Flynn v. State Med. Bd. of Ohio

• Decision Date: 20 September 2016
• Docket Number: No. 16AP–29.,16AP–29.
• Citation: 62 N.E.3d 212
• Parties: Freeda J. FLYNN, M.D., Appellant–Appellant, v. STATE MEDICAL BOARD OF OHIO, Appellee–Appellee.
• Court: Ohio Court of Appeals

62 N.E.3d 212

Freeda J. FLYNN, M.D., Appellant–Appellant,

v.STATE MEDICAL BOARD OF OHIO, Appellee–Appellee.

No. 16AP–29.

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

Sept. 20, 2016.

On brief: Dinsmore & Shohl, LLP, Eric J. Plinke, Daniel S. Zinsmaster, and Brendan T. O'Reilly, for appellant. Argued: Brendan T. O'Reilly.

On brief: Michael DeWine, Attorney General, and Emily A. Pelphrey, for appellee. Argued: Emily A. Pelphrey.

SADLER, J.

{¶ 1} Appellant-appellant, Freeda J. Flynn, M.D., appeals from a judgment of the Franklin County Court of Common Pleas affirming the order of appellee-appellee, State Medical Board of Ohio (“Board”), placing appellant's license to practice medicine and surgery in Ohio on probation for three years. For the reasons which follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} Appellant has been licensed to practice medicine and surgery in Ohio since 1994; she is board certified in family medicine. On March 5, 2014, the Board informed appellant it had reason to believe that she was in violation of R.C. 4731.22(B)(19), in that she was impaired due to mental illness. The March 5, 2014 letter cited the following five events in support of the Board's conclusion that appellant might be in violation of R.C. 4731.22(B)(19) : (1) that appellant was fired on January 29, 2010 from the family practice she was employed at, Mercer Health, because on at least two instances her “improper charting could have resulted in harm to the patient had [her] orders been followed,” and because of “inappropriate and disruptive behavior in the office,” including that she had “screamed at staff” and “screamed at patients”; (2) in 2012, at her current practice, there was an incident where she “yelled at [a] patient, threw items, and told him to get out”; (3) during her 1994 application for licensure, she reported to the Board that in 1991 she was diagnosed with Depressive Disorder NOS and was prescribed Prozac; (4) in 2002, she informed the Board that her hospital privileges at a hospital in West Virginia had been summarily suspended, although they were later restored; and (5) in 2013, she reported to the Board that she was not taking any medication for conditions related to mental illness. (State's Ex. 2, Mar. 5, 2014 Letter at 1–2.) The Board ordered appellant to submit to a psychiatric examination by Stephen Noffsinger, M.D.

{¶ 3} Dr. Noffsinger examined appellant on March 27, 2014, and wrote a report regarding his findings on March 30, 2014. Dr. Noffsinger concluded, “with reasonable medical certainty that [appellant] has the mental disorder of Persistent Depressive Disorder * * *, which is characterized by [appellant's] symptoms of chronic mild depression, mild fatigue, anxiety, difficulty tolerating stress and mildly impaired concentration.” (State's Ex. 3, Dr. Noffsinger's Report at 11.) Dr. Noffsinger concluded that her disorder “result[ed] in her being unable to practice medicine according to acceptable and prevailing standards of care,” explaining that “[d]ue to her depressive symptoms, [her] ability to tolerate stress is seriously compromised.” (State's Ex. 3 at 11.) Dr. Noffsinger also concluded that appellant's disorder was amenable to treatment.

{¶ 4} On September 10, 2014, the Board issued a notice of opportunity letter advising appellant that the Board intended to determine whether to limit, revoke, permanently revoke, suspend, reprimand, or place her license on probation for being in violation of R.C. 4731.22(B)(19). The letter advised appellant that she was entitled to a hearing on the matter, and appellant requested a hearing. The Board initially set the hearing for February 9, 2015, but continued the hearing, at appellant's request, to March 17, 2015.

{¶ 5} Dr. Noffsinger was the only witness to testify at the March 17, 2015 hearing. Dr. Noffsinger noted that appellant's odd behaviors, such as yelling at patients and staff, were consistent with his diagnosis of persistent depressive disorder. Dr. Noffsinger explained that appellant's persistent depressive disorder renders her unable to tolerate stress and that accordingly when stressed, “she becomes irritable, she becomes disruptive, she has impaired concentration, and she makes errors.” (Tr. at 36.) Dr. Noffsinger testified that due to her persistent depressive disorder, appellant is unable to practice medicine according to acceptable and prevailing standards of care.

