Brownlee v. State Med. Bd., 2013 Ohio 4989

Background

Dr. John D. Brownlee, licensed in Ohio since 1998, previously had substance-abuse-related discipline and entered inpatient treatment for opiate dependence in 2006 after self-prescribing and falsifying prescriptions.
In 2006 he entered a Step I consent agreement suspending his license; in 2007 a Step II agreement reinstated his license under at least five years probation with monitoring, abstinence, random drug screens, and a requirement to obey laws and Board rules.
In 2010, while an attending and SICU director at Huron Hospital (Cleveland Clinic Foundation), Brownlee asked resident physicians under his supervision to write or call in opioid prescriptions (Vicodin, Percocet, hydrocodone/acetaminophen) for a family member (Patient 1) without residents personally examining the patient.
Brownlee admitted in interrogatories and at hearing that he requested multiple such prescriptions (initially eight, later acknowledging two more).
The Board held a hearing, the hearing examiner found the residents credible and Brownlee not credible, recommended permanent revocation, and the Board adopted that recommendation. Brownlee appealed to common pleas court, which affirmed; this appeal follows.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Board order was supported by reliable, probative, and substantial evidence	Brownlee: residents’ testimony was unreliable (conflicts with prior affidavits), witnesses were coached, CCF counsel obstructed, and monitoring physician undermined findings	Board: residents’ live testimony and Brownlee’s own admissions provide reliable, probative, substantial evidence; coaching/objections did not destroy credibility	Court: affirmed—evidence reliable and substantial; Brownlee’s admissions dispositive; no abuse of discretion
Selective enforcement / ADA claim	Brownlee: residents who wrote prescriptions were not disciplined, so Board selectively enforced against him; ADA (disparate treatment) implicated	Board: residents not similarly situated (Brownlee was supervisor who deceived residents; he admitted multiple incidents and had consent-agreement restrictions)	Court: affirmed—Brownlee and residents not similarly situated; prima facie selective-enforcement claim fails; ADA argument unnecessary
Whether hearing examiner erred in denying post-commencement subpoenas under Board rules	Brownlee: Board lacked authority or examiner misapplied rule to issue subpoenas after hearing commenced	Board/hearing examiner: acted within procedures; trial court was not asked to interpret the particular post-commencement rule on appeal	Court: affirmed—no preserved error; no abuse of discretion or legal error in refusing to grant late subpoenas
Standard of review and deference to administrative findings	Brownlee: asks reversal based on credibility and weight	Board: trial court and hearing examiner entitled to deference on credibility; appellate review limited to abuse of discretion regarding factual findings; plenary review only on legal questions	Court: applied proper standards (deference to credibility; limited appellate review) and affirmed

Key Cases Cited

Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108 (Ohio 1980) (administrative fact-findings merit deference on evidentiary conflicts)
Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570 (Ohio 1992) (defines "reliable, probative, and substantial" evidence)
Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn., 63 Ohio St.3d 705 (Ohio 1992) (appellate courts must not reweigh administrative evidence)
Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339 (Ohio 1992) (plenary review on questions of law)
Cleveland v. Trzebuckowski, 85 Ohio St.3d 524 (Ohio 1999) (framework for selective/discriminatory prosecution defense)
State v. Flynt, 63 Ohio St.2d 132 (Ohio 1980) (elements for selective prosecution claim)
State v. Lang, 129 Ohio St.3d 512 (Ohio 2011) (selective enforcement/analysis of prima facie burden)