Temponeras v. Ohio State Med. Bd.Temponeras v. Ohio State Med. Bd.
Rendered on July 30, 2015
Barbin Law, Inc., Bradley Davis Barbin, and Rachael M. Price, for appellant.
Michael DeWine, Attorney General, and Henry G. Appel, for appellee.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, P.J.
{¶ 1} Margy Temponeras, M.D., appellant, appeals the judgment of the Franklin County Court of Common Pleas in which the court affirmed the order by the State Medical Board of Ohio (“board“), appellee.
{¶ 2} Appellant has been a licensed physician since 1997. In May 2011, the United States Drug Enforcement Administration (“DEA“) suspended appellant‘s certificate of registration to prescribe drugs, based upon appellant‘s over-prescribing controlled substances, mostly Oxycodone and Xanax; the overdose deaths of several of her patients; and her unauthorized distribution of controlled substances. Appellant was operating two companies in the same building, a pain management clinic (Unique Pain Management)
{¶ 3} In January 2012, the board indefinitely suspended appellant‘s Ohio medical license based on the DEA‘s suspension of her certificate of registration. However, at an October 2011 board hearing relating to the board‘s suspension of appellant‘s license, the mitigation testimony of “Patient 3” revealed that appellant had prescribed him controlled substances from October 2009 through May 2011, during which time they had been in a romantic relationship. During this period, appellant provided Patient 3 with 43 prescriptions for 30-day supplies of anti-anxiety medications and opioid pain killers. This court affirmed the board‘s suspension of appellant‘s medical license in Temponeras v. State Med. Bd. of Ohio, 10th Dist. No. 13AP-374, 2014-Ohio-225 (”Temponeras“).
{¶ 4} In July 2012, the DEA revoked appellant‘s certificate of registration, based on appellant over prescribing pain medications and improper dispensing of the same without being registered as a pharmacist.
{¶ 5} On September 12, 2012, the board issued notice to appellant indicating that it proposed to take action against her Ohio medical license. On June 10, 2013, the board approved and adopted a proposed order of the board‘s hearing examiner and permanently revoked appellant‘s certificate to practice medicine and surgery, based on (1) the DEA‘s revocation of appellant‘s certificate of registration, pursuant to
{¶ 6} Appellant appealed the board‘s order to the Franklin County Court of Common Pleas. On October 24, 2014, the common pleas court affirmed the board‘s order.
I. THE STATE MEDICAL BOARD OF OHIO RELIED SOLELY UPON UNSUPPORTED HEARSAY EVIDENCE SUBMITTED BY A FEDERAL AGENCY WITHOUT PROVIDING SUFFICIENT TESTIMONY OR CORROBORATIVE EVIDENCE.
II. O.R.C. 4731.22(B)(24) IS UNCONSTITUTIONAL BECAUSE IT PERMITS A STATE AGENCY TO WHOLLY ABDICATE AND DELEGATE ITS DUTIES TO A FEDERAL AGENCY IN VIOLATION OF THE OHIO CONSTITUTION, THE OHIO REVISED CODE, AND THE OHIO ADMINISTRATIVE CODE.
III. THE STATE MEDICAL BOARD OF OHIO ERRED IN ITS DECISION TO PERMANENTLY REVOKE DR. TEMPONERAS’ MEDICAL LICENSE BASED ON A VIOLATION OF O.R.C. 4731.22(B)(20) AND O.A.C. 4731-11-08(B) BECAUSE DR. TEMPONERAS TREATED PATIENT 3 IN AN ONGOING “EMERGENCY SITUATION.”
