Lundeen v. State Med. Bd. of OhioLundeen v. State Med. Bd. of Ohio
Rendered on January 17, 2013
James E. Lundeen, Sr., M.D., pro se.
Michael DeWine, Attorney General, Katherine J. Bockbrader, and Henry G. Appel, for appellee.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶ 1} Appellant, James E. Lundeen, Sr., 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“), permanently revoking his license to practice medicine in Ohio. For the reasons that follow, we affirm the judgment of the trial court.
I. BACKGROUND
{¶ 2} In 1965, appellant received his license to practice medicine in the state of Ohio. By order dated May 11, 2011, the board found there was clear and convincing evidence of multiple violations of the Medical Practices Act as codified in
{¶ 3} Appellant was provided a notice of opportunity for hearing alleging that over an approximate 34-year period he violated the standard of care with respect to 26 patients by the improper treatment and prescribing of controlled substances and other drugs of abuse. Specifically, the notice alleged that as to these 26 patients, appellant (1) failed to conduct appropriate physical examinations and failed to record objective physical-examination findings, (2) excessively and inappropriately prescribed narcotic analgesics and other drugs of abuse without regard to indications of possible addiction, drug abuse or diversion, (3) often prescribed increasing dosages of narcotics that were not supported by, or with no documentation of, an objective change in the medical status of the patient, and (4) utilized medical management and/or treatment that was not appropriate to the patients’ diagnoses and/or their clinical situation.
{¶ 4} The administrative hearing took place over several days, to wit: August 22, 24-26, 29-30, September 27-28, 30, and October 5-7, 13, 2011. Among the evidence presented during the hearing was the testimony of two patients and the board‘s expert witness John W. Cunningham, M.D. Appellant did not appear at the hearing to testify, but, instead, provided a written statement that included his position and arguments. Appellant‘s statement, however, was not signed, made under oath, nor subject to examination.
{¶ 5} On November 18, 2011, the hearing examiner issued a 358-page report and recommendation (“hearing examiner‘s report“). The hearing examiner‘s report contained a detailed summary of the evidence as well as findings of fact and conclusions of law. The hearing examiner found numerous departures from the minimal standards of care and that “[t]he pattern of violations continued for many years and affected numerous patients.” (Hearing examiner‘s report, 357.) The hearing examiner also noted appellant‘s failure to acknowledge that his prescribing practices were flawed. The hearing examiner
{¶ 6} In accordance with
II. ASSIGNMENTS OF ERROR
{¶ 7} Appellant now appeals and presents the following two assignments of error for our consideration:
- The trial court lacked judicial authority and subject matter jurisdiction and/or exceeded its authority to preside over the proceedings in this matter. Thus, any judgments entered in this matter by the trial court are null and void.
- The statutes utilized by the State Medical Board of Ohio (RC 4731.22 (B) (2), 4731.22 (B)(6) and 4731.22 (B)(20)) are unconstitutional “as-applied” to a disciplinary action
culminating in a permanent medical license revocation, as they impose strict liability in the absence of a mens rea requirement, resulting in a penalty which is both harsh and stigmatic.
(Emphasis sic.)
III. STANDARD OF REVIEW
{¶ 8} In an administrative appeal, pursuant to
(1) “Reliable” evidence is dependable; that is, it can be confidently trusted. In order to be reliable, there must be a reasonable probability that the evidence is true.
(2) “Probative” evidence is evidence that tends to prove the issue in question; it must be relevant in determining the issue.
(3) “Substantial” evidence is evidence with some weight; it must have importance and value.
Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571 (1992).
{¶ 9} The standard of review is more limited on appeal to this court. Unlike the trial court, this court does not determine the weight of the evidence. Levine at ¶ 13. In reviewing the court of common pleas’ determination that the commission‘s order was supported by reliable, probative, and substantial evidence, this court‘s role is confined to determining whether the court of common pleas abused its discretion. Id. The term abuse of discretion connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). However, on the question of whether the commission‘s order was in accordance with the law, this court‘s review is plenary. Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339, 343 (1992).
IV. DISCUSSION
{¶ 10} On appeal, appellant seemingly abandons all of the arguments made in the trial court and asserts two arguments not previously raised in these proceedings. It is
{¶ 11} Appellant asserts that the arguments raised in his first assignment of error are not subject to waiver. Here, appellant contends the board‘s order of May 11, 2011, that summarily suspended his medical license, as well as the board‘s November 18, 2011 notice, that contained the hearing examiner‘s report and notified him that the report would be considered at the board‘s December meeting, are void because in both instances the board used certified mail rather than registered mail as is required by
{¶ 12} Regarding summary suspensions,
{¶ 13} Moreover,
{¶ 14} Consequently, we conclude there is no merit to appellant‘s contention that the board‘s use of certified mail in these instances rendered void all subsequent action taken by the board and left the board without subject-matter jurisdiction over the proceedings. Accordingly, we overrule appellant‘s first assignment of error.
{¶ 15} In his second assignment of error, appellant argues that the board‘s disciplinary statute, as codified in
{¶ 16} The burden of affirmatively demonstrating error on appeal rests with the party asserting error. State ex rel. Petro v. Gold, 166 Ohio App.3d 371, 392 (10th Dist.2006), citing App.R. 9; App.R. 16. Pursuant to App.R. 16(A)(7), an appellant must present his or her contentions with respect to each assignment of error presented for review and the reasons in support of those contentions, including citations to legal authorities. According to App.R. 12(A)(2), we may disregard an assignment of error if an appellant fails to cite to any legal authority in support of an argument as required by App.R. 16(A)(7). See, e.g., In re C.C., 10th Dist. No. 04AP-883, 2005-Ohio-5163, ¶ 80; Hall v. Tucker, 161 Ohio App.3d 245, 263, 2005-Ohio-2674; State v. Martin, 12th Dist. No. CA99-01-003 (July 12, 1999); Meerhoff v. Huntington Mtge. Co., 103 Ohio App.3d 164, 169 (3d Dist.1995). “[F]ailure to comply with the rules governing practice in the appellate courts is a tactic which is ordinarily fatal.” Kremer v. Cox, 114 Ohio App.3d 41, 60 (9th Dist.1996).
{¶ 17} Furthermore, as indicated previously, the argument contained in appellant‘s second assignment of error is being asserted for the first time on appeal. Appellant provides neither explanation nor reasoning as to why this argument has not been waived for failure to raise the argument in earlier proceedings. Abunku.
{¶ 18} Based on the above grounds, we overrule appellant‘s second assignment of error.
V. CONCLUSION
{¶ 19} For the foregoing reasons, appellant‘s two assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
BROWN and DORRIAN, JJ., concur.
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