Mansour v. State Med. Bd.

[Cite as Mansour v. State Med. Bd., 2018-Ohio-2605.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Waleed N. Mansour, M.D., :

Appellant-Appellant, :

v. : No. 17AP-615

(C.P.C. No. 16CV-793)

State Medical Board of Ohio, :

(REGULAR CALENDAR)

Appellee-Appellee. :

D E C I S I O N

Rendered on June 29, 2018

On brief: Dinsmore & Shohl, LLP, Eric J. Plinke and

Daniel S. Zinsmaster, for appellant. Argued: Eric J. Plinke.

On brief: Michael DeWine, Attorney General, Katherine

Bockbrader and Kyle C. Wilcox, for appellee. Argued:

Katherine Bockbrader.

APPEAL from the Franklin County Court of Common Pleas

TYACK, J.

{¶ 1} Appellant, Waleed N. Mansour, M.D., appeals the July 27, 2017 judgment of

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

Board of Ohio ("Board") permanently revoking Dr. Mansour's certificate to practice

medicine and surgery in Ohio. For the reasons that follow, we affirm the judgment of the

court of common pleas.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} This appeal stems from an R.C. 119.12 administrative appeal by Dr. Mansour

from an order of the Board issued January 13, 2016, permanently revoking Dr. Mansour's

certificate to practice medicine and surgery in Ohio. The Board's revocation was based on

No. 17AP-615 2

three areas where it found misconduct. The Board found that in 2012, Dr. Mansour

knowingly failed to disclose to the Board his conviction for domestic violence. In 2014, the

Board found that Dr. Mansour knowingly misled the Board concerning an action by the

Arizona Medical Board against him. In 2015, Dr. Mansour pled guilty to two counts of

possession of drugs.

{¶ 3} Dr. Mansour has been licensed to practice medicine in Ohio since 2000. He

stated that he primarily practices in the area of internal medicine.

II. 2012 RENEWAL APPLICATION

{¶ 4} In 2010, Dr. Mansour was found guilty of domestic violence in violation of

R.C. 2919.25(A), a first-degree misdemeanor. On his 2012 renewal application to renew

his certificate to practice medicine and surgery in Ohio, Dr. Mansour falsely answered "no"

to the question: "Have you been found guilty of, or pled guilty or no contest to, or received

treatment or intervention in lieu of conviction of, a misdemeanor or a felony?" (Dec. 2,

2015 Report and Recommendation at 3.)

{¶ 5} At his hearing before a Board hearing examiner, Dr. Mansour explained that

he did not disclose his conviction on his renewal form because he believed that his legal

counsel had divulged this conviction to a medical board enforcement attorney. Dr.

Mansour was given the opportunity to call the retired enforcement board attorney, but

declined to do so.

{¶ 6} The hearing examiner found Dr. Mansour not to be credible when he testified

that he did not intend to mislead the Board. The hearing examiner found that Dr. Mansour

produced no evidence either that his attorney disclosed the conviction to the Board or that

he advised Dr. Mansour not to disclose his conviction to the Board.

III. 2014 RENEWAL APPLICATION

{¶ 7} On July 2, 2014, the Arizona Medical Board sent a letter to Dr. Mansour

alleging Arizona statutory violations in case No. D-13-1430A. The letter stated that the

investigation in the above-referenced case was now complete, and the case had been

reviewed and referred to the full board for further action.

{¶ 8} On his 2014 renewal application, Dr. Mansour answered "yes" to the

question: "At any time since signing your last application for renewal of your certificate has

any board, bureau, department, agency, or any other body, including those in Ohio other

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than this board, filed any charges, allegations or complaints against you?" (Dec. 2, 2015

Report and Recommendation at 5.)

{¶ 9} Dr. Mansour followed up on December 1, 2104 in response to the Board's

October 17, 2014 letter requesting more information regarding his affirmative answer in

the 2014 renewal application. Dr. Mansour submitted the following explanation for his

affirmative answer:

Finally, I correctly answered "yes" to Question 4, which asks

* * *. As a result of the Ohio Board's December 13, Order of

reprimand and probation, I have had discussions regarding

the action with the Arizona Medical Board, with whom I

maintained an active license with until April 2014. While I

have not had "charges, allegations or complaints" filed by the

Arizona Medical Board to my knowledge --- they have merely

requested information about the prior Ohio action and

inquired about the status of the ongoing appeal --- I answer

this question "yes" in an abundance of caution.

State's Ex. 1(d); (Dec. 2, 2015 Report and Recommendation at 5.)

