Arlen v. State

• Decision Date: 06 February 1980
• Docket Number: No. 79-363,79-363
• Citation: 399 N.E.2d 1251,61 Ohio St.2d 168,15 O.O.3d 190
• Parties: , 15 O.O.3d 190 ARLEN, Appellee, v. STATE of Ohio, State Medical Board, Appellant.
• Court: Ohio Supreme Court

Page 168

61 Ohio St.2d 168

399 N.E.2d 1251, 15 O.O.3d 190

ARLEN, Appellee, v. STATE of Ohio, State Medical Board, Appellant.

No. 79-363.

Supreme Court of Ohio.

Feb. 6, 1980.

Syllabus by the Court

Expert testimony as to a standard of practice is not mandatory in a medical disciplinary proceeding to determine whether a physician's conduct falls below a reasonable standard of medical care.

Statement of the Case.

On April 15, 1976, the State Medical Board of Ohio (hereinafter "board") notified appellee, Monroe S. Arlen, M.D. (hereinafter "Dr. Arlen"), by a 28-paragraph citation that it intended to determine whether to discipline him for violations of R.C. 4731.22(B).

Paragraph one alleged that Dr. Arlen violated R.C. 4731.22(B)(15) and Section 4 of the American Medical Association Code of Ethics by dispensing Dilaudid, a Schedule II controlled substance, without a proper license. Paragraph two alleged violations of R.C. 4731.22(B)(2), (8) and (15) and Sections 4 and 7 of the AMA Code of Ethics by writing prescriptions for narcotics in the name of one person when such drugs were actually intended for other individuals. Paragraphs three through 27 allege violations of R.C. 4731.22(B)(2) and (15) and Sections 4 and 7 of the AMA Code of Ethics by failing to use reasonable care and discrimination in the administration of drugs to certain individuals. Charge 28, noting the previous 27 paragraphs, alleged a violation of R.C. 4731.22(B)(6) by Dr. Arlen's departure from minimal standards of care.

Dr. Arlen has been licensed by the state of Ohio as a physician in the field of psychiatric medicine since 1957. In 1975, Dr. Arlen came into contact with Gary Jablonski, an employee of the Cleveland Drug Treatment Center. Jablonski misrepresented to Dr. Arlen that he was the head of the intake program for drug addicts at the drug center. Jablonski requested Dr. Arlen's assistance in providing temporary medication to certain drug addicts who were on the waiting list for treatment at the drug center.

Factually, there was no waiting list at the drug center. Jablonski had made misrepresentations about himself and the center in a scheme to obtain drugs from Dr. Arlen.

Dr. Arlen's treatment consisted of maintaining the drug addicts on Dilaudid, a Schedule II controlled substance, to prevent the addicts from experiencing the effects of abrupt withdrawal during the supposed waiting period.

Initially, Dr. Arlen administered the drugs directly to the addicts sent to him by Jablonski. Jablonski's reasons for taking the addicts to Dr. Arlen was that Jablonski was to receive one-half of whatever Dr. Arlen prescribed. Thereafter, prescriptions were made out in the name of Jablonski, who was supposed to dispense the drugs to the patients directly.

During the initial treatment of the addicts sent by Jablonski, Dr. Arlen was not licensed to prescribe Schedule II drugs. He was licensed to prescribe Schedule III drugs, because he did possess a Drug Enforcement Administration Schedule III certificate. It is alleged that the failure to obtain a license to prescribe Schedule II narcotics was an oversight by Dr. Arlen. Once Dr. Arlen became aware of the situation he did obtain the proper license.

Being concerned with the legal implications of treating addicts as outpatients, Dr. Arlen contacted the Cleveland Academy of Medicine and the federal Drug Enforcement Administration requesting a legal and ethical opinion as to services to the addicts. Dr. Arlen did not mention that he was administering drugs by writing prescriptions in the name of Jablonski, for use by other individuals according to Jablonski's discretion.

Initially, Dr. Arlen received no response from these agencies. Upon further request, he was informed of the possible legal ramifications and promptly halted the treatments.

On July 29, 1976, an administrative hearing was held in the matter, pursuant to R.C. Chapter 119. In order to refute the alleged violations by the board, Dr. Arlen presented the testimony of Dr. Herbert Weiss, an expert in pharmacological tendency treatment. Dr. Weiss testified on the appropriateness of maintaining addicts on narcotics because of the severe effects of abrupt withdrawal. Dr. Weiss did not testify as to the appropriateness of writing prescriptions for a Schedule II narcotic in the name of one individual, when its actual intended use is for another.

