Opinion

Darr v. State Med. Bd. of Ohio

  • 214 N.E.3d 1284
  • 2023 Ohio 1723
Court
Ohio Court of Appeals
Filed
May 23, 2023
Status
Published
On the bench
Jamison
Cited by
0 cases
Authority
More cited than 23.3%

The opinion

[Cite as Darr v. State Med. Bd. of Ohio, 2023-Ohio-1723.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Richard B. Darr, M.D., :

Plaintiff-Appellant, : No. 22AP-498

(C.P.C. No. 21CV-7916)

v. :

(REGULAR CALENDAR)

State Medical Board of Ohio, :

Defendant-Appellee. :

D E C I S I O N

Rendered on May 23, 2023

On brief: Lindhorst & Dreidame, Co., L.P.A, Michael F.

Lyon, and Cullen P. Rooney, for appellant. Argued:

Michael F. Lyon.

On brief: Dave Yost, Attorney General, Melinda R. Snyder,

Kyle C. Wilcox, and Katherine J. Bockbrader, for appellee.

Argued: Katherine J. Bockbrader.

APPEAL from the Franklin County Court of Common Pleas

JAMISON, J.

{¶ 1} Appellant, Richard B. Darr, M.D., appeals from a judgment of the Franklin

County Court of Common Pleas, affirming a decision of appellee, State Medical Board of

Ohio (“Board”), revoking appellant’s license to practice medicine in the state of Ohio. For

the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} Appellant testified he was first licensed to practice medicine in Utah in 1970

and became licensed in the state of Ohio in 1991. According to appellant, he initially

practiced internal medicine in the university setting, but he transitioned to the private

practice of geriatric medicine in 2000. From 2000 to 2018, appellant organized his practice

No. 22AP-498 2

so he could see one-third of his patients in a hospital setting, one-third in his medical office,

and the other one-third in the nursing home. In 2018, however, he lost his hospital

privileges and was subsequently suspended by the Board in 2020. Appellant testified he is

the only physician in his medical office and has several assistants, some of whom are family

members. He also stated the average age of his patients is 86. Appellant maintained that he

continues to work 80 hours per week as he has done so throughout his practice.

{¶ 3} In 2009, appellant was examined by Jerry Flexman, Ph.D., a clinical

neuropsychologist, following a referral by a Springfield, Ohio hospital in which appellant

had privileges. Dr. Flexman conducted neuropsychological testing of appellant and

concluded appellant’s condition could be described as a mild cognitive impairment. In

Dr. Flexman’s August 8, 2011 report, he stated: “The results of the current

evaluation....[are] generally consistent with a general cognitive impairment, primarily in

the nonverbal levels of information processing. Sequencing and speed of processing were

areas showing significant difficulties. These results are consistent with a mild cognitive

impairment.” (State’s Ex. 3 at 11.)

{¶ 4} Appellant disagreed with Dr. Flexman’s evaluation and he sought a second

opinion from Douglas Scharre, M.D., who is board certified in neurology, behavioral

neurology, and neuropsychology. Dr. Scharre interviewed appellant and conducted some

neurological testing. Dr. Scharre did not believe appellant suffered from any neurocognitive

disorder or impairment. Rather, Dr. Scharre suspected appellant suffered from Attention-

Deficit/Hyperactivity Disorder (“ADHD”). Appellant has continued to see Dr. Scharre since

2009.

{¶ 5} In 2016, the Board began fielding complaints concerning appellant’s

competency. At the Board hearing, Board Enforcement Attorney Cheryl Pokorny testified

she reviewed these complaints and drafted a “synopsis of complaints,” which was admitted

into evidence as State’s exhibit 11.1 (Tr. Vol. II at 318.) According to Pokorny, one complaint

received by the Board was from a local probate court judge before whom appellant had

testified as an expert in competency and guardianship proceedings. According to the judge,

appellant offered contradictory opinions on the issue of competency in the same case. The

1 Admitted for the limited purpose of establishing information, the Board provided State’s exhibit 11 to Stephen

G. Noffsinger, M.D.

No. 22AP-498 3

Board also fielded complaints from appellant’s colleagues and co-workers alerting the

Board to instances where appellant prescribed inconsistent care for patients. In one

instance, appellant prescribed physical therapy for a patient for whom he had also

prescribed hospice/palliative care, and in another, appellant prescribed testosterone to a

patient who was being prescribed a testosterone antagonist for treatment of his prostate

cancer.

