D'Souza v. State Med. Bd. of OhioD'Souza v. State Med. Bd. of Ohio
Rendered on December 29, 2009
Dinsmore & Shohl, LLP, Eric J. Plinke and Nicole M. Loucks, for appellant.
Richard Cordray, Attorney General, and Kyle C. Wilcox, for appellee.
APPEAL from the Franklin County Court of Common Pleas.
BRYANT, J.
{¶1} Appellant, Leo D‘Souza, M.D., appeals from a judgment of the Franklin County Court of Common Pleas affirming the order of appellee, State Medical Board of Ohio (“the Board“), that permanently revoked appellant‘s certificate to practice medicine. Because the common pleas court did not abuse its discretion in concluding both that substantial, reliable, and probative evidence supports the Board‘s order and that the Board‘s order is not contrary to law, we affirm.
I. Procedural History
{¶2} On August 9, 2007, the Board issued a notice of hearing to appellant proposing to take disciplinary action against his certificate to practice medicine and surgery in Ohio. The Board alleged that appellant violated: (1)
{¶3} At a hearing commencing December 17, 2007, the Board provided testimony from Patients 1, 3, and 5, each of whom testified appellant, on at least one occasion, touched his genitals with an ungloved hand. Patient 4‘s mother stated her son told her appellant touched her son‘s genitals during an office visit but never suggested any follow-up or referral for her son‘s physical health issues. Patient 4‘s mother also testified appellant told her, without ever having examined Patient 4‘s sister, she could give some of Patient 4‘s prescription medication to his younger sister.
{¶4} By contrast, appellant stated he never physically touched the patients’ genitalia but conducted visual-only genital exams for the purpose of determining whether the patients had sexually transmitted diseases or Fragile X Syndrome, a condition that includes, as an indicator, larger than normal testicles. According to appellant‘s testimony,
{¶5} In terms of expert testimony, the Board provided the testimony of Dr. Peter J. Geier, a psychiatrist in private practice. Dr. Geier testified, to a reasonable degree of medical certainty, that appellant‘s conduct with regard to the five patients represented a departure from, or failure to conform to, the minimal standard of care. Appellant responded with the testimony of Dr. Bernard DeSilva, a psychiatrist, and Dr. Luis Pagani, a neurologist, both of whom stated appellant‘s conduct was within the minimal standard of care. In total, appellant called 18 witnesses to rebut the charges against him.
{¶6} On April 3, 2008, the Board‘s Hearing Examiner filed a Report and Recommendation. After reviewing the record from the hearing, the Board, at a May 14, 2008 meeting, rendered an Entry of Order approving and confirming the recommendation of the Hearing Examiner to permanently revoke appellant‘s certificate to practice medicine and surgery in Ohio. Appellant appealed from the Board‘s order to the Franklin County Court of Common Pleas on May 19, 2008 and requested a stay of the Board‘s order pending his appeal.
{¶7} After denying appellant‘s motion for stay pending appeal, the common pleas court on December 29, 2008, issued a judgment affirming the Board‘s decision to permanently revoke appellant‘s certificate. Appellant timely appealed from the judgment of the common pleas court; the Board in response filed a motion to dismiss for lack of jurisdiction pursuant to Civ.R. 12(B)(2) and
II. Motion to Dismiss
{¶8} Even though the Board raises its jurisdictional issue for the first time on appeal, subject matter jurisdiction cannot be waived and may be raised at any time. See, e.g., State ex rel. Bond v. Velotta, 91 Ohio St.3d 418, 419, 2001-Ohio-91; In re King (1980), 62 Ohio St.2d 87, 88-89. The Board‘s motion to dismiss for lack of jurisdiction is premised on the language of
{¶9} To support its argument, the Board relies on Medcorp, Inc. v. Ohio Dept. of Job & Family Servs., 121 Ohio St.3d 622, 2009-Ohio-2058 (“Medcorp I“) where the Supreme Court held that “to satisfy the ‘grounds of the party‘s appeal’ requirement in
{¶10} After the Board filed its motion to dismiss for lack of jurisdiction, the Supreme Court reconsidered its Medcorp I decision. In Medcorp v. Ohio Dept. of Job & Family Servs. (Dec. 15, 2009), 2009-Ohio-6425 (“Medcorp II“), the Supreme Court clarified that “[t]he holding in Medcorp I shall apply only to cases filed on and after
{¶11} Accordingly, we deny the Board‘s motion to dismiss for lack of jurisdiction.
