Gross v. Ohio State Medical Board, 2008 Ohio 6826 (Ohio App. 12/23/2008)

• Decision Date: 23 December 2008
• Docket Number: No. 08AP-437.,08AP-437.
• Parties: Robert C. Gross, D.O., Appellant-Appellant, v. Ohio State Medical Board, Appellee-Appellee.
• Court: Ohio Court of Appeals

Page 1

2008 Ohio 6826

Robert C. Gross, D.O., Appellant-Appellant, v. Ohio State Medical Board, Appellee-Appellee.

No. 08AP-437.

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

Rendered on December 23, 2008.

Appeal from the Franklin County Court of Common Pleas, C.P.C. No. 07CVF08-11594.

Kevin P. Byers Co., LPA, and Kevin P. Byers, for appellant.

Nancy H. Rogers, Attorney General, and Kyle C. Wilcox, for appellee.

OPINION

T. BRYANT, J.

{¶1} Appellant, Robert C. Gross, D.O. ("appellant" or "Dr. Gross"), appeals from a judgment of the Franklin County Court of Common Pleas affirming an order of appellee, the Ohio State Medical Board ("board" or "Ohio board"), which limited Dr. Gross' certificate to practice osteopathic medicine and surgery in Ohio. Because the common pleas court did not abuse its discretion by affirming the board's order, we affirm the judgment of the common pleas court.

{¶2} Dr. Gross is a general surgeon in solo practice in Michigan. Besides holding medical licensure in Michigan, Dr. Gross also holds medical licenses in New Mexico and Ohio. Dr. Gross previously held an active medical license in Colorado; however, in September 2006, this medical license was placed on permanent inactive status.

{¶3} By notice dated December 14, 2006, the Ohio board informed Dr. Gross that it intended to determine (1) whether to limit, revoke, permanently revoke, suspend, refuse to register or reinstate his certificate to practice osteopathic medicine and surgery in Ohio, or (2) whether to place Dr. Gross on probation. Claiming that Dr. Gross violated former R.C. 4731.22(B)(22),¹ the board alleged:

On or about September 21, 2006, the Colorado State Board of Medical Examiners [Colorado Board] approved a stipulation and Final Agency Order wherein * * * you agreed to have your license to practice medicine in the State of Colorado [Colorado license] placed on inactive status. You further agreed that said inactivation shall be permanent and that you shall not apply to reactivate your Colorado license at any time in the future. * * *

{¶4} Dr. Gross requested an administrative hearing pursuant to R.C. Chapter 119. After an evidentiary hearing, a hearing examiner issued a report and recommendation wherein she rendered findings of fact, a conclusion of law, and a proposed order. In her conclusion of law, the hearing examiner found that the action of the Colorado State Board of Medical Examiners ("Colorado board") constituted grounds for the Ohio board to render discipline against Dr. Gross under former R.C. 4731.22(B)(22). Accordingly, the hearing examiner issued a proposed order for the board's consideration.

{¶5} Dr. Gross filed objections to the hearing examiner's report and recommendation. Upon filing a timely request, Dr. Gross was granted permission to address board members. Confirming in part and amending in part the hearing examiner's report and recommendation, including the proposed order, the board issued an order wherein it temporarily limited and restricted Dr. Gross' certificate to practice osteopathic medicine and surgery, and imposed probationary conditions. By this order, the board required Dr. Gross (1) to refrain from practicing in Ohio without prior approval by the board; (2) to notify the board if he intended to begin practicing in Ohio; and (3) to submit a plan of practice if he were to begin practice in Ohio. By its order, the board also imposed probationary conditions upon Dr. Gross if he were to practice in Ohio, and the board required Dr. Gross to provide a copy of the board's order to employers and hospitals where Dr. Gross held privileges or appointments, and to other state licensing authorities.

{¶6} Claiming that the board's order was not supported by reliable, probative, and substantial evidence, and that the board's order was not in accordance with law, Dr. Gross appealed from the board's order to the Franklin County Court of Common Pleas. Besides appealing from the board's order, Dr. Gross contemporaneously moved the common pleas court to stay execution of the board's order.

{¶7} The common pleas court granted Dr. Gross' motion for a stay provided that during the pending appeal Dr. Gross did not practice medicine or surgery in Ohio, and if Dr. Gross were to practice in Ohio during this time, any such practice would be considered practicing osteopathy without a certificate, a violation of R.C. 4731.43. Finding that the board's order, which limited Dr. Gross' certificate to practice osteopathic medicine and surgery was supported by reliable, probative, and substantial evidence, and was in accordance with law, the common pleas court later affirmed the board's order.

