Gingo v. State Medical Bd.

Decision Date11 January 1989
Docket Number13490,Nos. 13485,s. 13485
Citation564 N.E.2d 1096,56 Ohio App.3d 111
PartiesGINGO, Appellant, v. STATE MEDICAL BOARD, Appellee. *
CourtOhio Court of Appeals

Syllabus by the Court

1. The notice of appeal required to be filed with a state agency in an appeal of an adjudication order pursuant to R.C. 119.12 is presumptively timely delivered when it is shown to have been mailed within sufficient time for it to have arrived at the agency before the fifteen-day time limit. In other words, it is presumed that once the notice of appeal timely enters the ordinary course of the mails, the notice will be timely delivered.

2. The party contesting the timeliness of an R.C. 119.12 notice of appeal has the burden of proof of rebutting the presumption resulting from the timely mailing of the notice. An administrative agency may not overcome this presumption by merely introducing the agency's time-stamped date of reception of the notice of appeal.

Robert W. Blakemore and Robert C. Meeker, Akron, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Cheryl J. Nester, Columbus, for appellee.

BAIRD, Presiding Judge.

The Ohio State Medical Board appeals and Anthony J. Gingo, M.D., cross-appeals from the order of the trial court which modified the State Medical Board's decision to revoke Dr. Gingo's medical license. We affirm.

On June 11, 1985, the State Medical Board ("board") held a meeting at which time the board agreed to issue a citation letter to Dr. Gingo. Dr. Raush, a member of the board, was assigned to preside over the hearing if Dr. Gingo requested one. By letter dated June 17, 1985, the board notified Dr. Gingo that he potentially violated:

"1. [Former] R.C. 4731.22(B)(10): [']Conviction of a misdemeanor committed in the course of his practice[']; and

"2. 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 the selection of drugs or other modalities for treatment of disease.[']"

The board issued the first charge based on an incident where the police had stopped a car driven by a patient of Dr. Gingo for an unrelated traffic offense. In their search of the car, the police discovered an envelope containing amphetamines. The face of the envelope lacked the doctor's name and address. Dr. Gingo's patient indicated to the police that he had received the medication from Dr. Gingo. As a result of Dr. Gingo's omitting to affix his name and address to the envelope, he was convicted of the misdemeanor crime of failing to properly label the medication he had dispensed. The second charge that the board levied against Dr. Gingo stemmed from his purchases of large numbers of dosage units of amphetamines for the years 1980, 1982, 1983 and 1984.

At a September 11, 1985 meeting, the board reviewed additional evidence concerning Dr. Gingo's practice. After reviewing the evidence, the board decided to amend the citation letter to include:

"1. R.C. 4731.22(B)(3): Selling and prescribing, giving away or administering drugs for other than legal and legitimate purposes; and

"2. R.C. 4731.22(B)(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.[']"

Both of these charges were derived from the doctor's alleged excessive purchases of amphetamines during specific years. At the meeting, Dr. Raush, the hearing examiner assigned to Dr. Gingo's case and a member of the board, excused himself from the meeting during the discussion of the additional evidence and during the voting on amending the citation letter. In addition, the staff attorney who later presided was present during the discussion and vote.

Upon receipt of the citation letter, Dr. Gingo requested a hearing before the board to determine the validity of the charges. Sometime before the actual hearing, the board changed the hearing examiner from Dr. Raush to Lauren Lubow, the staff attorney originally responsible for scheduling case assignments. The hearing took place on December 10, 1985 and December 17, 1985. The evidence adduced at the hearing revealed that Dr. Gingo originally had started his practice as a family practitioner. He later began to specialize in the treatment of obesity. According to the doctor's own testimony as well as the exhibits introduced into evidence, Dr. Gingo had implemented a weight control plan which primarily involved dieting, exercising and the use of anorectics or amphetamines over an extended period of years.

