Froehlich v. Ohio State Med. Bd.

[Cite as Froehlich v. Ohio State Med. Bd., 2016-Ohio-1035.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Kurt W. Froehlich, M.D., :

Appellant-Appellant, : No. 15AP-666

(C.P.C. No. 15CV-1349)

v. :

(REGULAR CALENDAR)

Ohio State Medical Board, :

Appellee-Appellee. :

D E C I S I O N

Rendered on March 15, 2016

On brief: Maguire & Schneider, LLP, Karl H. Schneider,

Mark R. Meterko, and Britney S. Brouwer, for appellant.

Argued: Karl H. Schneider

On brief: Michael DeWine, Attorney General, and, and

Melinda R. Snyder, for appellee. Argued: Melinda R.

Snyder

APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.

{¶ 1} Appellant, Kurt W. Froehlich, M.D., appeals from a decision and entry of

the Franklin County Court of Common Pleas affirming the order of appellee, State

Medical Board of Ohio ("the board"), permanently revoking Froehlich's license to practice

medicine and surgery in Ohio. For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} Froehlich is a physician who practices obstetrics and gynecology as a solo

practitioner. By notice of opportunity for hearing dated December 11, 2013, the board

notified Froehlich that it proposed to take disciplinary action against his certificate to

practice medicine and surgery in Ohio. In the notice, the board alleged Froehlich engaged

No. 15AP-666 2

in inappropriate sexual contact with two patients in violation of R.C. 4731.22(B)(20) and

Ohio Adm.Code 4731-26-02(A). Additionally, the board alleged Froehlich was found

guilty of a misdemeanor in the course of practice in violation of R.C. 4731.22(B)(11). The

board alleged these violations also constituted a violation of R.C. 4731.22(B)(6).

Froehlich timely requested a hearing in response to the notice.

{¶ 3} At the hearing commencing June 23, 2014, Froehlich testified regarding the

allegations contained in the notice. According to Froehlich's testimony, on June 17, 2010,

Patient 1 came to his office for an annual checkup and Pap smear. After he performed the

examination and after the chaperone left the room, but while Patient 1 was still in a gown

on the examination table, Froehlich testified Patient 1 asked him a question about sexual

arousal and the location of the "G-spot." (June 23, 2014 Tr. Vol. I, 33.) Froehlich

explained that the G-spot is "a location in the anterior vaginal wall" consisting of a dense

area of nerves, though he agreed there is some dispute in the medical community about

whether such an area actually exists. (June 23, 2014 Tr. Vol. I, 34.) Froehlich testified he

used his fingers to physically locate Patient 1's G-spot. Froehlich did not document in

Patient 1's record either Patient 1's question or his actions in physically locating her G-

spot.

{¶ 4} Froehlich testified that he subsequently encountered Patient 1 at the

hospital where they both worked. In a call room at the hospital, Froehlich said he again

demonstrated for Patient 1 the location of her G-spot and stimulated her to orgasm.

Approximately one week later, Froehlich said he had a "sexual relationship" with Patient

1, engaging in sexual intercourse with her at the hospital. (June 23, 2014 Tr. Vol. I, 38.)

In his testimony, Froehlich characterized his sexual encounters with Patient 1 as

"[p]roblematic," and he acknowledged he was in a position of authority over Patient 1

because she worked in the labor and delivery area of the hospital. (June 23, 2014 Tr.

Vol. I, 41.)

{¶ 5} Patient 2 had been Froehlich's patient since 2007. Froehlich testified he

was uncertain whether he helped Patient 2 locate her G-spot during an office visit.

However, the board's investigator, Michael W. Staples, testified at the hearing and read

from a written statement Froehlich had prepared for Staples in which Froehlich stated he

"showed [Patient 2] where her [G-spot] was," and also "saw her at the hospital and

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stimulated her to orgasm." (June 23, 2014 Tr. Vol. I, 233.) Froehlich testified the sexual

contact with Patient 2 occurred in an administrative room of the hospital in 2012.

