Ferieda M. Walker, M.D. v. State Medical Board of Ohio

• Decision Date: 21 February 2002
• Docket Number: 01AP-791,02-LW-0611
• Citation: Ferieda M. Walker, M.D. v. State Medical Board of Ohio, 2002 Ohio 682, 01AP-791, 02-LW-0611 (Ohio App. Feb 21, 2002)
• Parties: Ferieda M. Walker, M.D., Appellant-Appellant v. State Medical Board of Ohio, Appellee-Appellee
• Court: Ohio Court of Appeals

2002-Ohio-682

Ferieda M. Walker, M.D., Appellant-Appellant v. State Medical Board of Ohio Appellee-Appellee

No. 01AP-791

02-LW-0611 (10th)

Court of Appeals of Ohio, Tenth District, Franklin County.

February 21, 2002

APPEAL from the Franklin County Court of Common Pleas.

Charles A. Smiley, Jr., for appellant.

Betty D. Montgomery, Attorney General, and Rebecca J. Albers, for appellee.

OPINION

BROWN J.

Ferieda M. Walker, M.D., appellant, appeals a June 13, 2001 entry of the Franklin County Court of Common Pleas affirming the order of the State Medical Board of Ohio ("the Board"), appellee, revoking appellant's medical license.

Appellant became licensed to practice medicine in Ohio in 1992. In May or June of 1998, Robin Brockman, a police officer with the city of Dayton, learned from a neighbor that appellant ran a weight-loss clinic. Brockman was interested in losing weight and scheduled an appointment with appellant. At her appointment, Brockman was prescribed phentermine hydrochloride (a Schedule IV controlled substance anorectic used for weight loss) ("phentermine"), and observed appellant's method of operation. While Brockman was in the waiting room with approximately twenty other patients appellant passed out before and after photos of her patients, explained the difference between black and white female bodies and how they feel about themselves, and guaranteed the patients they would lose weight or get a refund. Appellant did not conduct any physical examinations except to listen to each patient's heart over their clothing for a few seconds while she continued talking. She also did not ask the patients any personal questions. Each patient filled out a basic questionnaire, was weighed in by an assistant, and was given a two-week supply of phentermine. Brockman made subsequent office visits, during which an assistant weighed her and then gave her an additional two-week supply of phentermine for $25.

After her family doctor questioned how she was losing weight, Brockman told her doctor she was taking phentermine that was given to her by appellant. The family doctor suggested that she speak with someone at the police department because she did not think appellant's methods were proper. Brockman met with Detective Dennis Castle, who placed a wire on her and inserted a hidden video camera in her purse. Brockman returned to appellant's office and observed the same method of operation that she had on previous visits. She returned several times, and each time was given phentermine without a physical examination or any communication with appellant. On one occasion, Brockman was also permitted to buy two Viagra tablets for $40 from appellant's receptionist, claiming they were for her fictitious husband. The receptionist did not explain any side effects, ask if her husband had any health problems, or ask why the pills were needed.

Two other undercover officers, Detective Holly Murchland and Deputy Jeanine Whittaker, each possessing a wire and hidden camera, were then sent to appellant's office. The officers had the same experience as Brockman and were given phentermine. Detective Castle then called a phone number on one of appellant's business cards that advertised Viagra. Appellant called back and told Detective Castle to come to her office where he could have as many pills as he wanted for $20 each. Detective Castle went to appellant's office and purchased three tablets for $25 each. Appellant did not ask any medical history or give an examination, although she did ask him if he was taking nitroglycerin. A search warrant was eventually obtained, and appellant's office was searched on November 4, 1998. The information and evidence gathered during the search and investigation was given to the Board.

In May 1999, the Board notified appellant that it would take disciplinary action against her license. The proposed discipline regarded appellant dispensing phentermine to patients for excessive periods without conducting physical examinations, taking medical histories, ruling out pregnancy, or determining a patient's propensity for drug and alcohol use. The Board also alleged appellant dispensed Viagra to patients without investigating the patients' sexual histories or performing any physical examinations. The Board further alleged appellant failed to account for 139,696 unit doses of phentermine she purchased between January 1, 1997, and November 4, 1998. The Board charged that appellant's conduct constituted violations of:

R.C. 4731.22(B)(10) % commission of an act that constitutes a felony, to wit, R.C. 2925.03, trafficking in drugs.

