604 N.E.2d 212 | Ohio Ct. App. | 1992
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *196 This is an appeal by appellant, Anne D. DeBlanco, M.D., from a judgment of the Franklin County Court of Common Pleas affirming an order of the Ohio State Medical Board revoking her license to practice medicine and surgery. In support of her appeal, DeBlanco raises four assignments of error, as follows:
"1. Ohio Revised Code Section
"2. Ohio Revised Code Section
"3. Ohio Revised Code Section
"4. The findings of the State Medical Board were not supported by reliable, probative, and substantial evidence; and therefore, the decision to *197 revoke appellant's license violated the due process provisions of the federal and state constitutions."
Although the second and third assignments of error read identically, in the argument portion of the brief, DeBlanco contends by the latter that R.C.
The underlying facts are that DeBlanco was convicted in the Franklin County Court of Common Pleas of forgery, theft, and Medicaid fraud following a bench trial. On November 16, 1989, she was sentenced to a one-year term of imprisonment on each count, but the imprisonment terms were suspended, and DeBlanco was placed on two years' probation and ordered to pay restitution in an amount to be determined by the probation department of the court. DeBlanco appealed her conviction to this court, resulting in a judgment of affirmance in State v.DeBlanco (July 30, 1991), Franklin App. No. 89AP-1493, unreported, 1991 WL 3625.
The first three assignments of error raise issues as to the constitutionality of the procedure contemplated by R.C.
By the first assignment of error, DeBlanco contends that R.C.
"At any adjudication hearing * * * which may be the basis of an appeal to court * * * the attorney general or any of his assistants or special counsel who have been designated by him shall represent the agency."
DeBlanco urges this court to find this statute unconstitutional both on its face and in its application to her in the case sub judice.
Although not cited by the parties, R.C.
"The attorney general is the chief law officer for the state and all its departments * * *. No state officer, board, or the head of a department or institution of the state shall employ, or be represented by, other counsel or attorneys at law. * * *"
R.C.
"The attorney general may appoint a first assistant attorney general, a chief counsel, and assistant attorneys general, each of whom shall be an attorney at law * * * and each shall perform such duties, not otherwise provided by law, as are assigned him by the attorney general."
Similarly, R.C.
"The attorney general may appoint special counsel to represent the state in civil actions, criminal prosecutions, or other proceedings in which the state is a party or directly interested. * * *"
R.C.
"The attorney general, when so requested, shall give legal advice to a state officer, board, commission * * * in all matters relating to their official duties."
The record reflects that the Assistant Attorney General who prosecuted the matter before the board played no adjudicative role with respect to advice to the board. Under R.C.
First, we find no facial unconstitutionality in R.C.
The second and third assignments of error are interrelated in that the issue raised is the constitutionality of the Ohio State Medical Board's choosing the hearing examiner presiding over the administrative hearing, pursuant to R.C.
R.C.
"The state medical board shall designate an attorney at law who has been admitted to the practice of law, and who is classified as either an administrative *199 law attorney examiner or as an administrative law attorney examiner administrator * * * as a hearing examiner, subject to Chapter 119. of the Revised Code, to conduct any hearing which the medical board is empowered to hold or undertake pursuant to Chapter 119. of the Revised Code. Such hearing examiner shall hear and consider the oral and documented evidence introduced by the parties and issue in writing proposed findings of fact and conclusions of law to the board for their consideration within thirty days following the close of the hearing."
It is this provision which DeBlanco contends is unconstitutional both facially and in its application. DeBlanco's objection is "that the board has its own counsel serving as prosecutor and designates the attorney of its choice to serve as the finder of fact." DeBlanco contends that this procedure deprives her of having a hearing before a neutral detached factfinder. DeBlanco cites only In re Murchison (1955),
With respect to the sole issue before us, the constitutionality of R.C.
DeBlanco also relies upon Konigsberg v. State Bar ofCalifornia (1957),
Nevertheless, we find no basis for determining that appellant DeBlanco has been denied her constitutional due process right to a proper hearing prior to revocation of her license to practice medicine. In this regard, we must first look to the charge against appellant DeBlanco — the misconduct of which she was found guilty. The charge was that:
"On or about September 18, 1989, you were found guilty in the Common Pleas Court of Franklin County of one (1) count of Medicaid fraud, a felony of *200
the third degree, in violation of Section
The evidence as to these convictions is overwhelming, appellant DeBlanco not even denying that she was so convicted. In short, it is difficult to find the basis for any factual matter committed to the hearing examiner for determination that could have been affected by the hearing examiner's having been appointed by the Ohio State Medical Board, even if there were somehow an impropriety in such an appointment relationship under some circumstances. R.C.
By the third assignment of error, appellant DeBlanco made similar contentions of unconstitutionality with respect to R.C.
However, we find no provision in R.C. Chapter 4731 precluding "reinstatement" of a doctor whose license has been revoked by issuing a new license to such person. A doctor whose license has been revoked may apply for relicensure to engage in the practice of medicine. See R.C.
"Any action taken by the board under division (B) of this section resulting in a suspension from practice shall be accompanied by a written statement of the conditions under which the certificate holder may be reinstated to practice. The board shall adopt rules governing conditions to be imposed for reinstatement. Reinstatement of a certificate suspended pursuant to division (B) of *201 this section requires an affirmative vote of not less than six members of the board."
The Ohio State Medical Board appears to argue that this provision applies only to physicians whose licenses have been suspended, rather than revoked, and that it has always considered revocation to be permanent and irreversible. However, as the medical board concedes, this court in Bouquett v. OhioState Medical Bd. (1991),
"The board, pursuant to an adjudicatory hearing * * * and by a vote of not less than six members, shall, to the extent permitted by law, limit, revoke, or suspend a certificate, refuse to register or refuse to reinstate an applicant, or reprimand or place on probation the holder of a certificate for one or more of the following reasons: * * *."
The two provisions serve different purposes. R.C.
Accordingly, R.C.
By the fourth assignment of error, appellant DeBlanco contends that the common pleas court abused its discretion in finding that the order of the Ohio State Medical Board is supported by reliable, probative, and substantial evidence. As to guilt of the charge itself, there is no question. Appellant DeBlanco concedes she was convicted of felonies but complains because the evidence consists solely of documents indicating that conviction of felony crimes. DeBlanco contends that the common pleas court should have considered evidence that indicated that the conduct which constituted the basis for her convictions was unintentional and also evidence that she was a competent practitioner delivering first-rate medical care to her patients. Such evidence is irrelevant to the basic issue of whether disciplinary action should be taken pursuant to R.C.
Since, as we indicated above, the only possible conclusion by the court of common pleas was that the decision of the Ohio State Medical Board finding that DeBlanco should be punished pursuant to R.C.
For the foregoing reasons, all four assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BOWMAN, P.J., and STRAUSBAUGH, J., concur. *203