{¶ 10} Initially, Dr. Mansour could not recall whether he based his December 1, 2014

explanation only on the July 2, 2014 letter from the Arizona Medical Board. He later

claimed that he based his explanation on an interview with an Arizona Medical Board

investigator. He then claimed that he did not receive the July 2, 2014 letter from the

Arizona Medical Board until after he had sent the Ohio Board his December 1, 2014

response. The hearing examiner found that Dr. Mansour was not credible when he testified

that he did not intend to mislead the Board regarding the Arizona Medical Board action.

The hearing examiner rejected Dr. Mansour's explanation that the July 2, 2014 letter was

lost in the mail, and found it reasonable to presume that Dr. Mansour did receive the July

letter before December 1, 2014 because it was sent to the correct address.

IV. 2015 CONVICTION

{¶ 11} In February 2015, Dr. Mansour pleaded guilty, in the Mahoning County Court

of Common Pleas, to two counts of possessing drugs in violation of R.C. 2925.11(A) and

(C)(2)(a), first-degree misdemeanors. He was sentenced to a suspended sentence of six

months, a fine of $1,000, and ordered to pay court costs.

No. 17AP-615 4

V. PROCEEDINGS BEFORE THE BOARD

{¶ 12} After a hearing in which Dr. Mansour appeared and testified, the hearing

examiner found the violations proven and recommended a permanent revocation of Dr.

Mansour's license. The hearing examiner found Dr. Mansour's testimony regarding his

receipt of the Arizona letter not credible. The hearing examiner found Dr. Mansour's

testimony that he did not intend to mislead the Board with respect to his failure to disclose

his 2010 domestic violence conviction not credible as well.

{¶ 13} The Board accepted the recommendation and issued an order on January 13,

2016 permanently revoking Dr. Mansour's license.

{¶ 14} Pursuant to R.C. 119.12, Dr. Mansour appealed the Board's order to the

Franklin County Court of Common Pleas and, on July 27, 2017, the common pleas court

affirmed the Board's order.

VI. ASSIGNMENTS OF ERROR

{¶ 15} On appeal, Dr. Mansour has set forth the following five assignments of error

for our review:

[I.] The trial court erred in affirming the Board's Order, as the

Board cannot prove intent to deceive relative to Dr. Mansour's

July 16, 2014 Renewal Application and subsequent

December 1, 2014 explanation letter.

[II.] The trial court erred in affirming the Board's Order as the

Board did not rely on substantial, reliable, and probative

evidence in determining Dr. Mansour's intent to deceive

relative to the 2012 renewal.

[III.] The trial court erred in affirming the admission of State's

Exhibit 2(d), which was improperly admitted by the Board

over a Perchan objection; therefore, the Board's Order is

contrary to law.

[IV.] The trial court erred in affirming the Board's Order, as

the Board's Order contains a recitation of facts that is

unsupported by reliable, probative, and substantive evidence,

and is therefore contrary to law.

[V.] The trial court erred in affirming the Board's Order, as the

Hearing Examiner was inconsistent in evidentiary rulings in

violation of Dr. Mansour's due process rights.

No. 17AP-615 5

VII. STANDARD OF REVIEW

{¶ 16} In an administrative appeal, pursuant to R.C. 119.12, the court of common

pleas reviews an order to determine whether it is supported by reliable, probative, and

substantial evidence, and is in accordance with law. Mansour v. State Med. Bd. of Ohio,

10th Dist. No. 14AP-829, 2015-Ohio-1716, ¶ 22. The common pleas court's review is a

hybrid form of review in which a court apprises all the evidence, giving due deference to the

administrative determination of conflicting evidence and credibility conflicts, but reviewing

legal questions de novo. Id. Our review is limited to whether the court of common pleas

abused its discretion, but on the issue of whether the Board's order was in accordance with

law, our review is plenary. Id., citing McRae v. State Med. Bd. of Ohio, 10th Dist. No. 13AP-

52, 2014-Ohio-667, ¶ 16-17.

VIII. ANALYSIS

{¶ 17} In his first assignment of error, Dr. Mansour asserts that the Board failed to

prove that Dr. Mansour received the July 2, 2014 letter from the Arizona Medical Board

and that the Board failed to prove that Dr. Mansour intended to mislead the Board with his

December 1, 2014 letter.

{¶ 18} The Board can revoke a physician's certificate to practice if the physician is

found to violate R.C. 4731.22(B)(5), "[m]aking a false, fraudulent, deceptive, or misleading

statement * * * in securing or attempting to secure any certificate to practice issued by the

board." A false, fraudulent, deceptive, or misleading statement "means a statement that

includes a misrepresentation of fact, is likely to mislead or deceive because of a failure to

disclose material facts, is intended or is likely to create false or unjustified expectations of

favorable results, or includes representations or implications that in reasonable probability

will cause an ordinarily prudent person to misunderstand or be deceived." Id.