R.C. 4731.22(B)(20) % violating, committing, assisting, or conspiring to violate OAC 4731-11-04(B) and (C) and 4731-11-02(E) and (F).

R.C. 4731.22(B)(2) % failure to use reasonable care discrimination in the administration of drugs or failure to employ acceptable scientific methods in selection of drugs or treatment.

R.C. 4731.22(B)(6) % departure from minimal standards of care similar to practitioners under the same or similar circumstances, whether or not injury is established.

R.C. 4731.22(B)(12) % commission of an act that constitutes a

misdemeanor, to wit, R.C. 3719.07, Records of Controlled Substances (based upon appellant's failure to account for the missing phentermine doses).

A hearing before the Board was scheduled for September 27, 1999, and appellant requested a continuance based upon her possible indictment by the Montgomery County Grand Jury. The request was denied. The day of the hearing, the same request was made and denied. However, due to the illness of appellant's counsel, the hearing was continued until November 22, 1999. On November 17, 1999, appellant requested a continuance of the hearing due to her own illness. The request was granted.

The hearing finally commenced on February 1, 2000, but on February 3, 2000, appellant requested another continuance based upon her indictment on February_2. The hearing examiner denied this request because the evidence already presented indicated possible public risk if the hearing were to be continued. After the continuance was denied, appellant testified on her own behalf.

On May 9, 2000, the hearing examiner issue a report and recommendation proposing the Board permanently revoke appellant's license. Appellant filed objections. On June 14, 2000, the Board considered the matter. Appellant, her counsel, and the assistant attorney general were permitted to address the Board. After deliberation, the Board voted to permanently revoke appellant's license. Appellant appealed to the Franklin County Court of Common Pleas, which affirmed the Board's decision. Appellant appeals, asserting the following four assignments of error:

1. The Trial Court erred by affirming the Board's Order, which was not in accordance with law, because of the failure of the Hearing Examiner to continue the administrative hearing to permit Appellant to safeguard Appellant's privilege against self-incrimination.

2. The Trial Court erred when it failed to vacate the Board's Order as not in accordance with law, because the Order was the result of a proceeding that forced Appellant to forego her Constitutional privilege against self-incrimination.

3. The Trial Court abused its discretion by affirming an administrative order that resulted from a proceeding which violated Appellant's Constitutional rights to Due Process and Equal Protection of Law.

4. The Trial Court erred in upholding the Board's Order where the expert evidence essential to reach an administrative determination was provided by the Board itself rather than an expert witness capable of being cross-examined.

Appellant addressed her first three assignments of error together in her brief, and because they are related, we will do the same. Appellant argues in her first assignment of error the trial court erred when it affirmed the hearing examiner's denial of her motion to continue the administrative hearing based upon the privilege against self-incrimination. Appellant argues in her second assignment of error the trial court erred when it failed to vacate the Board's order because the order was the result of a proceeding that forced appellant to forego her constitutional privilege against self-incrimination. In her third assignment of error, appellant asserts the trial court abused its discretion when it affirmed the Board's order because it resulted from a proceeding that violated her constitutional rights to due process and equal protection.

In an appeal from a Board order, a reviewing trial court is bound to uphold the order if it is supported by reliable, probative, and substantial evidence, and is in accordance with law. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621; R.C. 119.12. Reliable, probative, and substantial evidence has been defined 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. Our Place, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St.3d 570, 571.

However, an appellate court's review is even more limited than that of the trial court. Pons, at 621. While it is incumbent on the trial court to examine the evidence, the appellate court is to determine only if the trial court abused its discretion, i.e., being not merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. Id. Absent an abuse of discretion on the part of the trial court, a court of appeals may not substitute...