{¶ 6} Other derogatory information received by the Board included a report that

upon entering a nursing home, appellant was unable to remember his home address and

had to check his driver’s license for the information. It was also reported that appellant

could not recall patients’ names within a month of seeing them. In 2019, appellant forgot

patient names when speaking with a Board representative even though he had been

reminded of their names earlier in the conversation. One physician reportedly told the

Board that appellant was “not firing on all cylinders.” (Tr. Vol. II at 314.) Additionally, a

hospital social worker reportedly informed the Board that appellant was commonly

referred to as “Dr. Dementia.” (Tr. Vol. II at 316.) Pokorny also told the Board that appellant

voluntarily relinquished privileges at a local hospital in 2018 as a result of complaints. On

cross-examination, Pokorny admitted the facts underlying the complaints she summarized

in the synopsis have not been independently verified.

{¶ 7} On November 19, 2020, the Board notified appellant that it had reason to

believe that he was impaired in his ability to practice medicine according to acceptable and

prevailing standards of care due to mental or physical illness. The Board ordered appellant

to attend an examination with Stephen G. Noffsinger, M.D., a board-certified forensic

psychiatrist. Following an interview with appellant, Dr. Noffsinger submitted a report to

the Board wherein he concluded that appellant is unable to practice according to acceptable

and prevailing standards of care by reason of an unspecified neurocognitive disorder that

adversely affects appellant’s cognitive skills.

{¶ 8} On March 10, 2021, the Board issued a summary suspension of appellant’s

license to practice medicine, pursuant to R.C. 4731.22(G), due to an alleged “[i]nability to

practice according to acceptable and prevailing standards of care by reason of mental illness

or physical illness, including but not limited to, physical deterioration that adversely affects

No. 22AP-498 4

cognitive, motor or perceptive skills.” (State’s Ex. 1a.) Appellant disputed the Board’s

determination of his competency and requested a hearing.

{¶ 9} On July 31, 2021, Scott Magnuson, Psy.D., interviewed appellant at the

request of the Board. After conducting some neurological testing and reviewing other

relevant information regarding appellant, Dr. Magnuson diagnosed appellant with mild

neurocognitive disorder and issued a report. According to Dr. Magnuson, appellant is

unable to practice according to acceptable and prevailing standards of care by reason of a

neurocognitive disorder that adversely affects appellant’s cognitive skills.

{¶ 10} A Board hearing examiner conducted a 3-day evidentiary hearing in October

2021. Appellant was 78 years old at the time of the Board hearing. The evidence presented

at the hearing included the testimony of appellant, attorney Pokorny, and Dr. Noffsinger,

Dr. Magnuson, Dr. Scharre, and Thomas Erickson, M.D., appellant’s primary physican.

The written reports submitted by Drs. Noffsinger and Magnuson were also admitted into

evidence as well as the videotaped interview of appellant by Dr. Noffsinger.

{¶ 11} On November 12, 2021, the hearing examiner issued a 58-page report

recommending permanent revocation of appellant’s medical license. On December 8, 2021,

the Board met to consider the matter. On that same date, the Board issued an order stating:

“The license of Richard B. Darr, M.D., to practice medicine and surgery in the State of Ohio

shall be PERMANENTLY REVOKED.” (Emphasis sic.) (Dec. 8, 2021 Entry of Order at 1.)

{¶ 12} Appellant appealed the Board’s decision to the court of common pleas,

pursuant to R.C. 119.12. The trial court affirmed the Board’s order on finding that it was

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

{¶ 13} Appellant appealed to this court from the judgment of the trial court.

II. ASSIGNMENT OF ERROR

{¶ 14} Appellant assigns the following sole assignment of error for our review:

The Court of Common Pleas abused its discretion in affirming

the State Medical Board’s Order since that Order was not

supported by reliable, probative, and substantial evidence.