{¶ 7} Appellant argues in her first assignment of error that the board relied on unsupported hearsay evidence submitted by a federal agency without providing sufficient testimony or corroborative evidence. In an administrative appeal, pursuant to
{¶ 8} The common pleas court‘s ” ‘review of the administrative record is neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court “must appraise all [the] evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight [thereof].” ’ ” Akron v. Ohio Dept. of Ins., 10th Dist. No. 13AP-473, 2014-Ohio-96, ¶ 19, quoting Lies v. Ohio Veterinary Med. Bd., 2 Ohio App.3d 204, 207 (1st Dist.1981), quoting Andrews v. Bd. of Liquor Control, 164 Ohio St. 275, 280 (1955). The court must give due deference to the administrative determination of conflicting testimony, including the resolution of credibility conflicts. Crumpler v. State Bd. of Edn., 71 Ohio App.3d 526, 528 (10th Dist.1991). The court must defer to the agency‘s findings of fact unless they are ” ‘internally inconsistent, impeached by evidence of a prior inconsistent statement, rest upon improper inferences, or are otherwise unsupportable.’ ” Kimbro v. Ohio Dept. of Adm. Servs., 10th Dist. No. 12AP-1053, 2013-Ohio-2519, ¶ 7, quoting Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466, 471 (1993). However, the common pleas court reviews legal questions de novo. Akron at ¶ 19, citing Ohio Historical Soc. at 471.
{¶ 9} Our review is more limited than that of the common pleas court. Smith v. State Med. Bd. of Ohio, 10th Dist. No. 12AP-234, 2012-Ohio-4423, ¶ 13. 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. Id., citing Roy v. Ohio State Med. Bd., 80 Ohio App.3d 675, 680 (10th Dist.1992). An abuse of discretion occurs when a decision is unconscionable, unreasonable, or arbitrary. Weiss v. State Med. Bd. of Ohio, 10th Dist. No. 13AP-281, 2013-Ohio-4215, ¶ 15, citing State ex rel. Nese v. State Teachers Retirement Bd. of Ohio, 136 Ohio St.3d 103, 2013-Ohio-1777, ¶ 25. When determining whether the board‘s order was in accordance with the law, our review is plenary. Id., citing Univ. Hosp., Univ. of Cincinnati College of Med. v. State Emp. Relations Bd., 63 Ohio St.3d 339, 343 (1992).
{¶ 10}
(B) The board, by an affirmative vote of not fewer than six members, shall, to the extent permitted by law, limit, revoke, or suspend an individual‘s certificate to practice, refuse to register an individual, refuse to reinstate a certificate, or reprimand or place on probation the holder of a certificate for one or more of the following reasons:
* * *
(20) * * * [V]iolating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or
conspiring to violate, any provisions of this chapter or any rule promulgated by the board. * * *
(24) The revocation, suspension, restriction, reduction, or termination of clinical privileges by the United States department of defense or department of veterans affairs or the termination or suspension of a certificate of registration to prescribe drugs by the drug enforcement administration of the United States department of justice[.]
{¶ 11}
Accepted and prevailing standards of care require that a physician maintain detached professional judgment when utilizing controlled substances in the treatment of family members. A physician shall utilize controlled substances when treating a family member only in an emergency situation which shall be documented in the patient‘s record.
For purposes of this rule, “family member” means a spouse, parent, child, sibling or other individual in relation to whom a physician‘s personal or emotional involvement may render that physician unable to exercise detached professional judgment in reaching diagnostic or therapeutic decisions.
