Opinion

Shah v. State Med. Bd. of Ohio

  • 2014 Ohio 4067
Court
Ohio Court of Appeals
Filed
Sep 18, 2014
Status
Published
On the bench
Klatt
Cited by
6 cases
Authority
More cited than 62.7%

The opinion

[Cite as Shah v. State Med. Bd. of Ohio, 2014-Ohio-4067.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Mahendrakumar C. Shah, M.D., :

Appellant-Appellant, :

No. 14AP-147

v. : (C.P.C. No. 13CVF-10-11874)

State Medical Board of Ohio, : (ACCELERATED CALENDAR)

Appellee-Appellee. :

D E C I S I O N

Rendered on September 18, 2014

Graff & McGovern, LPA, and James M. McGovern, for

appellant.

Michael DeWine, Attorney General, Melinda R. Snyder, for

appellee.

APPEAL from the Franklin County Court of Common Pleas

KLATT, J.

{¶ 1} Appellant, Mahendrakumar C. Shah, M.D., appeals from a judgment of the

Franklin County Court of Common Pleas affirming a decision of appellee, the State

Medical Board of Ohio ("the Board"), to permanently revoke appellant's medical license.

For the following reasons, we affirm that judgment.

I. Factual and Procedural Background

{¶ 2} Appellant held a license to practice medicine in West Virginia since 1984.

In 2010, a complaint was filed against appellant with the West Virginia Board of Medicine

("West Virginia") alleging that he had engaged in sexual activity with his patients in

exchange for prescriptions in the course of his medical practice. West Virginia

investigated the allegations and concluded that appellant had prescribed multiple

No. 14AP-147 2

controlled substances over a period of time to some patients whose medical conditions

did not warrant the use of those controlled substances. The investigation also revealed

that appellant's patient records did not always justify his course of treatment. While the

investigation did not find evidence that appellant was exchanging prescriptions for sexual

favors, appellant did admit to the investigators that he engaged in sexual relations with

one of his patients.

{¶ 3} On September 10, 2012, West Virginia and appellant entered into a consent

order to resolve these allegations short of a hearing. In that order, West Virginia found

that probable cause existed to support multiple charges against appellant. They included:

(1) dishonorable, unethical, or unprofessional conduct of a character likely to deceive,

defraud, or harm the public, (2) exercising influence within the patient-physician

relationship for the purpose of engaging a patient in sexual activity, (3) prescribing a

prescription drug other than in good faith and in a therapeutic manner, (4) failing to keep

written records justifying the course of treatment, (5) failure to practice medicine with the

level of care, skill, and treatment recognized by a reasonable, prudent, similar physician,

and (6) dishonorable, unethical, or unprofessional conduct by prescribing controlled

substances in amounts that he knew or had reason to know were excessive. West Virginia

ordered appellant to surrender his medical license and his certificate to prescribe

controlled substances and also to close his medical practice. He was also prohibited from

ever applying for a medical license in the state again. Appellant signed the consent order

and agreed to surrender his license, thereby resolving the disciplinary action against him.

{¶ 4} Appellant also possessed a license to practice medicine in Ohio. As a result

of the disciplinary action taken by West Virginia, the Board notified appellant that it

intended to determine whether to take its own disciplinary action pursuant to R.C.

4731.22(B)(22), which allows the Board to sanction a physician's Ohio certificate to

practice if the physician's license in another state has been sanctioned by another state's

agency. Appellant requested and received a hearing on the matter.

{¶ 5} After the hearing, the hearing officer issued a report and recommendation

in which she concluded that the consent order constituted an action taken by an agency

responsible for authorizing, certifying, or regulating an individual to practice a health care

occupation or provide health care services in this state or another jurisdiction, pursuant to

No. 14AP-147 3

R.C. 4731.22(B)(22), thereby subjecting appellant to sanctions. The hearing officer

ultimately recommended the indefinite suspension of appellant's license for not less than

one year. She also recommended a permanent limitation on prescribing controlled

substances, conditions for reinstatement, and a two-year period of probation.

{¶ 6} The Board adopted the hearing officer's findings of fact and conclusions of

law, but amended her recommended sanction to permanently revoke appellant's medical

license. Appellant appealed to the trial court, which affirmed the Board's decision.

II. Appellant's Appeal

{¶ 7} Appellant appeals to this court and assigns the following errors:

[I.] The Franklin County Court of Common Pleas erred and

abused its discretion when it found that the procedure the

State Medical Board of Ohio followed and the basis the Board

offered for amending the Hearing Examiner's Proposed Order

and adopting the Order permanently revoking Dr. Shah's

Ohio medical license was supported by reliable, probative and

substantial evidence.

[II.] The Franklin County Court of Common Pleas erred and

abused its discretion when it found that the procedure the

State Medical Board of Ohio followed and the basis the Board

offered for amending the Hearing Examiner's Proposed Order

and adopting the Order permanently revoking Dr. Shah's

Ohio medical license was in accordance with law.

[III.] The Franklin County Court of Common Pleas erred and

abused its discretion when it found that the sanction imposed

upon Dr. Shah by State Medical Board of Ohio is

proportionate to his conduct.

{¶ 8} Because appellant's first and second assignments of error each address the

same issues, we will first consider them together.