{¶ 6} The board also heard testimony from S.F., a medical assistant who worked

in Froehlich's office. S.F. testified that on July 30, 2012, she stopped in Froehlich's office

to say goodbye as she was preparing to leave work. According to S.F.'s testimony,

Froehlich "stood up and started walking towards [her] and -- and said something about

how he had wanted [her] since [she] started working there." (June 23, 2014 Tr. Vol. I,

126.) S.F. said Froehlich then placed his hand on her side and "started rubbing up and

down from probably about the breast area down to the hips," and S.F said she

remembered being "very scared." (June 23, 2014 Tr. Vol. I, 126.) S.F. said she started to

push Froehlich away and attempted to back away from him, but Froehlich "reached

around and went up [her] shirt and he got up under [her] bra and had a hand completely

on [her] right breast." (June 23, 2014 Tr. Vol. I, 127.) S.F. testified that she pushed his

hand out of her shirt and tried to leave, but Froehlich then put his hand under her pants,

one or two inches under her underwear. After she pushed his hand away and again tried

to leave, S.F. said Froehlich turned her around, got close to her face and said "[y]ou know,

I think it's best that you don't work here anymore." (June 23, 2014 Tr. Vol. I, 128.)

{¶ 7} S.F. reported the incident to the police and provided a written statement to

the police. Froehlich ultimately entered a plea of no contest and was found guilty of

assault in violation of R.C. 2903.13, a first-degree misdemeanor.

{¶ 8} At the hearing, Froehlich testified regarding the incident with S.F., stating

he perceived S.F. as being flirtatious during this encounter. Froehlich testified he was

standing behind S.F. and put a hand on her hip and another hand on her shoulder, that

S.F. leaned back toward him, but that he said either "I can't," or "[w]e can't." (June 23,

2014 Tr. Vol. I, 95.) Froehlich testified that S.F. told him he was "a bad boy," and walked

out of the office. (June 23, 2014 Tr. Vol. I, 95.) Froehlich also described several instances

before the assault in which he perceived S.F. to behave flirtatiously toward him. Among

these instances, Froehlich described a time that he walked in on S.F. using a breast pump

to express breast milk and a separate occasion in which he asked S.F. to administer a

testosterone injection to his buttocks.

No. 15AP-666 4

{¶ 9} Following the hearing, on November 25, 2014, the hearing examiner issued

a report and recommendation finding Froehlich's sexual conduct with Patient 1 and

Patient 2 violated Ohio Adm.Code 4731-26-02, R.C. 4731.22(B)(20), and R.C.

4731.22(B)(6). The hearing examiner additionally found Froehlich had been found guilty

of a misdemeanor in the course of practice, in violation of R.C. 4731.22(B)(11). Although

the hearing examiner recommended a one-year suspension of Froehlich's certificate to

practice medicine, he noted that "[g]iven Dr. Froehlich's sexual misconduct with two

patients and criminal behavior toward an employee, the Board would be well-justified in

permanently revoking Dr. Froehlich's certificate." (Report and Recommendation, 30.)

Froehlich filed objections to the hearing examiner's proposed order.

{¶ 10} At the board's meeting on January 14, 2015, Froehlich and his counsel

addressed the board. After discussing the nature of Froehlich's conduct and the

appropriate disciplinary action, the board voted to modify the hearing examiner's

proposed order and permanently revoke Froehlich's certificate to practice medicine and

surgery in Ohio.

{¶ 11} Froehlich's counsel filed a motion for reconsideration, arguing there had not

been a proper motion to amend the proposed order. Froehlich's counsel further sought

clarification as to whether the amended order included a 30-day wind-down period. In

response to Froehlich's motion, the board voted to reconsider the matter. Froehlich

suggests the audio recording of the board's meeting demonstrates his counsel was not

speaking out of turn, but the audio recording is not a part of our record and, thus, we

must rely on the board's minutes. Pursuant to the board's minutes:

Mr. McGovern [Froehlich's counsel] rose and began

addressing the Board. Not having been recognized, Mr.