III. STANDARD OF REVIEW

{¶ 15} In an appeal from an order of the Board, a reviewing trial court is bound to

uphold the order if it is supported by reliable, probative, and substantial evidence, and is in

accordance with law. R.C. 119.12; T.E. v. State Med. Bd. of Ohio, 10th Dist. No. 21AP-142,

No. 22AP-498 5

2022-Ohio-1471, ¶ 21, appeal not accepted for review, T.E. v. State Med. Bd. of Ohio, 167

Ohio St.3d 1499, 2022-Ohio-2953. “ ‘ “Reliable” evidence is dependable; that is, it can be

confidently trusted. In order to be reliable, there must be a reasonable probability that the

evidence is true. “Probative” evidence is evidence that tends to prove the issue in question;

it must be relevant in determining the issue. “Substantial” evidence is evidence with some

weight; it must have importance and value.’ ” Demint v. State Med. Bd. of Ohio, 10th Dist.

No. 15AP-456, 2016-Ohio-3531, ¶ 11, quoting Our Place, Inc. v. Ohio Liquor Control

Comm., 63 Ohio St.3d 570, 571 (1992).

{¶ 16} “While it is incumbent on the trial court to examine the evidence, this is not

a function of the appellate court. The appellate court is to determine only if the trial court

has abused its discretion, i.e., being not merely an error of judgment, but perversity of will,

passion, prejudice, partiality, or moral delinquency [or, we note, misunderstanding of law].

Absent an abuse of discretion on the part of the trial court, a court of appeals may not

substitute its judgment for those of the medical board or a trial court. Instead, the appellate

court must affirm the trial court’s judgment.” Pons v. Ohio State Med. Bd., 66 Ohio St.3d

619, 621 (1993).

IV. LEGAL ANALYSIS – ASSIGNMENT OF ERROR

{¶ 17} In appellant’s sole assignment of error, he contends the trial court abused its

discretion when it determined the administrative record contains reliable, probative, and

substantial evidence in support of the Board’s order permanently revoking his medical

license. We disagree.

{¶ 18} “The Ohio Revised Code ‘vests the Board with broad authority to regulate the

medical profession in [Ohio], and to discipline any physician whose care constitutes “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.” ’ ” Demint at ¶ 11, quoting Griffin v. State Med. Bd. of Ohio, 10th

Dist. No. 09AP-276, 2009-Ohio-4849, ¶ 3, quoting R.C. 4731.22(B)(6). R.C. 4731.22(B)

requires the Board to revoke a physician’s medical license under the following

circumstances:

[T]he board, by an affirmative vote of not fewer than six

members, shall, to the extent permitted by law, * * * revoke

No. 22AP-498 6

* * * [an individual’s] certificate to practice * * * for one or

more of the following reasons:

(19) Inability to practice according to acceptable and

prevailing standards of care by reason of mental illness or

physical illness, including, but not limited to, physical

deterioration that adversely affects cognitive, motor, or

perceptive skills.

R.C. 4731.22(B)(19). See also Ohio Adm.Code 4731-28-01.

{¶ 19} Here, the trial rejected appellant’s contention that the Board erroneously

relied on the opinion testimonies of Drs. Magnuson and Noffsinger, while disregarding the

opinion testimonies of Drs. Scharre and Erickson. In affirming the order of revocation, the

trial court noted that “[t]he record shows that the Hearing Examiner and the Board weighed

the credibility of the witnesses, made a determination as to their credibility, and explained

the reasons for the determination.” (June 14, 2022 Decision & Entry at 9.) We agree with

the trial court.

{¶ 20} Dr. Scharre is board certified in neurology, behavioral neurology, and

neuropsychology. He is a professor at The Ohio State University, with a clinical practice

including research, and the diagnosis and treatment of Alzheimer’s Disease, Lewy body

dementia, frontotemporal disorders, mild cognitive disorders, and behavioral

manifestations. Dr. Scharre described the field of neurology as the study of the brain, spinal

cord, nerves, and muscles. According to Dr. Scharre, neuropsychiatric conditions may

impact mood, behavior, cognition, language, executive skills, memory, attention, and focus.