A. Standard of Review

{¶ 9} Pursuant to R.C. 119.12, when a trial court reviews an order of an

administrative agency, it must consider the entire record to determine whether the

agency's order is supported by reliable, probative, and substantial evidence and is in

accordance with law. Macheret v. State Med. Bd. of Ohio, 188 Ohio App.3d 469, 473-74,

2010-Ohio-3483 (10th Dist.). If a party appeals the trial court's decision to affirm,

reverse, vacate, or modify the agency's order, the appellate court must determine whether

No. 14AP-147 4

the trial court abused its discretion in its examination of the record for reliable, probative,

and substantial evidence. Id., citing Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621

(1993). On questions of law, an appellate court's review is plenary. Franklin Cty. Sheriff

v. Frazier, 174 Ohio App.3d 202, 2007-Ohio-7001, ¶ 17 (10th Dist.).

B. Appellant's First and Second Assignments of Error–The

Board's Sanction Modification

{¶ 10} In these two assignments of error, appellant argues that the Board's

decision to modify the hearing officer's recommended sanction was contrary to law. We

disagree.

{¶ 11} The Board sanctioned appellant for a violation of R.C. 4731.22(B)(22),

which allows the Board to "limit, revoke, or suspend an individual's certificate to practice"

for:

[a]ny of the following actions taken by an agency responsible

for authorizing, certifying, or regulating an individual to

practice a health care occupation or provide health care

services in this state or another jurisdiction, for any reason

other than the nonpayment of fees: the limitation, revocation,

or suspension of an individual's license to practice; acceptance

of an individual's license surrender; denial of a license; refusal

to renew or reinstate a license; imposition of probation; or

issuance of an order of censure or other reprimand[.]

{¶ 12} The hearing officer concluded that the consent order entered into between

appellant and West Virginia was an action taken by another state agency under R.C.

4731.22(B)(22). This consent order authorized the Board to sanction appellant.

Appellant does not dispute this conclusion. Applegate v. State Med. Bd. of Ohio, 10th

Dist. No. 07AP-78, 2007-Ohio-6384, ¶ 25; Ross v. State Med. Bd. of Ohio, 10th Dist. No.

03AP-971, 2004-Ohio-2130, ¶ 12. Instead, he argues that the Board improperly modified

the hearing officer's recommended sanction because the evidence did not support its

reasons for the modification. We disagree.

{¶ 13} The Board appointed a hearing officer to conduct the hearing appellant

requested. After the hearing, that hearing officer submitted her report and

recommendation. Pursuant to R.C. 119.09, "[t]he recommendation of the referee or

examiner may be approved, modified, or disapproved by the agency * * *. No such

recommendation shall be final until confirmed and approved by the agency * * *, and if

No. 14AP-147 5

the agency modifies or disapproves the recommendations of the referee or examiner it

shall include in the record of its proceedings the reasons for such modification or

disapproval."

{¶ 14} The Board followed this statutory process. The Board considered the

hearing officer's recommendation and modified it to impose a harsher sanction. In so

doing, the Board complied with R.C. 119.09 by including in the records of its proceedings

the reasons for its modification. Specifically, the Board's stated rationale for its change

was "[t]he physician's permanent surrender of his West Virginia medical license,

surrender of his DEA registration, and the underlying prescribing habits and sexual

contact with a patient constitute grounds for permanent revocation in Ohio." Appellant

argues that these reasons were not supported by the evidence. We disagree. All of these

reasons are found in the West Virginia consent order, which also concluded that probable

cause existed to support all of these reasons. The West Virginia order is in the record and

is reliable, probative, and substantial evidence to support the reasons relied on by the

Board to modify the hearing officer's recommended sanction.

{¶ 15} The Board did not err when it modified the hearing officer's recommended

sanction pursuant to R.C. 119.09. Accordingly, the trial court did not abuse its discretion

by affirming the Board's decision. Appellant's first and second assignments of error are

overruled.

C. Appellant's Third Assignment of Error–The Sanction Imposed

by the Board

{¶ 16} In his third assignment of error, appellant also contends that the Board's

choice of sanction was not proportionate to his conduct. We reject this argument.

{¶ 17} When the board's order is supported by reliable, probative, and substantial

evidence and is in accordance with law, a reviewing court may not modify a sanction

authorized by statute. Henry's Cafe, Inc. v. Ohio Bd. of Liquor Control, 170 Ohio St. 233

(1959); Merritt v. Ohio Liquor Control Comm., 10th Dist. No. 02AP-709, 2003-Ohio-822,

¶ 34. R.C. 4731.22(B)(22) authorized the Board to revoke appellant's medical license if his

medical license in another state is suspended or limited by that state's licensing authority.

Applegate. Appellant does not dispute that this occurred. Therefore, because the Board

was authorized to sanction appellant, and the chosen sanction was authorized by statute,

No. 14AP-147 6

the trial court could not interfere with or modify the penalty imposed. Henry's Cafe, Inc.;

see also DeBlanco v. Ohio State Med. Bd., 78 Ohio App.3d 194 (10th Dist.1992).

{¶ 18} This court has consistently rejected the argument that appellant raises here

that his sanction was disproportionate pursuant to Brost v. Ohio State Med. Bd., 62 Ohio

St.3d 218, 221 (1991). That case does not stand for the proposition that a board must

apply a proportionality analysis to its sanctions. Rather, it addressed whether the board is

constrained by its disciplinary guidelines in imposing sanctions authorized by statute. Id.

at 221; Schechter v. Ohio State Med. Bd., 10th Dist. No. 04AP-1115, 2005-Ohio-4062,

¶ 72-77; Ross at ¶ 9-10.

{¶ 19} We overrule appellant's third assignment of error.

III. Conclusion

{¶ 20} Having overruled appellant's three assignments of error, we affirm the

judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

BROWN and DORRIAN, JJ., concur.

____________

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