{¶ 19} In Rajan v. State Med. Bd. of Ohio, 118 Ohio App.3d 187, 195 (10th

Dist.1997), this court determined that intent to mislead is a necessary element to establish

a violation of R.C. 4731.22(B)(5). See also Gipe v. State Med. Bd., 10th Dist. No. 02AP-

1315, 2003-Ohio-4061; Bhama v. State Med. Bd., 10th Dist. No. 08AP-488, 2009-Ohio-

819. Direct evidence of intent is not necessary because intent may be inferred from the

surrounding circumstances. Hayes v. State Med. Bd. of Ohio, 138 Ohio App.3d 762 (10th

Dist.2000).

No. 17AP-615 6

{¶ 20} Here, Dr. Mansour's testimony constantly shifted as to whether he was in

possession of the July 2014 letter from the Arizona Medical Board at the time he filed his

follow-up response to the Ohio Board in December 2014. He acknowledged that he did

receive the July letter. He initially stated that he did not know if his understanding of the

Arizona action was based on anything other than the July letter. He remembered the letter

being sent to him. He testified that he did not receive any other documents from Arizona

Medical Board except a letter of reprimand. He testified that his answer in the December 1,

2014 letter was based on interviews he had with the investigator and not based on the July

letter per se. He indicated that the letter may have been dated July 2, 2014, but it was not

received on July 2, it was some time after that, way past July when he received it, but he

did not know if he received it prior to December 1, 2014. He stated it was a big delay.

{¶ 21} The Board rejected this testimony and found Dr. Mansour's shifting

explanations not credible. There was evidence in the record that the letter was sent to the

correct address. There is a rebuttable presumption, sometimes called the mailbox rule, that

once a notice is mailed, it is presumed to be received in due course. Weiss v. Ferro Corp.,

44 Ohio St.3d 178, 180 (1989); see also Gaston v. Medina Cty. Bd. of Revision, 133 Ohio

St.3d 18, 22, 2012-Ohio-3872, ¶ 17 (when both the date of mailing and the fact of receipt

have been established, courts take judicial notice of the ordinary course of the mail and

infer that in the ordinary course of the mail, the mailed document arrived on time). Here,

the date of the notice is July 2, 2014, Dr. Mansour acknowledged he received the letter, and

the letter was mailed to the correct address. The court of common pleas deferred to the

hearing examiner's credibility determination and did not abuse its discretion in concluding

that sufficient evidence existed that Dr. Mansour received the letter from the Arizona

Medical Board before he wrote his December 2104 letter to the Board. Intent to deceive

was adequately proven when one compares the letter from the Arizona Medical Board

stating that Arizona had filed charges against him with Dr. Mansour's claim that Arizona

was merely requesting additional information.

{¶ 22} Accordingly, we overrule the first assignment of error.

{¶ 23} In his second assignment of error, Dr. Mansour asserts that there is no

reliable, probative, and substantial evidence that Dr. Mansour intended to deceive the

No. 17AP-615 7

Board when he failed to report his domestic violence conviction on his 2012 renewal

application.

{¶ 24} It is undisputed that Dr. Mansour made a false statement in his renewal

application when he did not disclose that he had been convicted of domestic violence. Dr.

Mansour claimed that his attorney at the time, Mr. Rohrbaugh, told him that he did not

have to disclose the conviction because the attorney had previously disclosed the conviction

to a Board enforcement attorney. The hearing examiner found the explanation that his

failure to answer truthfully was somehow the fault of his prior counsel not credible. At the

end of the first day of the hearing, Dr. Mansour's attorney informed the hearing examiner

that he wished to call Mr. Rohrbaugh as a witness. The state's attorney informed the

hearing examiner that if Mr. Rohrbaugh testified, the state intended to call the Board

enforcement attorney to testify. Dr. Mansour's attorney then made the decision not to call

Mr. Rohrbaugh as a witness.

{¶ 25} Intent to mislead may be inferred from surrounding facts and circumstances,

such as when a physician knows information and fails to disclose it in response to a direct

question. Applegate v. State Med. Bd. of Ohio, 10th Dist. No. 07AP-78, 2007-Ohio-6384,

¶ 12. Here, Dr. Mansour knew that he had been convicted of domestic violence and failed

to disclose that in response to a direct question. His explanation for the omission was

deemed not credible. He was already under investigation at that time by the Board and

knew that his life and livelihood was tied up in defending the charges against him. The

intent to deceive was adequately proven by those circumstances.

{¶ 26} Accordingly, we overrule the second assignment of error.

