reasonable care discrimination in the administration of drugs,'

as that clause is used in division (B) (2) of section 4731.22 of

the Revised Code; and '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 a patient is established,' as that clause is used in

division (B)(6) of section 4731.22 of the Revised Code. A

violation of paragraph (A) of this rule shall further constitute

'selling, prescribing, giving away, or administering drugs for

other than legal and legitimate therapeutic purposes,' as that

clause is used in division (B)(3) of section 4731.22 of the

Revised Code."

3 R.C. 119.02 provides: "Every agency authorized by law to

adopt, amend, or rescind rules shall comply with the procedure

prescribed in sections 119.01 to 119.13, inclusive, of the

Revised Code, for the adoption, amendment, or rescission of

rules. Unless otherwise specifically provided by law, the failure

of any agency to comply with such procedure shall invalidate any

rule or amendment adopted, or the rescission of any rule."

Pfeifer, J., concurring. While there is an overwhelming

amount of evidence that Dr. Murray violated the standard of care

owed to his patients, I am concerned that the State Medical

Board has discretion under R.C. Chapter 119 to revoke or suspend

doctors' licenses through a trial by ambush. During my short

tenure on this court, I have seen repeated occasions where the

State Medical Board has attempted to provide accused doctors with

as little due process as possible by continuously denying

defendants' requests for information, interrogatories, and

depositions. On future occasions, I will be less likely to

uphold medical board decisions revoking or suspending licenses

when the accused doctor has not been permitted to conduct

elementary discovery procedures.

This court and the General Assembly should consider whether

administrative bodies, such as the State Medical Board, should be

permitted to deny discovery requests on a whim, or whether a more

exacting due process standard should be enacted.