III. Assignments of Error
{¶12} On appeal, appellant assigns three errors:
First Assignment of Error: The trial court‘s decision is in error because the Board‘s order is contrary to law and not supported by substantial, probative and reliable evidence where it is based on witnesses who did not provide reliable evidence and could not be confidently trusted.
Second Assignment of Error: The trial court erred in affirming the Board‘s order despite the order being contrary to law as to its finding that appellant violated O.A.C. 4731-26-02(A) constituting sexual misconduct.
Third Assignment of Error: The trial court‘s decision is in error because the Board‘s order is contrary to law and not supported by substantial, reliable, and probative evidence where it finds appellant violated medical ethics and deviated from the minimal standards of care for conducting an examination within his scope of practice.
{¶13} Under
{¶14} An appellate court‘s review of an administrative decision is more limited than that of a common pleas court. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621. The appellate court is to determine only whether the common pleas court abused its discretion. Id.; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219 (defining an abuse of discretion). Absent an abuse of discretion, a court of appeals may not substitute its judgment for that of an administrative agency or the common pleas court. Pons at 621. An appellate court, however, has plenary review of purely legal
V. First Assignment of Error – Witness Credibility
{¶15} In his first assignment of error, appellant asserts the common pleas court abused its discretion in affirming the Board‘s order because the Board relied on witnesses who lacked credibility. Specifically, appellant points to the Hearing Examiner‘s Report and Recommendation in which the Hearing Examiner states she did not “completely believe either side‘s testimony as to what happened; rather, she has found portions of each side‘s evidence to be credible.” (Order, Report and Recommendation, 49.) Based on the Hearing Examiner‘s statement, appellant argues that substantial, probative, and reliable evidence necessarily does not support the Board‘s order.
{¶16} The common pleas court did not abuse its discretion in giving deference to the Board‘s findings. The Hearing Examiner considered the testimony of all six of the Board‘s witnesses and all 18 of appellant‘s witnesses. Moreover, the Hearing Examiner stated “[a]ll exhibits, even if not specifically mentioned, were thoroughly reviewed and considered by the Hearing Examiner prior to preparing” her recommendation. (Order, R&R, 6.) Only after reviewing the entire record did the Hearing Examiner conclude “that, on numerous occasions, [appellant] failed to conform to the minimal standard of care, violated the Principles of Medical Ethics, and engaged in sexual misconduct with patients.” (Order, R&R, 49.) See also Arlen v. State Med. Bd. of Ohio (1980), 61 Ohio St.2d 168, 172-73 (stating “[t]he distinguished medical board is capable of interpreting technical requirements of the medical field and is quite capable of determining when certain conduct falls below a reasonable standard of medical care“).
{¶17} While appellant challenges the Hearing Examiner‘s statement that she “does not completely believe either side‘s testimony as to what happened,” the common pleas court explained that her approach still “comports with accepted methodology in fact finding.” (Decision, 4.) As the common pleas court properly noted, the finder of fact “may take note of the inconsistencies and resolve them accordingly, ‘believ[ing] all, part or none of a witness‘s testimony.’ ” State v. Pilgrim, 10th Dist. No. 08AP-993, 2009-Ohio-5357, ¶32, quoting State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill (1964), 176 Ohio St. 61, 67; Parsons v. Washington State Community College, 10th Dist. No. 05AP-1138, 2006-Ohio-2196, ¶21. Moreover, noting especially the Hearing Examiner‘s “expansive recitation of the evidence,” the common pleas court examined the record and concluded the Hearing Examiner‘s findings of fact “have ample support in the record by reliable, probative, and substantial evidence.” (Decision, 5.)
{¶18} The common pleas court thus examined the entire record and, deferring to the Board‘s resolution of the conflicting evidence, found substantial, reliable, and probative evidence to support the Board‘s findings through its Hearing Examiner. Appellant points to nothing that indicates the common pleas court abused its discretion in so doing, other than to disagree with the underlying credibility determinations. On this record, appellant‘s suggestion that we further consider witness credibility is not appropriate for this court‘s role in reviewing the common pleas court‘s decision. Accordingly, we overrule appellant‘s first assignment of error.