Kenney ruled that Mr. McGovern was out of order. Mr.

McGovern continued to attempt addressing the Board. At Mr.

Kenney's direction, the Ohio State Highway Patrolman

present escorted Mr. McGovern from the meeting.

(Excerpt from the Draft Minutes of Jan. 14, 2015 hereinafter "Board's Minutes," 5.)

{¶ 12} Following the removal of Froehlich's counsel from the meeting, the board

made a motion to amend the proposed order. The board voted to include a 30-day wind-

down period in the amended order, and the board further voted that Froehlich's

No. 15AP-666 5

objections would not be addressed as part of the reconsideration. With the inclusion of

the 30-day wind-down period, the board approved the amended order permanently

revoking Froehlich's certificate to practice medicine and surgery in Ohio.

{¶ 13} On February 16, 2015, Froehlich filed an appeal from the board's order to

the trial court. Froehlich argued the (1) board's order is invalid due to alleged procedural

errors the board made during its January 14, 2015 meeting, (2) the board violated Ohio's

open meeting requirement contained in R.C. 121.22, (3) the board erroneously concluded

that his misdemeanor assault conviction occurred in the course of practice, and (4) the

board erred in considering conduct not contained in the notice of opportunity for hearing.

The trial court concluded reliable, probative, and substantial evidence supported the

board's order and that the board's order is in accordance with law and, thus, affirmed the

board's order. The trial court journalized its decision in a June 9, 2015 decision and

entry. Froehlich timely appeals.

II. Assignments of Error

{¶ 14} Froehlich assigns the following errors for our review:

1. The Trial Court erred when it found that the State Medical

Board of Ohio's removal of Dr. Froehlich's counsel from the

Board meeting was in accordance with the law.

2. The Trial Court erred when it found that the State Medical

Board of Ohio's consideration of uncharged conduct was in

accordance with the law.

3. The Trial Court erred when it found that Dr. Froehlich's

misdemeanor assault conviction occurred in the course of the

practice in violation of R.C. 4731.22(B)(11).

4. The Trial Court erred in affirming the State Medical Board

of Ohio's finding that Dr. Froehlich's testimony regarding the

assault incident was less believable than S.F.'s testimony.

III. Standard of Review

{¶ 15} In reviewing an order of an administrative agency under R.C. 119.12, a

common pleas court must consider the entire record to determine whether reliable,

probative, and substantial evidence supports the agency's order and whether the order is

in accordance with law. Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 110 (1980).

No. 15AP-666 6

The common pleas court's "review of the administrative record is neither a trial de novo

nor an appeal on questions of law only, but a hybrid review in which the court 'must

appraise all the evidence as to the credibility of the witnesses, the probative character of

the evidence, and the weight thereof.' " Lies v. Ohio Veterinary Med. Bd., 2 Ohio App.3d

204, 207 (1st Dist.1981), quoting Andrews v. Bd. of Liquor Control, 164 Ohio St. 275, 280

(1955). The common pleas court must give due deference to the administrative agency's

resolution of evidentiary conflicts, but "the findings of the agency are by no means

conclusive." Conrad at 111. On questions of law, the common pleas court conducts a de

novo review, exercising its independent judgment in determining whether the

administrative order is " 'in accordance with law.' " Ohio Historical Soc. v. State Emp.

Relations Bd., 66 Ohio St.3d 466, 471 (1993), quoting R.C. 119.12.

{¶ 16} An appellate court's review of an administrative decision is more limited.

Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). The appellate court is to

determine only whether the common pleas court abused its discretion. Id.; Blakemore v.

Blakemore, 5 Ohio St.3d 217, 218 (1983). On review of purely legal questions, however,

an appellate court has de novo review. Big Bob's, Inc. v. Ohio Liquor Control Comm., 151

Ohio App.3d 498, 2003-Ohio-418, ¶ 15 (10th Dist.).