{¶8} From the common pleas court's judgment affirming the board's order, Dr. Gross now appeals. Dr. Gross advances two errors for our consideration:

I. FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO APPELLANT'S PREJUDICE WHEN IT FOUND THE ORDER OF THE STATE MEDICAL BOARD OF OHIO IN ACCORDANCE WITH LAW.

II. SECOND ASSIGNMENT OF ERROR: THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO APPELLANT'S PREJUDICE WHEN IT FOUND THE ORDER OF THE STATE MEDICAL BOARD OF OHIO IS SUPPORTED BY RELIABLE, PROBATIVE, AND SUBSTANTIAL EVIDENCE.

{¶9} Because Dr. Gross' assignments of error are interrelated, we shall jointly consider them. By his assignments of error, Dr. Gross contends that (1) the board's action violated Dr. Gross' right to procedural due process because the board purportedly disciplined Dr. Gross for presumed standard of care violations under division (B)(6) of former R.C. 4731.22, rather than for a violation of division (B)(22) under former R.C. 4731.22, as stated in its notice to Dr. Gross; and (2) the Colorado board's action did not constitute a cognizable basis under former R.C. 4731.22(B)(22) to support the Ohio board's action.

{¶10} Claiming that Dr. Gross challenges for the first time in this appeal whether the Colorado board's action constitutes a cognizable basis to support discipline under former R.C. 4731.22(B)(22), the board asserts Dr. Gross has waived this issue for purposes of appeal. Accordingly, the board urges us to disregard this argument by Dr. Gross.

{¶11} As a general rule, an appellate court will not consider arguments that were not raised in a court below. Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274, 279, modified on other grounds by Dombroski v. WellPoint, Inc., 119 Ohio St.3d 506, 2008-Ohio-4827, citing State v. 1981 Dodge Ram Van (1988), 36 Ohio St.3d 168. This waiver doctrine, however, is not absolute. Belvedere Condominium Unit Owners' Assn., at 279. (Citations omitted.) "When an issue of law that was not argued below is implicit in another issue that was argued and is presented by an appeal, [an appellate court] may consider and resolve that implicit issue. To put it another way, if [an appellate court] must resolve a legal issue that was not raised below in order to reach a legal issue that was raised, [it] will do so." Id.

{¶12} Here, in his appeal to the common pleas court, Dr. Gross claimed, among other things, that the board's action was not in accordance with law. Dr. Gross' claim that the board lacked a cognizable basis to support an order disciplining Dr. Gross is implicit in a claim that the board failed to act in accordance with law. Thus, to the extent that Dr. Gross' claim that the board lacked a cognizable basis to support an order disciplining Dr. Gross is implicit in his claim that the board failed to act in accordance with law, we shall consider Dr. Gross' argument in this appeal.

{¶13} Under R.C. 119.12, when a common pleas court reviews an order of an administrative agency, it must consider the entire record to determine whether the agency's order is supported by reliable, probative, and substantial evidence and is in accordance with law. Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 110-111; Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 280. See, also, Our Place, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St.3d 570, 571 (defining reliable, probative, and substantial evidence).

{¶14} A 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. Ohio Veterinary Med. Bd. (1981), 2 Ohio App.3d 204, 207, quoting Andrews, at 280. In its review, a common pleas court must give due deference to the administrative agency's resolution of evidentiary conflicts, but the findings of the agency are not conclusive. Conrad, at 111.

{¶15} An appellate court's review of an administrative decision is more limited than that of a common pleas court. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, rehearing denied, 67 Ohio St.3d 1439. In Pons, the Supreme Court of Ohio explained:

* * * While it is incumbent on the trial court to examine the evidence, this is not a function of the appellate court. The appellate court is to determine only if the trial court has abused its discretion, i.e., being not merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. Absent an abuse of discretion on the part of the trial court, a court of appeals may not substitute its judgment for [that of an administrative agency] or a trial court. Instead, the appellate court must affirm the trial court's judgment. * * *

Id. at 621. But, see, Smith v. Ohio Liquor Control Comm. (Dec. 10, 1998), Athens App. No. 98CA03, at fn. 1.²

{¶16} Although in reviewing an administrative decision it is incumbent upon an appellate court to determine only if a common pleas court has abused its discretion, Pons, at 621, an appellate court does, however, have plenary review of questions of law....