VI. Second Assignment of Error – Ohio Adm.Code 4731-26-02(A)
{¶19} Appellant next asserts the common pleas court erred in affirming the Board‘s order because the finding that appellant violated
{¶20} Because
{¶21} Contrary to appellant‘s testimony, Patient 3 testified appellant lifted Patient 3‘s penis and touched his testicles while appellant was not wearing gloves. Indeed, Patient 3 testified appellant was the one who raised the issue of sexually transmitted diseases and offered to check for any signs of those diseases. Acknowledging Patient 3‘s testimony, appellant dismisses it by claiming it is not reliable because psychiatric patients are prone to lying and to distorting reality.
{¶22} At best, appellant asks this court to conclude the common pleas court abused its discretion in refusing to resolve the conflicting evidence differently than did the Board. At worst, appellant suggests a psychiatric patient‘s testimony as a matter of law is
{¶23} Here, the Hearing Examiner specifically found that “[o]n December 4, 2006, when Patient 3 was 19 years old, [appellant] examined Patient 3‘s genitalia with ungloved hands during a psychiatric office visit for the purpose of determining if Patient 3 was infected with a sexually transmitted disease.” (Order, R&R, 44.) Adopting the Hearing Examiner‘s factual finings, the Board further adopted the Hearing Examiner‘s reliance on the expert opinion of Dr. Geier, who testified the appropriate standard of care for a psychiatrist in appellant‘s position would have been to refer these patients to a primary care physician or a urologist to perform such examinations if they were medically necessary. With those predicates, the Hearing Examiner found, and the Board agreed, that appellant had “no acceptable reason * * * to have examined these patients’ genitalia while they were in his office for psychiatric care and treatment.” (Order, R&R, 49.)
{¶24} The Hearing Examiner‘s factual findings are sufficient to support the requisite findings under
VII. Third Assignment of Error – Medical Ethics and Standard of Care
{¶25} In his third assignment of error, appellant contends the common pleas court erred in affirming the Board‘s decision because substantial, reliable, and probative evidence does not support the Board‘s findings that appellant violated medical ethics and deviated from the minimal standard of care. Specifically, appellant asserts (1) the Board‘s expert, Dr. Geier, had no basis for his opinion that appellant violated medical ethics, and (2) the common pleas court‘s decision is contrary to law because it impermissibly limits the scope of practice of a licensed psychiatrist.
{¶26}
{¶27} Although appellant offered contrary opinion testimony, his testimony does not detract from the Board‘s finding that appellant violated the AMA‘s ethics code, as the Board is charged with giving appropriate weight to conflicting testimony. See, e.g., Conrad at 111. Substantial, reliable, and probative evidence supports the Board‘s
{¶28} Appellant nonetheless contends the common pleas court‘s decision is contrary to law because it places impermissible limitations on the scope of a psychiatrist‘s practice. Appellant argues psychiatrists are licensed physicians subject to the same licensing examination and training requirements as all other physicians. Appellant contends that, with that training, a psychiatrist‘s conducting a physical examination is appropriate as a fundamental component of medicine. Relying on
{¶29} Appellant‘s argument is unpersuasive. Although appellant met the licensing requirements of the state of Ohio, a standard of care exists in his chosen specialty. Dr. Geier testified the standard of care involves referring patients requiring genital exams to either their primary care physicians or urologists. According to Dr. Geier, even a visual examination is below the standard of care if conducted on a minor patient unaccompanied by a parent or guardian. Were Dr. Geier‘s testimony alone insufficient, the record also indicates appellant‘s office at CCS was not equipped for conducting physical or genital examinations, as the room did not have a sterile examination table, sink or sterile gloves. Moreover, although appellant was a licensed physician, his being licensed did not permit him to conduct any and all medical procedures, as indicated in the testimony of Dr. Geier. The patients at issue presented for psychiatric counseling and
{¶30} In the end, appellant‘s contention that the standard of care does not differ between and among the many specialties of medical practice leads to an unsupportable conclusion. What is within the standard of care for a cardiothoracic surgeon will not be the same as for a pediatrician, a podiatrist or a psychiatrist, even though all are subject to the same licensure requirements of the state. The Board‘s order did not usurp the legislative function; rather, it found appellant‘s conduct fell below the accepted standard of care for a psychiatrist practicing in an outpatient setting. The common pleas court did not err in affirming that decision, and we overrule appellant‘s third assignment of error.
VIII. Disposition
{¶31} In sum, the common pleas court did not abuse its discretion in affirming the Board‘s order, as substantial, reliable, and probative evidence supports that order, and it is in accordance with law. Having overruled appellant‘s three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Motion denied; judgment affirmed.
SADLER and TYACK, JJ., concur.
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