de Bourbon v. State Med. Bd., 2018 Ohio 4682

Background

Dr. Ernest B. de Bourbon, a licensed physician, was charged by the State Medical Board of Ohio with falling below the standard of care for two patients: Patient 1 (post‑liposuction disfigurement) and Patient 2 (death from pulmonary embolism during fat transfer). Hearings occurred in 2016 with testimony from the board’s expert (Dr. Lewis) and appellant’s expert (Dr. Borsand).
The hearing examiner recommended a minimum 180‑day suspension, monitoring, and a permanent ban on performing liposuction; the Board adopted the recommendation but increased the minimum suspension to 365 days.
De Bourbon appealed to the Franklin County Court of Common Pleas, which affirmed the Board’s order; he then appealed to the Tenth District, raising four assignments of error challenging evidentiary sufficiency, notice/due process, refusal to disclose Quality Intervention Program (QIP) records, and the legality of imposed monitoring/practice plan conditions.
The court reviewed whether the Board’s order was supported by reliable, probative, and substantial evidence under R.C. 119.12 and whether legal errors or due‑process violations occurred in the administrative process.
The Tenth District rejected de Bourbon’s challenges to the Board expert’s credibility and methodology, upheld findings that his care of both patients fell below the minimal standard of care (including staging, monitoring/recordkeeping, and injection technique causation), and affirmed the sanctions, including monitoring and a ban on liposuction.

Issues

Issue	Plaintiff's Argument (de Bourbon)	Defendant's Argument (Board)	Held
1. Sufficiency of evidence to support finding of substandard care	Board’s expert testimony was unreliable, improperly mixed standards, used guesses, lacked relevant experience, and evidence did not prove causation	Expert testimony and contemporaneous records, admissions, and follow‑up surgeons’ reports provided reliable, probative, substantial evidence of violations and causation	Court affirmed: record contains reliable, probative, substantial evidence; credibility and weight are for the Board/common pleas court to decide
2. Notice/due process re: training/experience allegation	Board relied on appellant’s lack of training/experience in sanctions though it did not formally charge him under the applicable regulation; this denied fair notice under R.C. 119.09 and due process	Board argued its comment was a factual/concluding observation drawn from testimony and did not create a new charge; appellant testified about training so Board could reference it	Court rejected claim: Board may discuss or draw conclusions from evidence even if it did not plead a separate violation
3. Access to QIP records	QIP materials showing no finding should have been producible; denial impaired appellant’s ability to defend	Board asserted QIP/investigative files are confidential under R.C. 4731.22(F)(5) and third‑party privileges (patients, witnesses, Board) prevent disclosure	Court held Board did not err: QIP files are privileged and cannot be unilaterally waived by the Board absent waiver by all privilege holders
4. Legality of practice‑plan/monitoring conditions	Imposed monitoring and practice plan (and permanent liposuction ban) are improper under Eastway when sanctions impose conditions not tied to charged impairment or evidence	Board has broad statutory authority to impose a range of sanctions including monitoring and practice plans when record shows departures from minimal standards across practice	Court distinguished Eastway and upheld sanctions: record supports scrutiny of overall practice and monitoring is authorized and appropriate

Key Cases Cited

Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108 (administrative orders reviewed for reliable, probative, substantial evidence and whether in accordance with law)
Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619 (appellate review of common pleas court’s administrative‑record decision limited to abuse of discretion)
Blakemore v. Blakemore, 5 Ohio St.3d 217 (standard for abuse of discretion review)
Estate of Hall v. Akron Gen. Med. Ctr., 125 Ohio St.3d 300 (a recognized complication does not preclude negligence finding)
Stinson v. England, 69 Ohio St.3d 451 (definition and meaning of opinions expressed to a reasonable degree of medical probability)
State ex rel. Wallace v. State Med. Bd. of Ohio, 89 Ohio St.3d 431 (confidentiality privileges in Board investigative files and limits on unilateral waiver)
Lies v. Ohio Veterinary Med. Bd., 2 Ohio App.3d 204 (common pleas court must appraise credibility, probative character, and weight of administrative evidence)
Andrews v. Bd. of Liquor Control, 164 Ohio St. 275 (administrative fact‑finding standard on evidence appraisal)
In re Eastway, 95 Ohio App.3d 516 (Tenth Dist. case on limits of imposing unrelated treatment conditions as reinstatement prerequisites)