Nucklos v. State Med. Bd. of OhioNucklos v. State Med. Bd. of Ohio
Rendered on June 29, 2010
Collis, Smiles & Collis, LLC, Elizabeth Y. Collis and Terri Lynne B. Smiles, for appellant.
Richard Cordray, Attorney General, Barbara J. Pfeiffer and Karen A. Unver, for appellee.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{¶1} Appellant, William W. Nucklos, M.D. (“appellant“), appeals from a decision of the Franklin County Court of Common Pleas affirming an order of appellee, State Medical Board of Ohio (“the Board“), permanently revoking appellant‘s license to practice medicine and surgery. For the following reasons, we affirm.
{¶2} In a notice of summary suspension and opportunity for hearing dated October 10, 2007, the Board notified appellant that it had adopted an entry of order summarily suspending his certificate to practice medicine and surgery in Ohio, pursuant to
{¶3} A hearing was held before a hearing examiner for the Board on June 2 through June 6, 2008 and concluded on June 12, 2008. Appellant and the Board both provided expert testimony, but none of appellant‘s former patients testified. Appellant also invoked his Fifth Amendment right not to incriminate himself.
{¶4} Following the hearing, the hearing examiner issued a written report and recommendation, which was received by the Board on July 18, 2008, recommending that appellant‘s license be permanently revoked. On August 13, 2008, the Board issued an entry of order permanently revoking appellant‘s license to practice medicine and surgery in Ohio. Appellant then filed an appeal with the common pleas court, pursuant to
Assignment of Error 1:
It is an abuse of discretion for the trial court to uphold a finding of permanent license revocation when the Medical Board relied upon exhibits that were not medical records and not reliable, probative or substantial evidence.
Assignment of Error 2:
It is an abuse of discretion for the trial court to uphold the Medical Board‘s permanent revocation Order when the Board was acting outside the express limitation of its authority under
R.C. §4731.052 , the intractable pain statute.
{¶5} In an administrative appeal, pursuant to
{¶6} The Ohio Supreme Court has defined reliable, probative, and substantial evidence as follows:
(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.
{¶7} On appeal to this court, the standard of review is more limited. Unlike the court of common pleas, a court of appeals does not determine the weight of the evidence. Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn. (1992), 63 Ohio St.3d 705, 707. In reviewing the court of common pleas determination that the board‘s order was supported by reliable, probative, and substantial evidence, this court‘s role is limited to determining whether the court of common pleas abused its discretion. Roy v. Ohio State Med. Bd. (1992), 80 Ohio App.3d 675, 680. Absent an abuse of discretion on the part of the trial court, a court of appeals cannot substitute its judgment for that of the board or the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 1993-Ohio-122. “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 (1983), 5 Ohio St.3d 217, 219, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157. However, on the question of whether the board‘s order was in accordance with the law, this court‘s review is plenary. McGee v. Ohio State Bd. of Psychology (1993), 82 Ohio App.3d 301, 305, citing Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 339, 343.
{¶8} In his first assignment of error, appellant asserts the Board improperly relied upon exhibits which were not medical records. Appellant repeatedly argues the exhibits submitted by the Board, specifically state‘s exhibit Nos. 1-28, are not his patients’ actual medical records. He argues the use of these misleading exhibits, which were comprised of incomplete, altered medical records, as well as additional information such as pharmacy logs and police investigative reports, which appellant did not have at the time
{¶9} Appellant contends the exhibits containing the purported medical records were missing documentation, such as the results of his patients’ drug screens. He submits that when the records were seized from his practice, there were various documents which had not yet been filed, and that these unfiled documents were not contained in state‘s exhibit Nos. 1-28. Appellant claims he has not had access to his actual medical records since the day they were seized from his office in October 2002. Without access, he asserts he is unable to compare the exhibits to his actual medical records in order to prove each specific omission, addition, or alteration that exists and to prove that his patient records do in fact support and document the care he provided to his patients. Consequently, he further submits that this circumstance has improperly shifted the burden of proof to him to prove that his actual medical records properly support and document the care he provided.