{¶ 21} Appellant was first examined by Dr. Scharre in 2009, after appellant was

referred to him for neurological testing by the “disruptive physician committee” of a local

hospital. (Tr. Vol. III at 489.) Dr. Scharre had known appellant professionally for 20 years,

as they had served on committees together. His impression of appellant was that he was a

physician who held “strong rooted opinions about things, and typically he would be

argumentative, I think, in terms of displaying his opinions.” (Tr. Vol. III at 490.) Dr. Scharre

also commented that appellant can be obstinate. Dr. Scharre undertook an assessment of

potential deficits in appellant’s attention, executive functioning, and memory. Dr. Scharre

saw appellant 3 times in 2009 and conducted neurological testing including

electroencephalopathy and cognitive skills assessments.

No. 22AP-498 7

{¶ 22} Based on his interview of appellant and the neuropsychological testing,

Dr. Scharre concluded there was no evidence appellant suffered either from a degenerative

cognitive disorder or a progressive cognitive impairment. According to Dr. Scharre,

appellant’s “past medical history and childhood history * * * suggested mostly of Attention

Deficit Disorder causing issues with attention, [and] some distractibility.” (Tr. Vol. III at

493.)

{¶ 23} Dr. Scharre saw appellant again in 2014, 2016, and 2017. According to

Dr. Scharre, appellant’s office visit in 2016 was the result of a Board referral based on a

reported incident involving appellant at a nursing home. In 2016, Dr. Scharre reviewed the

2009 neurological testing performed by Dr. Flexman and acknowledged the test results

showed appellant had difficulties with visual spacial memory, attention, and speed

processing. According to Dr. Scharre, appellant tested well on the multi-domain testing he

performed in 2016. Dr. Scharre concluded that appellant did not suffer from a

neurocognitive disorder and there is no evidence of any progression in the cognitive deficits

he observed in 2009.

{¶ 24} Dr. Scharre saw appellant again in 2020 and most recently in February 2021.

When asked his opinion about appellant’s condition in 2021, he opined that “there was no

progression of any cognitive issues, nor any evidence of degenerative or progressive

cognitive disorder.” (Tr. Vol. III at 512.)

{¶ 25} In connection with the Board’s proceedings, appellant agreed to be seen by

Dr. Magnuson in July 2021. Dr. Magnuson testified he “was asked to evaluate [appellant’s]

cognitive functioning as it pertains to his ability to practice medicine.” (Tr. Vol. II at 202.)

{¶ 26} In order to assess appellant’s cognitive abilities, Dr. Magnuson interviewed

appellant, administered a battery of tests and submitted a report to the Board, which was

admitted into evidence as State’s exhibit 15. According to Dr. Magnuson, the purpose of the

neurological testing is to “reflect [appellant’s] brain functioning relative to other

approximately 75- to 79-year-olds.” (Tr. Vol. II at 230.) He added that “age-related

cognitive decline is normal and to be expected.” (Tr. Vol. II at 230.) In his report,

Dr. Magnuson stated that appellant “demonstrated a decline in cognitive functioning on

certain measures of executive functioning, working memory, attention, and memory[, and]

No. 22AP-498 8

[h]is performances on these measures ranged from low average to exceptionally low (16th

percentile to 1st percentile).” (State’s Ex. 15 at 6.)

{¶ 27} Dr. Magnuson explained that on the Wisconsin Card-Sorting Test, a test

designed to assess executive functioning, appellant scored at the very bottom of his age

group. See State’s Ex. 15. Dr. Magnuson added that “I specifically chose this test because I

think this is -- it’s very translatable in terms of what a physician does and how they apply

the scientific method.” (Tr. Vol. II at 221.) The results of the Ray Complex Figure Test,

which tests delayed recall by asking the subject to recall shapes after a short period of time,

showed appellant scored in the 27th percentile when compared to others in his age group.

{¶ 28} Dr. Magnuson reported to the Board that the test results reveal deficits in

appellant’s capacity for learning new information, which could affect his ability to conduct

a clinical interview, integrate new information, generate and alter hypotheses, and

multitask. Dr. Magnuson diagnosed appellant with “Mild Cognitive Disorder.” (State’s Ex.

15 at 6.) In the report, Dr. Magnuson opined that appellant “is presently not capable of

practicing medicine according to acceptable and prevailing standards of care due to the fact

that he has a mild neurocognitive disorder.” (State’s Ex. 15 at 6.) Similarly, Dr. Scharre was

unable to establish the etiology of appellant’s neurological disorder, and he added that such

disorders “remain relatively stable, but they generally do not improve.” (State’s Ex. 15 at 6.)