{¶ 12} In the present case, appellant argues that the board did not call as a witness any DEA or board witness or present any other evidence regarding appellant‘s purported violation of DEA rules. Appellant contends that no investigators provided any testimony against her, and the board relied solely upon the DEA‘s order. Appellant claims the board should be required to provide some corroborative testimony regarding the DEA‘s order. However, appellant fails to cite any case law for the proposition that a DEA order revoking a certificate of registration to prescribe drugs is insufficient by itself to constitute a violation of
{¶ 13} Applying the same analysis as we did in Temponeras to the present case, we find the DEA‘s order constituted reliable, probative, and substantial evidence that the DEA had immediately revoked appellant‘s DEA certificate of registration to prescribe drugs. Id. at ¶ 16. Accordingly, the board‘s order revoking appellant‘s medical license was in accordance with law pursuant to
{¶ 14} Appellant argues in her second assignment of error that
{¶ 15} Parties advancing an as-applied challenge must raise that challenge at the first available opportunity, and failure to do so results in waiver. Wymsylo at ¶ 20. They need not do so if arguing a facial challenge. Id., citing Bd. of Edn. South-Western City Schools v. Kinney, 24 Ohio St.3d 184 (1986), syllabus, and Reading v. Pub. Util. Comm., 109 Ohio St.3d 193, 2006-Ohio-2181, ¶ 16. Thus, a facial constitutional challenge may be
{¶ 16} Appellant has raised an as-applied constitutional challenge as to
{¶ 17} Appellant argues in her third assignment of error that the board erred when it permanently revoked her medical license based upon a violation of
{¶ 18} Patient 3 testified that he began a personal relationship with appellant in 2003. In October 2009, appellant prescribed him Oxycodone and Percocet after having a “silent” heart attack that progressively prevented him from getting out of bed and caused excruciating leg pain. He called it a life-or-death situation. He could not walk, he cried, he yelled, and the vascular pain was indescribable. Although he admitted that appellant‘s name continued to appear on prescriptions for him for pain and anxiety medications, including Xanax, until about April or May 2011, Patient 3 testified that it was actually
{¶ 19} In the report and recommendation issued by the board‘s hearing examiner, the examiner found that, although Patient 3 claimed it was actually Dr. John Temponeras who was prescribing his medication after December 2009, during the October 2011 hearing in the prior related case, Patient 3 testified that appellant had treated him for pain management on a continuing basis and did not mention Dr. John Temponeras when he listed his other treating physicians. The examiner found that Patient 3‘s attempts to minimize appellant‘s involvement in prescribing controlled substances to him were not credible because he changed his answers several times about the duration and dates of appellant‘s treatment of him; he claimed he was not mobile enough to see any other doctors but admitted he saw 8 to 12 other doctors for his leg during the time of appellant‘s treatment of him; he said his other doctors referred him back to appellant for pain management, but admitted that only one of those doctors knew he had a personal relationship with her; he did not explain why he would not have immediately sought emergency room treatment and pain medication through an emergency room physician for the devastating pain he suddenly began suffering in October 2009; and Patient 3‘s personal relationship with appellant. The examiner also found that Patient 3‘s testimony, at best, supported short-term emergency pain treatment when he initially began suffering the pain in his leg, but certainly not ongoing 30-day prescriptions.
{¶ 20} We concur with the board‘s well-founded findings, and a lengthy rephrasing of those findings by this court is unnecessary. Patient 3‘s situation was not an emergency from October 2009 until May 2011. At best, Patient 3‘s condition was an emergency only in early October 2009, and the emergency did not last until May 2011. See, e.g., Harris v. State Med. Bd., 10th Dist. No. 11AP-671, 2012-Ohio-4019, ¶ 26 (prescribing medications for one year goes beyond the period of any emergency). It was clear that Patient 3 was eventually able to travel to other doctors for treatment of his leg, and Patient 3 was able to find another pain management doctor only a few blocks away from appellant‘s office after appellant lost her DEA certificate of registration. Furthermore, we agree that there is no apparent reason why appellant could not refer Patient 3 to an emergency room or urgent care center. See id. (even if some of the situations could be termed “emergency,” physician could have referred the patients to an urgent care center or emergency room instead of prescribing medications to persons with which he was engaging in sexual relations). The board‘s determination that Patient 3 lacked credibility was also well founded for the above-stated reasons. Patient 3‘s claim that Dr. John Temponeras was actually the prescribing doctor for most of the pertinent period was not believable without any corroborating evidence beyond Patient 3‘s biased assertion. For the foregoing reasons, we find the board‘s order regarding a violation of
{¶ 21} Accordingly, appellant‘s three assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
SADLER and HORTON, JJ., concur.