{¶ 6} On April 2, 2015, the hearing examiner issued a “Report and Recommendation,” concluding that appellant was unable to practice according to acceptable and prevailing standards of care due to her mental illness. As such, the hearing examiner found appellant to be in violation of R.C. 4731.22(B)(19) and recommended that the Board suspend appellant's license for an indefinite period of time. Appellant filed written objections to the Report and Recommendation on April 24, 2015.

{¶ 7} The Board considered appellant's objections at its May 13, 2015 meeting. The Board adopted the hearing examiner's findings of fact and conclusions of law but amended the proposed order from indefinite suspension to a three-year term of probation. The terms of appellant's probation include that she submit to Board-approved and Board-monitored psychiatric treatment and that she attend and complete courses dealing with disruptive physicians, professional ethics, and office management.

{¶ 8} Appellant appealed the Board's order to the Franklin County Court of Common Pleas pursuant to R.C. 119.12. The court of common pleas found reliable, probative, and substantial evidence to support the Board's order and concluded that the order was in accordance with law. The court overruled appellant's assigned errors concerning alleged violations of Title II of the American with Disabilities Act (“ADA”) and R.C. 4112.02(A), and alleged due process violations. As such, the lower court affirmed the Board's order.

II. ASSIGNMENTS OF ERROR

{¶ 9} Appellant appeals, assigning the following errors for our review:

[1.] The Court of Common Pleas Erred in Affirming the Board's Order Because the Order Violates State and Federal Laws Prohibiting Discrimination Against Individuals with Disabilities, and Therefore the Order is not in Accordance with Law.

[2.] The Court of Common Pleas Erred by Finding the Board's Order is Supported by a Preponderance of Substantial, Probative, and Reliable Evidence Because the Board Failed to Prove Any of the Three Critical Elements of the Alleged Violation.

[3.] The Court of Common Pleas Erred in Affirming The Board's Order Because the Legal Standard Underlying the Board's Action Fails to Accurately Find a Violation of the Statute Alleged, and Therefore the Order is not in Accordance with Law.

[4.] The Court of Common Pleas Erred in Affording the Board's Evaluation of Evidence Deference when No Deference was Due.

[5.] The Court of Common Pleas Erred in Affirming The Board's Order Because the Hearing Provided to Dr. Flynn was Unfair, in Violation of State and Federal Protections of Dr. Flynn's Rights to Due Process of Law, and Therefore The Order is not in Accordance with Law.

III. STANDARD OF REVIEW

{¶ 10} Under R.C. 119.12, a common pleas court, in reviewing an order of an administrative agency, must consider the entire record to determine whether reliable, probative, and substantial evidence supports the agency's order and the order is in accordance with law. Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 110–11, 407 N.E.2d 1265 (1980). The Supreme Court of Ohio has defined the concepts of 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.

Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571, 589 N.E.2d 1303 (1992).

{¶ 11} 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.’ ” Lies v. Veterinary Med. Bd., 2 Ohio App.3d 204, 207, 441 N.E.2d 584 (1st Dist.1981), quoting Andrews v. Bd. of Liquor Control, 164 Ohio St. 275, 280, 131 N.E.2d 390 (1955). The common pleas court must give due deference to the administrative agency's resolution of evidentiary conflicts, but “the findings of the agency are by no means conclusive.” Conrad at 111, 407 N.E.2d 1265. The common pleas court conducts a de novo review of questions of law, exercising its independent judgment in determining whether the administrative order is “in accordance with law.” Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466, 471, 613 N.E.2d 591 (1993).

{¶ 12} An appellate court's review of an administrative decision is more limited than that of a common pleas court. Pons v. State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). The appellate court is to determine only whether the common pleas court abused its discretion. Id. Absent an abuse of discretion, a court of appeals may not substitute its judgment for that of an administrative agency or the common pleas court. Id. An appellate court, however, has plenary review of purely legal questions. Big Bob's, Inc. v. Ohio Liquor Control Comm., 151 Ohio App.3d 498, 2003-Ohio-418, 784 N.E.2d 753, ¶ 15 (10th Dist.).

A. First Assignment of Error—Discrimination

{¶ 13} Appellant's first assignment of error asserts that the Board's order violates state and federal laws prohibiting discrimination against individuals with disabilities.

{¶ 14} The ADA provides that “no qualified individual with a disability shall, by reason...