{¶ 29} Dr. Noffsinger is a forensic psychiatrist who is board certified in psychiatry

and forensic psychiatry by the American Board of Psychiatry and Neurology. He currently

has a psychiatry practice, consults for two state psychiatric hospitals, and serves as a

professor of psychiatry at the University Hospitals of Cleveland, among other positions.

Dr. Noffsinger testified he is on the faculty where he teaches a course of law and psychiatry

at the Case Western Reserve School of Law and the University of Akron School of Law.

{¶ 30} Dr. Noffsinger explained that “[f]orensic psychiatry is a subspecialty within

psychiatry which includes the evaluation of psychiatric matters in a legal context.” (Tr. Vol.

I at 20-21.) He testified he has conducted mental impairment evaluations for the Board for

more than 20 years. Dr. Noffsinger estimated that he performs 5 or 6 such evaluations

annually, and he has found no impairment in approximately 1 out of 3 cases.

{¶ 31} According to Dr. Noffsinger, the Board asked him to answer the following

three questions relative to appellant’s competency:

No. 22AP-498 9

These come straight out of the Revised Code, so whether there

was any evidence that the physician has a mental disorder or

other psychopathology. That’s the first question.

Second question is: If the answer to the first question is yes,

then whether the physician is able to practice medicine

according to acceptable and prevailing standards of care, and

if any condition should be placed upon their practice.

And the third question is, getting back to the first question: If

the answer is in the affirmative, whether the disorder is

treatable and a plan of treatment would recommend based on

the physician’s treatment needs.

(Tr. Vol. I at 31-32.)

{¶ 32} Dr. Noffsinger evaluated appellant on December 12, 2020. He conducted a

one-hour virtual interview of appellant, reviewed appellant’s medical records, and

considered the complaints received by the Board. Dr. Noffsinger acknowledged he has not

investigated the facts underlying the specific complaints made to the Board. The videotape

of the interview was admitted at the hearing as State’s exhibit 4. In his report to the Board,

Dr. Noffsinger opined that appellant suffers from an unspecified neurocognitive disorder

that renders appellant incapable of practicing medicine according to acceptable and

prevailing standards of care. Dr. Noffsinger further opined that appellant’s cognitive

deficiencies would impair his ability to conduct thorough and accurate patient interviews

and physical examinations, limit his ability to integrate information from these evaluations

to form accurate diagnoses and appropriate treatment plans, and reasonably and reliably

interact with other healthcare professionals. According to Dr. Noffsinger, appellant’s

disorder is progressive in nature and may be slowed by certain treatment but not cured.

Dr. Noffsinger’s report to the Board was admitted into evidence as State’s exhibit 3.

{¶ 33} At the hearing, Dr. Noffsinger testified that after reviewing the

neuropsychological testing performed by Dr. Magnuson, he amended his diagnosis from

unspecified neurocognitive disorder to mild neurocognitive disorder, which is further along

the spectrum of cognitive disorders and is characterized by a greater degree of cognitive

impairment. Dr. Noffsinger agreed with Dr. Scharre that appellant’s cognitive impairment

is not the result of dementia, but he disagreed as to the extent of the impairment. He also

disagreed with the diagnosis of ADHD. Dr. Noffsinger believed that Dr. Scharre

No. 22AP-498 10

misdiagnosed appellant because he discounted the results of the neurological testing

performed by Dr. Flexman in 2009 and by Dr. Magnuson in July 2021.

{¶ 34} The Board also heard the testimony of Dr. Erickson. Dr. Erickson has

diagnosed appellant with hypertension, high cholesterol, and adult-onset diabetes mellitus.

Dr. Erickson inherited many of appellant’s patients when appellant was suspended in

March 2021. Dr. Erickson issued a report on February 12, 2021. His report provides in

relevant part as follows:

He is a 78 y.o. male with a life long history of being absent

minded and having symptoms of attention deficit disorder.

He was always a bit hyperactive and had some attentional

issues from childhood. He was never diagnosed with

ADD/ADHD in the past. There is no evidence of a progressive

cognitive disorder.

(State’s Ex. 2 at 1.)

