Menkes v. State Med. Bd. of Ohio
159 N.E.3d 900
Ohio Ct. App.2020Background:
- Alan L. Menkes, D.O., sought restoration of his Ohio osteopathic license in July 2015, stating he would practice telemedicine only.
- He held multiple state licenses but omitted an expired Oregon license from the Ohio application; he also answered "no" when asked whether any board had limited any of his licenses.
- In 1988 Menkes requested a voluntary limitation of his Oregon license (office-based practice only) under O.R.S. 677.410; Oregon administratively approved the voluntary limitation; the Oregon license expired in 1994. Menkes later attempted (2014–2015) to reactivate the Oregon license but withdrew the application.
- The Ohio State Medical Board charged Menkes with violations of R.C. 4731.22(B)(22) (out-of-state licensing action) and (B)(5) (false/misleading statement) for failing to disclose the Oregon limitation and the Oregon license.
- A hearing examiner recommended restoration of Menkes’ Ohio license and reprimand for both violations. The common pleas court affirmed restoration but reversed the reprimands. The Ohio board appealed.
Issues:
| Issue | Plaintiff's Argument (Ohio Board) | Defendant's Argument (Menkes) | Held |
|---|---|---|---|
| Whether Oregon's approval of a voluntary limitation qualifies as an action "taken by" the Oregon board under R.C. 4731.22(B)(22) | Oregon's approval of the voluntary limitation is an agency action limiting a license and thus falls within B(22) | The limitation was self-requested by Menkes under O.R.S. 677.410; Oregon merely granted his request and did not impose a disciplinary restriction | The court held the Oregon approval was not an action "taken by" the board for purposes of R.C. 4731.22(B)(22); reprimand under B(22) was not in accordance with law (reversed) |
| Whether Menkes’ omission of his Oregon license and answer "no" to board-limitation question showed intent to mislead under R.C. 4731.22(B)(5) | Surrounding circumstances (recent communications with Oregon about the limitation, the omission of only the limited state, and Menkes’ review/signature of the application) permit an inference of intent to deceive | Omission was inadvertent; a licensing employee filled parts of the form from Menkes’ CV (which did not list Oregon); Menkes denied intent to mislead | The court held there was reliable, probative, and substantial evidence from which intent could be inferred and therefore sustained the reprimand under R.C. 4731.22(B)(5) (common pleas court abused its discretion in reversing) |
Key Cases Cited
- Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108 (1980) (standard for common pleas review of administrative records)
- Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570 (1992) (definition of reliable, probative, and substantial evidence)
- Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619 (1993) (appellate scope of review of administrative decisions)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (definition of abuse of discretion)
- State ex rel. Taxpayers for Westerville Schools v. Franklin Cty. Bd. of Elections, 133 Ohio St.3d 153 (2012) (statutory interpretation principles)
- Cline v. Ohio BMV, 61 Ohio St.3d 93 (1991) (plain-meaning rule in statutory interpretation)
- Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466 (1993) (deference to administrative factfinding and limits on such deference)