The hearing examiner issued her findings of fact and conclusions of law after the hearing. The facts as determined by the hearing examiner are that Dr. Gingo purchased a total of 1,260,000 dosage units of methamphetamine in 1980, 1982 and 1983, and 50,000 dosage units of phentermine in 1984; that Dr. Gingo was convicted of failing to properly label the drugs he gave to his patients; and that Dr. Gingo routinely used methamphetamine as part of a long-term treatment of obesity. From these facts, the hearing examiner concluded:

"Excessive or otherwise inappropriate dispensing of controlled substances is not an uncommon allegation confronted by this board. However, the matter of Dr. Anthony J. Gingo differs from many drug-related cases, in that it is based primarily on the ordering and dispensing of massive quantities of scheduled stimulants rather than on a patient by patient analysis of dispensing practices.

"Dr. Gingo's ordering of scheduled drugs is nothing short of amazing. In 1983 and 1984, Dr. Gingo's purchases of methamphetamine exceeded even those of hospitals and pharmacies in the state of Ohio. As a methamphetamine purchaser, Dr. Gingo outpaced virtually everyone in the nation in 1984, after having been the second largest purchaser the year before.

"Dr. Gingo's explanation of the role these drugs play in his medical practice only reinforces the magnitude of the problem. By his own admission, Dr. Gingo considers the continuous maintenance of a patient on methamphetamine for ten years, fifteen years, or even a lifetime to be an acceptable practice, so long as a desired weight is maintained. He does not view the habituating capabilities of methamphetamine to be of major importance. Patients are automatically placed on methamphetamine if they are unable to stick with the recommended diet.

"In short, Dr. Gingo's weight loss 'system' is precisely the opposite of what one would expect to find in a program purported to enhance overall good health. In truth, his proposed solution to an admittedly significant problem--obesity--ultimately promotes a far more alarming epidemic: drug misuse and abuse.

"Dr. Gingo's approach to weight control is not unique. As Dr. Jack Davies attests, there are practitioners who believe that the dangers reputedly posed by amphetamines and similar stimulants when used as anorectic agents are greatly exaggerated. Nevertheless, the fact that a relatively small number of physicians endorse a particular course of treatment certainly does not mean that it should be condoned. Even Dr. Louis Lasagna, upon whose findings Dr. Gingo appears to rely extensively, specifies that long-term treatment with amphetamines should be intermittent. Dr. Davies' broader interpretations are unsupported by any participation in clinical or laboratory studies involving amphetamines in the treatment of obese patients. In addition, the position which both Dr. Davies and Dr. Gingo expound not only goes against the manifest weight of scientific evidence, but even contradicts the warnings of the drug manufacturers themselves."

The hearing examiner recommended that Dr. Gingo's license to practice medicine should be revoked. Dr. Gingo timely filed objections to the report. On August 14, 1986, the members of the board voted to confirm Lubow's findings of fact and conclusions of law.

The board issued its decision on August 15, 1986. Dr. Gingo filed a notice of appeal with the Summit County Court of Common Pleas on August 29, 1986. (August 30 was a Saturday; August 31 was a Sunday; and September 1, Monday, was Labor Day.) On September 3, 1986, more than fifteen days after the board's decision was issued, the board stamped as received Dr. Gingo's notice of appeal. Consequently, at the trial court, the board moved to dismiss Dr. Gingo's appeal because it was not filed within the fifteen-day time limit prescribed by R.C. 119.12. The trial court held that the board had constructively received the notice within the fifteen-day time period.

After deciding this jurisdictional issue in favor of Dr. Gingo, the trial court proceeded to hear additional evidence on Dr. Gingo's allegations that he was denied a fair and impartial hearing. As well as the new evidence presented, the trial court had before it a transcript of the hearing held before the board, the exhibits and the briefs of both parties. The trial court found that the hearing was not in accordance with law because it was conducted by the board's attorney and not a board member. Second, the trial court determined that only one of the violations upon which the board formed the basis to revoke the doctor's license was supported by reliable, probative and substantial evidence. The court thereupon modified the order of the board. The trial court upheld the violation which stemmed from Dr. Gingo's conviction for failure to properly label his medication. Therefore, instead of permanently revoking Dr. Gingo's license, the trial court suspended his license for a fifteen-day period.

The board appeals, and Dr. Gingo cross-appeals the trial court's decision to modify the board's order.

The Board's Assignment of Error No. I

"The lower court erred as [a] matter of law in failing to dismiss the appeal for lack of jurisdiction, as Gingo had failed to timely file his notice of appeal * * *."

The board...

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