{¶ 35} Dr. Erickson testified he did not believe appellant suffered from ADHD as

diagnosed by Dr. Scharre, but he did describe appellant as “eccentric.” (Tr. Vol. III at 551.)

{¶ 36} Appellant testified extensively at the hearing. On cross-examination,

appellant told the hearing examiner he has been unable to figure out why the Board

initiated proceedings to revoke his medical license. When asked about the reason a local

hospital had questions about his competency in 2009, appellant went on, what can be fairly

described as a long-winded and largely non-responsive rant, about the lack of medical

ethics and the poor quality of medical care fostered by corporate management systems in

the hospital setting. Our review of appellant’s hearing testimony and his interview with

Dr. Noffsinger reveals that appellant frequently answered relatively straight forward

questions in this same fashion.

{¶ 37} Appellant strongly disagreed with the medical opinions of Drs. Noffsinger

and Magnuson regarding his competency. Appellant also disagreed with several

observations made by Dr. Scharre in his medical records. For example, appellant disagreed

with Dr. Scharre’s comments in his 2009 progress notes that appellant “does have some

significant cognitive and neuropsychiatric symptoms,” and he denied Dr. Scharre’s

assertion that “[h]e does forget patient names often * * *, is occasionally asking the same

questions repeatedly, [and] that is slightly worse in the last 5 years.” (State’s Ex. 16 at 2.)

No. 22AP-498 11

{¶ 38} Our review of the Board’s minutes reveals that the Board members,

particularly Dr. Michael Schottenstein, a psychiatrist, found the testimonies of

Drs. Noffsinger and Magnuson to be more persuasive than the testimonies of Drs. Scharre

and Erickson. With regard to the diagnosis of mild neurocognitive disorder,

“Dr. Schottenstein opined that the diagnosis is non-controversial. Dr. Darr meets the

criteria for the diagnosis and two autonomous Board experts independently came to the

same conclusion.” (Dec. 8, 2021, Board Meeting Minutes (“Meeting Minutes”) at 4.)

{¶ 39} Dr. Schottenstein noted appellant’s performance on many of the neurological

tests administered by Dr. Magnuson “ranged from low average to exceptionally low.”

(Meeting Minutes at 4.) Dr. Schottenstein stated that appellant’s “neuropsychological

assessments substantially corroborate the nature of the complaints the Board has received

over a period of years regarding his behavior.” (Meeting Minutes at 4.) He also explained

why he was not impressed by the testing performed by Dr. Scharre:

[T]hose tests are not good tools to screen or evaluate for

changes over time for mild neurocognitive disorder. The way to

make the distinction between mild neurocognitive disorder

and normal age-related cognitive decline is with

neuropsychological testing; if the testing shows cognitive

decline that is substantially more severe than one would expect

for one’s age and level of education, then that is compelling.

(Meeting Minutes at 5.)

{¶ 40} Dr. Schottenstein concluded that “[c]ombined with the history of concerning

behavior and Dr. Darr’s own presentation, Dr. Schottenstein stated that he regrettably had

no choice other than to support the Proposed Order to permanently revoke Dr. Darr’s

medical license.” (Meeting Minutes at 5.)

{¶ 41} Several Board members, including Mr. Giacalone, Dr. Kakarala, and

Dr. Feibel expressed the opinion that the video of appellant’s interview with Dr. Noffsinger

supported the conclusion that appellant is incapable of practicing medicine in accordance

with acceptable and prevailing standards of care by reason of a mild neurocognitive

disorder that adversely affects his cognitive skills. For example, Dr. Kakarala concluded that

“the hearing transcript and the video of the interview with Dr. Noffsinger demonstrates that

there is enough concern in a multitude of areas to support the permanent revocation of

Dr. Darr’s license.” (Meeting Minutes at 7.) After viewing the interview with Dr. Noffsinger,

No. 22AP-498 12

Dr. Feibel concluded that appellant “had been cognitively acute in parts of it, but there were

other parts in which he was not.” (Meeting Minutes at 6.) Mr. Giacalone acknowledged that

he is not a physician, but upon reading the hearing transcript and viewing the video, “it was

very apparent that Dr. Darr could not answer questions in a straight-forward manner and

would go off on a tangent.” (Meeting Minutes at 6.)