{¶10} Appellee disputes appellant‘s assertion that its exhibits contain only parts of each patient‘s medical records and that there are additional records, such as drug screen results, which exist but were missing from the exhibits. The Board argues that such an assertion is pure conjecture because there is no testimony to support it. Appellee further argues that there was additional evidence considered by the Board beyond just state‘s exhibit Nos. 1-28 and the testimony of the Board‘s expert, such as appellant‘s testimony from the criminal trial. Additionally, the Board submits that the testimony of appellant‘s
{¶11} We find appellant‘s argument to be without merit. If appellant had reason to doubt the authenticity of the medical records submitted by the Board in state‘s exhibit Nos. 1-28, appellant could have challenged those records using a variety of methods. Appellant could have questioned the authenticity of the records through the former office manager, Tricia Woodruff, or by subpoenaing the person who did the filing for appellant during the two-month time period after Ms. Woodruff left the office and before the records were seized. However, appellant offered no testimony from any witnesses to establish that certain drug screens were in fact scheduled or conducted. Additionally, appellant himself exercised his Fifth Amendment right not to incriminate himself and refused to answer even the most basic of questions, including whether or not there were additional materials. See Baxter v. Palmigiano (1976), 425 U.S. 308, 96 S.Ct. 1551 (the Fifth Amendment does not preclude adverse inferences from being drawn against parties to civil actions when they invoke the privilege and refuse to testify in response to probative evidence offered against them in a civil cause).
{¶12} Alternatively, appellant was also free to make a request for the issuance of a subpoena so that he could inspect the records that were originally seized from his office. The medical board is subject to the Administrative Procedure Act,
{¶13}
For the purpose of conducting any adjudication hearing * * * the agency may, and upon the request of any party receiving notice of the hearing as required by section
119.07 of the Revised Code shall, issue a subpoena for any witness or a subpoena duces tecum to compel the production of any books, records, or papers, directed to the sheriff of the county where such witness resides or is found, which shall be served and returned in the same manner as a subpoena in a criminal case is served and returned. * * *
(Emphasis added.) See also
{¶14} Through the use of its exhibits, as well as the expert testimony of Theodore V. Parran, Jr., M.D. (“Dr. Parran“) and the testimony of appellant in the criminal trial, the Board produced reliable, substantial and probative evidence. For example, as the trial court noted, Dr. Parran testified that in preparing for the criminal trial in 2006, he prepared an expert report based upon his review of 49 patient office charts, a pharmacy board generated prescription profile of the controlled drugs taken by those patients, and two undercover police investigation reports. However, the undercover reports were not included in his expert report, which cited violations involving 28 patients.
{¶15} He further testified that he also prepared an expert report for the Board, which was based upon the medical records of the 28 patients he had previously reviewed, along with his initial report prepared in the criminal case, and the transcript of his testimony in the criminal case. Thus, in addition to the pharmacy board generated prescription profiles and the police investigative documents, both of which Dr. Parran acknowledged were not part of appellant‘s original file but which were easily
{¶16} Additionally, Dr. Parran testified that despite occasional entries in patient records indicating that a drug screen should be scheduled at a future visit, he did not find evidence in the patients’ files demonstrating that appellant had actually followed through with the drug screens. Put another way, Dr. Parran did not find drug screen results in the relevant patient files, nor did he find orders for those drug screens or even notes documenting any drug screen results, thereby leading to the conclusion that those drug screens were in fact never ordered, even if certain notes indicated an intention to do so in the future.