IV. First Assignment of Error – Removal of Counsel from Board Meeting

{¶ 17} In his first assignment of error, Froehlich argues the trial court erred in

determining the board acted in accordance with law when it removed Froehlich's counsel

from the board's meeting. More specifically, Froehlich asserts the board's removal of his

counsel from the meeting (1) violated the requirements of procedural due process, (2)

violated the board's own policy with respect to following The Standard Code of

Parliamentary Procedures ("Standard Code"), and (3) violated the Ohio Open Meetings

Act. Because this assignment of error concerns questions of law, we review it de novo.

Big Bob's, Inc. at ¶ 15.

A. Procedural Due Process

{¶ 18} Under this assignment of error, Froehlich first argues the board violated his

right to procedural due process by removing his counsel from the board's January 14,

2015 meeting.

No. 15AP-666 7

{¶ 19} In an administrative hearing, " '[t]he fundamental requirement of

procedural due process is notice and hearing, that is, an opportunity to be heard.' " Urban

v. State Med. Bd., 10th Dist. No. 03AP-426, 2004-Ohio-104, ¶ 25, quoting Korn v. Ohio

State Med. Bd., 61 Ohio App.3d 677, 684 (10th Dist.1988). " 'Procedural due process also

embodies the concept of fundamental fairness.' " Id., quoting Sohi v. Ohio State Dental

Bd., 130 Ohio App.3d 414, 422 (1st Dist.1998). Additionally, " 'notice and hearing are

necessary to comply with due process in an administrative proceeding which revokes an

individual's license to practice a profession.' " Id., quoting Korn at 684.

{¶ 20} The board provided Froehlich with written notice of the allegations against

him and subsequently afforded him a three-day hearing during which Froehlich was

represented by counsel and during which Froehlich was able to present evidence and

arguments. Following the hearing, the board provided Froehlich with the proposed order

and allowed Froehlich to submit written objections to the proposed order. At the board's

meeting, the board allowed Froehlich's counsel to address the board before formally

adopting the proposed order. The board further accepted Froehlich's motion for

reconsideration, and in fact granted the motion for reconsideration to formally move to

amend the proposed order before voting on the proposed order as amended. Though

Froehlich now argues his counsel's removal from the meeting without the board giving

him the opportunity to make a record or raise any objections deprived him of his

opportunity to be heard, the record undermines this argument. The board allowed

Froehlich to file his motion for reconsideration and subsequently voted to reconsider the

matter. It was not until Froehlich's counsel attempted to argue again, which the board

had previously allowed him to do at the morning meeting before the first vote, that the

board removed Froehlich's counsel for speaking out of turn and being disruptive.

{¶ 21} As the board notes, Froehlich cites no authority to support his argument

that his right to procedural due process encompasses a right to have his counsel speak out

of turn at the board's meeting. The record here does not demonstrate that the board's

removal of Froehlich's counsel from the board meeting somehow deprived Froehlich of

his right to procedural due process. See Khan v. State Med. Bd. of Ohio, 10th Dist. No.

14AP-772, 2015-Ohio-1242, ¶ 19 (noting that, on the "narrower question of what due

process must be afforded a physician when guilt has already been adjudged and only the

No. 15AP-666 8

issue of sanction remains before the board[,] * * * a physician has no cognizable due

process interest in having another opportunity to be heard"), citing In re Vaughn v. State

Med. Bd. of Ohio, 10th Dist. No. 95APE05-645 (Nov. 30, 1995). The board provided

Froehlich ample opportunity to be heard throughout the administrative process. Thus,

we do not agree with Froehlich that the board's removal of his counsel from the board's

meeting violated his due process rights.