{¶ 42} Board members also noted the slow cadence of appellant’s answers to

questions and his inability to focus on the question at hand as evidence his brain is not

functioning at the level required of a physician practicing medicine. Indeed, the hearing

transcript reveals when asked during the interview about his hospital privileges, appellant

went off on a tangent about the hospital’s ethical structure and his philosophical beliefs

about the practice of medicine.

{¶ 43} Appellant argues the weight of the evidence does not support the Board order

in that he performed well on both the Folstein Mini-Mental Examination administered by

Dr. Noffsinger, and certain cognitive tests performed by Dr. Scharre. However, a review of

the evidence presented at the hearing shows appellant performed very poorly in relation to

others in his age group on a number of other tests administered by Dr. Magnuson.

Moreover, as Dr. Schottenstein noted in the Board minutes, the testing performed by

Dr. Magnuson was germane to a determination of neurocognitive disorders whereas the

tests performed by Drs. Scharre and Noffsinger were designed to detect dementia, a

condition which all of the experts agree is not present in appellant’s case.

{¶ 44} Appellant next contends there was no evidence presented to support a finding

that his alleged cognitive impairment is progressive in nature. In support of this argument,

appellant relies on testimonies of Drs. Scharre and Erickson who opined that they have

observed no progression in appellant’s cognitive deficits over the years appellant has been

their patient. Dr. Schottenstein, however, expressed skepticism about this testimony given

the fact that both of these physicians had a long-term relationship with appellant that would

have made it more difficult to objectively report cognitive decline. Moreover, the evidence

establishes the diagnosis of mild neurocognitive disorder made by Drs. Noffsinger and

Magnuson is further along the spectrum of cognitive impairment than the diagnosis of mild

cognitive impairment made by Dr. Flexman in 2009.

No. 22AP-498 13

{¶ 45} Here, all seven voting Board members voted to adopt the hearing officer’s

recommendation and permanently revoke appellant’s license to practice medicine. There

was no dissent.

{¶ 46} The Board minutes reflect the Board members sincere belief that the case was

a close one and appellant bears no fault for his condition. Indeed, Dr. Feibel commented

that appellant’s case was the most difficult case he has reviewed since being on the Board.

Yet, after reviewing the evidence, Dr. Feibel concurred with the recommendation of the

hearing officer.

{¶ 47} The issue for this court on appeal is not whether the testimonies of Drs.

Scharre and Erickson is more credible or more persuasive than testimonies of Drs.

Magnuson and Noffsinger. Rather, our standard of review in this appeal requires a

determination whether the trial court abused its discretion in finding that the testimonies

of Drs. Magnuson and Noffsinger constitutes reliable, probative, and substantial evidence

in support of the Board’s order. We find no abuse of discretion in this case.

{¶ 48} There is no dispute in this case that Drs. Magnuson and Noffsinger were

qualified to offer an expert opinion on appellant’s competency. The opinion testimony of

these two experts was relevant, consistent, and unequivocal on that critical issue.2 The trial

court concluded that the hearing officer and the Board considered the weight and credibility

of the competing medical opinions offered by Drs. Scharre and Erickson and determined

that the testimonies of Drs. Magnuson and Noffsinger was more persuasive. After carefully

reviewing the record in this case, we cannot say the trial court abused its discretion in

concluding that the expert opinion testimonies of Drs. Scharre and Noffsinger constituted

reliable, probative, and substantial evidence in support of the Board’s order.

{¶ 49} For the foregoing reasons, we hold that the trial court did not err in affirming

the Board’s order. Appellant’s sole assignment of error is overruled.

2In M. M. v. State Med. Bd. of Ohio, 10th Dist. No. 18AP-839, 2020-Ohio-360, this court affirmed a Board

decision limiting a medical license under R.C. 4731.22(B)(19), based primarily on the opinion testimony of

Dr. Noffsinger. See also Taylor v. State Med. Bd. of Ohio, 10th Dist. No. 10AP-262, 2010-Ohio-5560, and

Flynn v. State Med. Bd. of Ohio, 10th Dist. No. 16AP-29, 2016-Ohio-5903.

No. 22AP-498 14

V. CONCLUSION

{¶ 50} Having overruled appellant’s sole assignment of error, we affirm the

judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

BOGGS and EDELSTEIN, JJ., concur.

_____________

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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