Sudhir Sitaram Polisetty, M.D., Appellant-Appellant, v. State Medical Board of Ohio, Appellee-Appellee.
No. 15AP-482
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
December 17, 2015
[Cite as Polisetty v. State Med. Bd. of Ohio, 2015-Ohio-5278.]
KLATT, J.
(C.P.C. No. 14CV-11929) (REGULAR CALENDAR)
Rendered on December 17, 2015
Dinsmore & Shohl, LLP, Eric J. Plinke and Daniel S. Zinsmaster, for appellant.
Michael DeWine, Attorney General, James T. Wakley and Melinda Ryans Snyder, for appellee.
ON MOTION TO DISMISS
KLATT, J.
{¶ 1} Appellee, the State Medical Board of Ohio, permanently revoked the license to practice medicine previously held by appellant, Dr. Sudhir Sitaram Polisetty. Dr. Polisetty appealed the revocation, and the Franklin County Court of Common Pleas affirmed. Dr. Polisetty filed his notice of appeal to this court on May 8, 2015. Dr. Polisetty‘s counsel then filed a suggestion of death pursuant to App.R. 29 indicating that Dr. Polisetty died on October 14, 2015. The state now moves to dismiss the appeal as moot.
{¶ 2} Counsel for Dr. Polisetty opposes dismissal on the grounds that the appeal is not moot because the matter can still be reversed on appeal and remanded to the medical board to afford Dr. Polisetty the opportunity for posthumous “vindication.”
{¶ 3} We agree with the state that the present appeal is moot and must be dismissed. We also agree with the state that the doctrine of abatement does not apply to medical board license revocation proceedings.
{¶ 4} It is a standing principle that Ohio courts should not entertain jurisdiction over cases that do not present an actual controversy. Tschantz v. Ferguson, 57 Ohio St.3d 131, 133 (1991). “If, while an action is pending, an event occurs that renders it impossible for a court to grant any effectual relief, the court will generally dismiss the action.” Ridgeway v. State Med. Bd. of Ohio, 10th Dist. No. 06AP-1197, 2007-Ohio-5657, ¶ 11, citing Tschantz. An action is moot when it involves no genuine justiciable controversy upon which the court can render a decision that affects the existing legal relations between the parties. Lingo v. Ohio Cent. RR., Inc., 10th Dist. No. 05AP-206, 2006-Ohio-2268, ¶ 20.
{¶ 5} We find that this appeal is now moot. Even if the appeal were to proceed to a favorable conclusion, we doubt that the medical board has it within its power to restore the late Dr. Polisetty to the practice of medicine. Nor do we entertain the notion that the medical board upon remand could formally act to restore Dr. Polisetty‘s good name and reputation, and thereby “vindicate” him in any way.
{¶ 6} The medical board exists to regulate the practice of medicine by enforcing standards for the conduct of physicians and other health care personnel.
{¶ 7} We next consider the effect of that dismissal upon past proceedings in the matter. The doctrine of abatement proposes that, because the direct appeal of a felony conviction is an indispensable component of that conviction‘s validity, the death of a defendant in the course of his direct appeal as of right nullifies the original criminal conviction. See generally Cavallaro, Better Off Dead: Abatement, Innocence, and the Evolving Right of Appeal, 73 U. of Colo. L. Rev. 943, 2002. The rule is consistently applied in the federal judiciary and accepted in some form by the majority of states. Id. at 943; Durham v. United States, 401 U.S. 481, 483 (1971) (doctrine of abatement provides that death of defendant during pendency of direct appeal as of right nullifies all aspects of the prosecution from its inception), overruled on other grounds, Dove v. United States, 423 U.S. 325 (1976). “This principle applies only while appeals of right are pending; the Supreme Court draws the line at petitions for a writ of certiorari, which are simply dismissed upon the death of a petitioner.” United States v. Volpendesto, 755 F.3d 448, 452 (2014), citing Dove. See also State v. Liddy, 11th Dist. No. 2010-L-135, 2011-Ohio-5856 (abatement does not operate to vacate underlying conviction when defendant dies during appeal from denial of post-conviction relief).
{¶ 8} Ohio is among the plurality of states whose courts have adopted the more comprehensive form of the abatement doctrine. In State v. McGettrick, 31 Ohio St.3d 138 (1987), syllabus, the Supreme Court defined the rule as applied in Ohio:
When a criminal defendant-appellant dies while his appeal is pending and, subsequently, within a reasonable time, a personal representative of the decedent is appointed, that representative may be substituted as a party on motion by the decedent‘s representative or the state under the then existing style of the case, and the court of appeals shall proceed to determine the appeal. Absent such a motion, filed within a reasonable time by the state, for substitution of a party, the court of appeals may dismiss the appeal as moot, vacate the original judgment of conviction and dismiss all related criminal proceedings, including the original indictment.
{¶ 10} For the foregoing reasons, we dismiss the present appeal as moot and leave undisturbed the determinations of the court of common pleas and the medical board that preceded the appeal.
Appeal dismissed.
BROWN, P.J., and TYACK, J., concur.