On September 9, 1976, the board issued an order suspending Dr. Arlen's license to practice medicine for six months and placing him on probation for two years.

Dr. Arlen then appealed the decision of the board to the Court of Common Pleas of Cuyahoga County, which reversed the board's order, holding that the decision was not supported by reliable, probative and substantial evidence.

Upon appeal to the Court of Appeals, that court affirmed the decision of the Court of Common Pleas.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Yelsky, Singer & Lonardo and Leonard W. Yelsky, Cleveland, for appellee.

William J. Brown, Atty. Gen. and B. Douglas Anderson, Asst. Atty. Gen., for appellant.

LOCHER, Justice.

Appellant asserts two propositions of law that involve the application of R.C. 4731.22 and certain sections of the AMA Code of Ethics.

R.C. 4731.22 states, in pertinent part:

"(B) The (state medical) board shall, to the extent permitted by law, limit, reprimand, revoke, suspend, place on probation, refuse to register, or reinstate a certificate for one or more of the following reasons:

" * * *

"(2) Failure to use reasonable care discrimination in the administration of drugs, or failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease;

" * * *

"(6) A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established;

" * * *

"(8) Knowingly maintaining a professional connection or association with a person who is in violation of this chapter or rules of the board or with a person who knowingly aids, assists, procures or advises an unlicensed person to practice medicine contrary to this chapter or rules of the board;

" * * *

"(15) The violation of any provision of a code of ethics of a national professional organization as specified in this division. 'National professional organization' means the American medical association, the American osteopathic association, the American podiatry association, the American physical therapy association, and such other national professional organizations as are determined, by rule, by the state medical board. The state medical board shall obtain and keep on file current copies of the codes of ethics of the various national professional organizations. The practitioner whose certificate is being suspended or revoked shall not be found guilty of the violation of a code of ethics of an organization not appropriate to his profession."

Section 4 of the AMA Code of Ethics provides as follows:

"The medical profession should safeguard the public and itself against physicians deficient in moral character or professional competence. Physicians should observe all laws, uphold the dignity and honor of the profession and accept its self-imposed disciplines. They should expose, without hesitation, illegal or unethical conduct of fellow members of the profession."

Section 7 of the AMA Code of Ethics provides that:

"In the practice of medicine a physician should limit the source of his professional income to medical services actually rendered by him, or under his supervision, to his patients. His fee should be commensurate with the services rendered and the patient's ability to pay. He should neither pay nor receive a commission for referral of patients. Drugs, remedies or appliances may be dispensed or supplied by the physician provided it is in the best interests of the patient."

I.

In its first proposition of law, appellant asserts that an administrative licensing board in a disciplinary action may rely on its own expertise in deciding whether a standard of practice has been met.

The appellate court determined that the order of the State Medical Board suspending Dr. Arlen's license must be reversed because of the absence of an expert opinion acknowledging that Dr. Arlen failed to use "reasonable care discrimination in the administration of drugs," as provided in R.C. 4731.22(B) (2).

For the reasons hereinafter set forth, expert testimony as to a standard of practice is not mandatory in a license revocation hearing and the board may rely on its own expertise to determine whether a physician failed to conform to minimum standards of care.

Dr. Arlen was charged with the "(f)ailure to use reasonable care" and a "departure from, or failure to conform to, minimal standards of care," as espoused in R.C. 4731.22(B)(2) and (6), respectively.

R.C. 4731.22 specifies the grounds for revoking, suspending, reprimanding and refusing a license for the practice of medicine in order to maintain a criterion or minimum standard appropriate for the profession.

Similar to the reasonably prudent man standard of tort law, a physician, who is regulated under the mandates of R.C. 4731.22, must "use reasonable care" and "conform" to "minimal standards of care of similar practitioners under the same or similar circumstances."

In a tort action, a jury is given the delicate task of weighing and considering evidence and determining whether an individual has acted within the purview of a "reasonably prudent man." In tort actions, the trier of facts has knowledge or experience of common occurrences and determines whether certain acts fall below the statutory standard.

A medical disciplinary proceeding, such as in the instant cause, is a...