B. The Standard Code of Parliamentary Procedures

{¶ 22} Froehlich next argues the board's order was not in accordance with law

because the board did not use the right language in moving to amend the order to

permanently revoke Froehlich's license. Froehlich asserts that board policy requires that

official meetings follow the Standard Code, and, according to the Standard Code,

whenever a motion is made, the board must vote upon the motion, or there must be a new

motion to amend it. Here, a member of the board moved to approve and confirm the

report and recommendation with the one-year suspension. During the discussion of this

motion, another member of the board stated "he would favor permanent revocation," and

yet another board member stated he would "second." (Board's Minutes, 3.) Froehlich

argues the board erroneously construed this exchange as a motion to amend the proposed

order which denied Froehlich a potential vote on the proposed order without the

amendment.

{¶ 23} The board is not required to use any "magic language" in order to make a

motion. See Nalluri v. State Med. Bd. of Ohio, 10th Dist. No. 14AP-530, 2014-Ohio-5530,

¶ 20-21 (noting the appellant's failure to present any authority "for the proposition that

the board's failure to follow the standard code invalidates the board's order," and noting

that "[a]s a general rule, the courts cannot review questions of parliamentary law

governing acts of a presiding officer with respect to the order of motions, and no appeal

lies to the court for alleged errors of a presiding officer in administering parliamentary

law"). Froehlich does not suggest the language as used at the board's meeting caused any

confusion to other board members as to what, procedurally, was occurring. To the

contrary, the minutes of the board's meeting construed the statement as the board

member having "moved to amend the Proposed Order in order to permanently revoke Dr.

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Froehlich's license," and that another doctor "seconded the motion." (Board's Minutes,

3.)

{¶ 24} Second, to the extent Froehlich argues the failure to use any sort of magic

language was a procedural error, that, when coupled with his counsel's removal from the

meeting, resulted in a deprivation of his due process rights, this argument is untenable.

As the meeting minutes reflect, even if the language used to amend the proposed order

were somehow insufficient, the board granted Froehlich's motion to reconsider and

corrected the language it used to move to amend the proposed order. Thus, we do not

agree with Froehlich that the board's alleged failure to follow the Standard Code somehow

rendered the board's order contrary to law.

C. Ohio Open Meetings Act

{¶ 25} Finally under this assignment of error, Froehlich argues his counsel's

removal from the board's meeting constituted a violation of the Ohio Open Meetings Act.

R.C. 121.22 provides, in pertinent part:

(A) This section shall be liberally construed to require public

officials to take official action and to conduct all deliberations

upon official business only in open meetings unless the

subject matter is specifically excepted by law.

***

(H) A resolution, rule, or formal action of any kind is invalid

unless adopted in an open meeting of the public body. A

resolution, rule, or formal action adopted in an open meeting

that results from deliberations in a meeting not open to the

public is invalid unless the deliberations were for a purpose

specifically authorized in division (G) or (J) of this section and

conducted at an executive session held in compliance with this

section. A resolution, rule, or formal action adopted in an

open meeting is invalid if the public body that adopted the

resolution, rule, or formal action violated division (F) of this

section.

{¶ 26} Froehlich argues the board's removal of his attorney from the meeting

violated R.C. 121.22(H). He does not explain, however, how removing one member of the

public for speaking out of turn renders the entire meeting in violation of R.C. 121.22.

Additionally, although the Ohio Open Meetings Act requires open meetings, "[t]here is

No. 15AP-666 10

nothing in the statute that requires that the public body permit a member of the public to

speak at the meeting." Wyse v. Rupp, 6th Dist. No. F-94-19 (Sept. 15, 1995). Thus, we do

not agree with Froehlich that the board violated the Ohio Open Meetings Act when it

removed his counsel from the meeting.

{¶ 27} In summation, the trial court did not err in determining the board adopted

its order in accordance with law and the board's removal of his counsel did not either

implicate his due process rights or constitute a violation of Ohio law. Accordingly, we

overrule Froehlich's first assignment of error.