{¶17} We do not dispute that it is fundamental to administrative law and procedure that the party asserting the affirmative issues also bears the burden of proof. Smith v. City of Columbus, 10th Dist. No. 02AP-1219, 2003-Ohio-3303, ¶24, citing Chiero v. Bur. of Motor Vehicles (1977), 55 Ohio Misc. 22, 24. Yet, we disagree with appellant‘s contention that the burden of proof was improperly shifted to him to prove that the Board‘s allegations were false. Appellant cannot simply speculate or allege that the Board‘s records are inaccurate and that there are additional records somewhere out there which would support his position. Appellant failed to attempt to put on any actual evidence that would call into question the validity or reliability of the documents submitted by the Board. To the contrary, as the trial court noted, Ms. Woodruff identified her own handwriting on some of the records, as well as appellant‘s handwriting. Additionally, Ms. Woodruff was unable to verify appellant‘s assertion that a stack of unfiled documents had not made its way in to the patients’ medical record files, since Ms. Woodruff left the office two months
{¶18} We find the trial court did not abuse its discretion in finding that the testimony and records referenced above constitute reliable, substantial and probative evidence. The trial court did not act unreasonably or arbitrarily in finding the records and testimony to be reliable for several reasons. First, the records were kept in the ordinary course of business. Second, Ms. Woodruff identified various records and also identified some of the records as containing her handwriting as well as appellant‘s handwriting. Additionally, the trial court was within its prerogative to find Dr. Parran to be a qualified expert, particularly given Dr. Parran‘s background in this area, and thus to find his testimony to be credible and afford it significant weight. Dr. Parran adequately explained his procedure for reviewing and identifying the records and distinguishing between the patient charts and the documents which were obtained after the records were seized from appellant‘s office, and he also testified he used the pharmacy logs simply to confirm appellant‘s prescribing history for each patient. We further find the common pleas court did not abuse its discretion in finding the records and the testimony to be probative and substantial, in that they addressed the issues in question, as well as the specific matters alleged in the notice served upon appellant.
{¶19} Accordingly, we overrule appellant‘s first assignment of error.
{¶20} In his second assignment of error, appellant asserts the Board is statutorily prohibited from disciplining a physician for prescribing pain medication for pain patients unless the requirements of
{¶21}
{¶22}
{¶23}
{¶24} Appellant argues
A physician who treats intractable pain by managing it with dangerous drugs is not subject to disciplinary action by the board under section
4731.22 of the Revised Code solely because the physician treated the intractable pain with dangerous drugs. The physician is subject to disciplinary action only if the dangerous drugs are not prescribed, furnished, or administered in accordance with this section and the rules adopted under it.
{¶25} While
{¶26} In this case, the violations did not arise simply based upon the prescribing of controlled substances for chronic pain. Instead, many of the violations occurred because appellant‘s conduct generally fell below the minimal standards of care required of a physician. Examples include appellant‘s inappropriate or non-existent diagnoses and hopelessly incomplete and inadequate medical records, among numerous others.
{¶27} To illustrate, appellant was cited with a violation of
{¶28} Dr. Parran testified that appellant failed to conform with the minimal standards applicable to the selection or administration of drugs and failed to conform to the minimal standards of care of similar practitioners, thereby violating
{¶29} According to the testimony of Dr. Parran, the medical histories taken by appellant were insufficient, as were the physical examinations. Appellant‘s patient records failed to show a work-up of any medical history, lacked laboratory testing, lacked records of prior treatment and failed to document impressions or a diagnosis in many cases. Additionally, the common pleas court cited to testimony and evidence establishing
{¶30} Here, the Board‘s permanent revocation of appellant‘s license to practice was not based solely upon appellant‘s treatment of chronic pain patients using dangerous drugs. As noted above, the Board cited to and subsequently found numerous violations, many of which related to general minimal standards of care applicable to practitioners as a whole. We further note, as did the common pleas court, that, although appellant was not cited with a violation of
{¶31} Accordingly, we find the common pleas court did not abuse its discretion in finding that the Board‘s order was supported by reliable, probative and substantial evidence. Furthermore, we find said order is in accordance with law. Consequently, we overrule appellant‘s second assignment of error.
{¶32} Having overruled both of appellant‘s assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and McGRATH, JJ., concur.