{¶ 27} In his third assignment of error, Dr. Mansour argues that the Board erred in

admitting State's Ex.. No. 2(d), the transcript from his plea and sentencing hearing for drug

possession charges. Dr. Mansour argues that because it was unauthenticated and

uncertified, the transcript should not have been admitted. Additionally, Dr. Mansour

contends that the transcript should not have been admitted because it references additional

charges that were dismissed by the trial court that took his plea.

{¶ 28} The hearing examiner has broad discretion in admitting or rejecting

evidence. Stancourt v. Worthington City School Dist. Bd. of Edn., 164 Ohio App.3d 184,

2005-Ohio-5702, ¶ 70 (10th Dist.) Although the hearing examiner was not bound by the

No. 17AP-615 8

rules of evidence, even under Evid.R. 901(A), authentication is satisfied by "evidence

sufficient to support a finding that the matter in question is what its proponent claims."

{¶ 29} Here, the document was obviously a transcript, it had the appropriate

heading, caption, court, judge, and case number of the journal entries of Dr. Mansour's

conviction. Dr. Mansour confirmed the attorney and prosecutor identified in the transcript

were those assigned to his case. For Evid.R. 901 authentication purposes, the common

manner of identifying a document is through testimony of a witness with knowledge. State

v. Silverman, 10th Dist. No. 05AP-837, 2006-Ohio-3826, ¶ 78. Before he was interrupted,

Dr. Mansour indicated that he believed the transcript was an accurate representation, and

seemed to reflect what the prosecutor's office had communicated. The hearing examiner

was within his discretion to admit the exhibit.

{¶ 30} Dr. Mansour also asserts that it was error for the hearing examiner to admit

the transcript because it references multiple felony counts that were dismissed in exchange

for the guilty plea to two misdemeanor counts of drug possession. In Perchan v. State Med.

Bd., 10th Dist. No. 91AP-270 (June 13, 1991), this court found that it was error to admit a

multicount indictment when the appellant had been convicted of only one count. But in

Perchan, this court also stated that it did not appear that the appellant was prejudiced by

the admission of that evidence.

{¶ 31} Here, the transcript was replete with the prosecutor's explanation of why the

other charges were being dropped, Dr. Mansour's cooperation with the investigation, and

other mitigating factors. In addition, Dr. Mansour and his attorney repeatedly mentioned

the fact that Dr. Mansour had been indicted on multiple felony counts. Dr. Mansour cannot

show prejudice from the admission of the transcript.

{¶ 32} Accordingly, we overrule the third assignment of error.

{¶ 33} In his fourth assignment of error, Dr. Mansour argues that the Board's factual

findings concerning his conviction for possession of drugs is not supported by reliable,

probative, and substantial evidence.

{¶ 34} The hearing examiner found that "from January 1, 2007 to September 30,

2008, Dr. Mansour issued prescriptions in order to illegally obtain, possess, and/or use a

controlled substance." (Report and Recommendation at 12.) These essential facts were

based on the sentencing transcript in which Dr. Mansour pled guilty, the prosecutor

No. 17AP-615 9

explained the criminal investigation, and Dr. Mansour's defense counsel concurred with all

the statements made by the prosecutor. The prosecutor explained that Dr. Mansour wrote

prescriptions for controlled substances to friends and family members with the intent that

those individuals would fill the prescriptions and give the drugs to Dr. Mansour for his

personal use.

{¶ 35} Before the hearing examiner, Dr. Mansour stated that he pled guilty to move

on with his life, but avoided directly answering whether he pled guilty to something he did

not do. The Board was not required to accept this later, more self-serving explanation for

his guilty plea. The factual basis of the guilty plea was adequately established by the

transcript of the proceedings in the Mahoning County Court of Common Pleas.

{¶ 36} Accordingly, the fourth assignment of error is overruled.

{¶ 37} In his fifth assignment of error, Dr. Mansour contends that his due process

rights were violated when the hearing examiner admitted the sentencing transcript and

excluded an affidavit by Mr. Rohrbaugh. As discussed in connection with assignment of

error number three, the transcript was properly admitted.

{¶ 38} As for Mr. Rohrbaugh's affidavit, Dr. Mansour had the opportunity to call Mr.

Rohrbaugh as a witness, where he would be subject to cross-examination, and he declined

to do so. Dr. Mansour cannot complain that he was deprived of his due process rights when

Mr. Rohrbaugh was available to testify, he had the opportunity to call him, and he declined

to do so.

{¶ 39} Accordingly, the fifth assignment of error is overruled.

IX. CONCLUSION

{¶ 40} Having overruled all five assignments of error, the judgment of the Franklin

County Court of Common Pleas is affirmed.

Judgment affirmed.

KLATT and SADLER, JJ., concur.

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