V. Second Assignment of Error – Consideration of Uncharged Conduct

{¶ 28} In his second assignment of error, Froehlich argues the trial court erred

when it determined the board acted in accordance with law when it considered conduct

not set forth in the notice of opportunity for hearing. More specifically, Froehlich asserts

the board improperly considered (1) evidence that Froehlich walked in on S.F. while she

was pumping breast milk and (2) evidence that Froehlich asked S.F. to administer a

testosterone injection to his buttocks. Froehlich asserts the board's failure to provide him

adequate notice of its intention to consider this conduct resulted in a violation of his due

process rights. This assignment of error presents a question of law that we review de

novo. Big Bob's, Inc. at ¶ 15.

{¶ 29} " 'An elementary and fundamental requirement of due process in any

proceeding which is to be accorded finality is notice reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the action and afford them

an opportunity to present their objections.' " Althof v. Ohio State Bd. of Psychology, 10th

Dist. No. 05AP-1169, 2007-Ohio-1010, ¶ 19, quoting Mullane v. Cent. Hanover Bank &

Trust Co., 339 U.S. 306, 314 (1950). " ' "The right to a hearing embraces not only the right

to present evidence, but also a reasonable opportunity to know the claims of the opposing

party and to meet them." ' " Id., quoting Gonzales v. United States, 348 U.S. 407, 414, fn.

5 (1955), quoting Morgan v. United States, 304 U.S. 1, 18 (1938).

{¶ 30} In the context of a proceeding to revoke a medical license, this court has

determined the board's notice is constitutionally sufficient where the notice includes

(1) the allegation against the physician, (2) the statute directly involved, and (3) the

No. 15AP-666 11

reasons for the board's proposed action. Gross v. Ohio State Med. Bd., 10th Dist. No.

08AP-437, 2008-Ohio-6826, ¶ 24.

{¶ 31} Froehlich argues that because the notice of opportunity for hearing

provided to him made no mention of the incidents related to the breast pump or the

testosterone injection, the board could not consider that conduct. As a preliminary

matter, as the trial court notes, it was Froehlich who volunteered this information as an

explanation of his actions during the assault, using both instances as examples of times

Froehlich believed S.F. had been flirtatious with him prior to the assault. Though

Froehlich argues the board considered the uncharged conduct in order to discipline him,

the record indicates the board considered the uncharged conduct in determining the

appropriate sanction. This court has previously held that "a disciplinary body may

consider aggravating circumstances, including uncharged misconduct, in determining the

appropriate sanction for a member who violates the rules of practice." Macheret v. State

Med. Bd. of Ohio, 188 Ohio App.3d 469, 2010-Ohio-3483, ¶ 27 (10th Dist.), citing

Columbus Bar Assn. v. Farmer, 111 Ohio St.3d 137, 2006-Ohio-5342. As the trial court

noted, the board's findings of Froehlich's violations involved the sexual conduct with

Patient 1 and Patient 2, as well as Froehlich's assault conviction. Thus, we agree with the

trial court that the actual charges before the board were not based on the two incidents to

which Froehlich now points.

{¶ 32} Froehlich asserts that the references to the breast pump and the

testosterone injection appear in the board's minutes in the context of a larger discussion

of Froehlich's conduct before the board voted on whether or not to discipline him. As

such, Froehlich argues it is at least unclear whether the board considered the uncharged

conduct in determining whether or not to discipline him. However, this argument is mere

speculation. There was ample, uncontested evidence before the board supporting the

violations that had no relation to the instances with the breast pump and the testosterone

injection. Thus, we do not agree with Froehlich that the board improperly considered

uncharged conduct in determining whether to discipline him. Because the trial court did

not err in determining the board's order was in accordance with law, we overrule

Froehlich's second assignment of error.

No. 15AP-666 12

VI. Third Assignment of Error – Course of Practice

{¶ 33} In his third assignment of error, Froehlich argues the trial court erred in

concluding Froehlich's assault conviction occurred in the course of practice as required by

R.C. 4731.22(B)(11). This assignment of error presents a question of the interpretation of

a statute, and we review it de novo. Hope Academy v. Ohio Dept. of Edn., 10th Dist. No.

07AP-758, 2008-Ohio-4694, ¶ 13.

{¶ 34} The board determined Froehlich violated R.C. 4731.22(B) and (B)(11),

which permits the board to "limit, revoke, or suspend an individual's certificate to

practice" based on "[a] plea of guilty to, a judicial finding of guilt of, or a judicial finding of

eligibility for intervention in lieu of conviction for, a misdemeanor committed in the

course of practice." R.C. 4731.22 (B) and (B)(11). The statute does not define "course of

practice." Froehlich argues that, at a minimum, "course of practice" must relate to the

practice of medicine. According to Froehlich, the evidence before the board demonstrated

his misdemeanor assault conviction had no relation to the practice of medicine.

{¶ 35} "A physician's course of practice is not limited to consulting with or treating

patients." Oyortey v. State Med. Bd. of Ohio, 10th Dist. No. 12AP-431, 2012-Ohio-6204,

¶ 29. This court has previously determined that a physician's performance of seemingly

administrative tasks is within the course of practice. Higginbotham v. Perez, 10th Dist.

No. 93APE12-1711 (Sept. 6, 1994) (completion of medical records is within the course of

practice); Roy v. Ohio State Med. Bd., 80 Ohio App.3d 675, 682 (10th Dist.1992) (patient

billing is within the course of practice); Oyortey at ¶ 30 (a physician's completion of a

recommendation for a physician applicant occurs in the course of practice); Davidson v.

State Med. Bd. of Ohio, 10th Dist. No. 97APE08-1036 (May 7, 1998) (obstructing official

business by removing billing documents from patient files committed in the course of

practice).

{¶ 36} Froehlich asserts his assault conviction had no relationship to his practice of

medicine because it occurred after normal business hours and after all the patients had

left the office. However, the trial court identified the many connections the assault had to

Froehlich's medical practice. The assault occurred in Froehlich's office and the victim was

his employee. Froehlich testified that he was updating medical records on his computer

when S.F. came into his office and that the assault occurred during a discussion about

No. 15AP-666 13

how S.F.'s employment was going. When S.F. attempted to leave Froehlich's office

following the assault, he told her it was best if she did not work there any longer. These

facts are not in dispute, and they demonstrate the assault had a direct link to Froehlich's

management and operation of his medical practice. Thus, we conclude Froehlich

committed the assault in the course of practice under R.C. 4731.22(B)(11), and we

overrule Froehlich's third assignment of error.

VII. Fourth Assignment of Error – Witness Credibility

{¶ 37} In his fourth and final assignment of error, Froehlich argues the trial court

abused its discretion in determining reliable, probative, and substantial evidence supports

the board's order. More specifically, Froehlich argues the board erroneously relied on

S.F.'s testimony regarding the assault when Froehlich's testimony was more credible.

{¶ 38} S.F.'s testimony related to the board's finding that Froehlich violated R.C.

4731.22(B)(11) when he assaulted S.F. Under Ohio Adm.Code 4731-13-24, "[a] certified

copy of a plea of guilty to, or a judicial finding of guilt of any crime in a court of competent

jurisdiction is conclusive proof of the commission of all of the elements of that crime."

Thus, even without S.F.'s testimony, the board, and subsequently the trial court, had

sufficient reliable, probative, and substantial evidence to conclude Froehlich committed

the assault.

{¶ 39} Accordingly, we conclude the trial court did not abuse its discretion in

determining reliable, probative, and substantial evidence supports the board's order. We

overrule Froehlich's fourth and final assignment of error.

VIII. Disposition

{¶ 40} Based on the foregoing reasons, the trial court did not err in affirming the

board's order permanently revoking Froehlich's certificate to practice medicine. Having

overruled Froehlich's four assignments of error, we affirm the judgment of the Franklin

County Court of Common Pleas.

Judgment affirmed.

KLATT and SADLER, JJ., concur.