Niehaus, In re

• Decision Date: 28 March 1989
• Docket Number: No. 88AP-658,88AP-658
• Citation: 62 Ohio App.3d 89,574 N.E.2d 1104
• Parties: In re NIEHAUS.
• Court: Ohio Court of Appeals

Page 89

62 Ohio App.3d 89

574 N.E.2d 1104

In re NIEHAUS.

No. 88AP-658.

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

Decided March 28, 1989.

James N. Perry, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Christopher J. Costantini, for appellee.

REILLY, Judge.

This is an appeal from a judgment of the Franklin County Court of Common Pleas.

Appellant, Ferdinand J. Niehaus, M.D., was notified by appellee, Ohio Medical Board ("board"), of particular events which occurred in 1985. Appellee proposed disciplinary action against appellant pursuant to the Medical Practice Act.

Appellant requested a formal hearing in a letter to the board dated February 3, 1986. A hearing was held on September 25, 1986. The board, on December 3, 1986, allowed appellant to include in the record certified copies of an entry granting the expungement and sealing of his conviction in the Hamilton County Municipal Court.

Dr. James A. Barnes, a member of the board, submitted his report and recommendation on June 26, 1987. Appellant filed objections to the report and recommendation on July 13, 1987. The board adopted the report.

Appellant filed a notice of appeal to the Franklin County Court of Common Pleas. Appellant was granted an order by the court staying the board's decision pending appeal. The court found in its judgment entry that except for one of eight issues raised by appellant, the order was supported by reliable, probative and substantial evidence and was in accordance with law. The court affirmed the board's order as modified.

The case was initiated by a citation letter to appellant from the board. The letter alleged that appellant had violated several statutory provisions, including R.C. 4731.22(B)(10), misdemeanor committed in the course of practice; 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 treatments of disease; R.C. 4731.22(B)(3), selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes, or conviction for violation of any federal or state law regulating the possession, distribution, or use of any drug; and 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.

There was a hearing, as noted above, before Dr. Barnes, who issued a report and recommendation finding that appellant had violated particular provisions of the Medical Practice Act. Barnes recommended a penalty for these violations, basically suspension of appellant's prescribing license pending remedial pharmacological education.

Appellant advances the following assignments of error:

"I. The decision of the Common Pleas Court is fatally flawed and constitutes error prejudicial to Dr. Niehaus because:

"(1) The decision demonstrates that the court applied an incorrect standard of review "(2) The Common Pleas Court failed to remand to the State Medical Board on the issue of penalty after finding that a portion of the board's decision was not supported by the record;

"(3) The Common Pleas Court refused, upon request by Dr. Niehaus, to set forth its reasons for the decision.

"II. The Common Pleas Court erred in concluding that the State Medical Board may use a sealed record of conviction in order to find a violation of R.C. 4731.22(B)(10) which authorizes the imposition of discipline on a physician for a misdemeanor committed in the course of practice.

"III. The Common Pleas Court erred in concluding that the record supports the board's conclusion that Dalmane was not an appropriate medication for Mrs. Niehaus or Irene Kerr.

"IV. The Common Pleas Court erred in concluding that the record supported the board's finding that when an employee, without authorization, disposed of outdated medications in a dumpster, Dr. Niehaus personally violated R.C. 4733.22(B)(2) and (B)(6).

"V. The Common Pleas Court erred in concluding that the record supports the board's conclusion that Dr. Niehaus violated R.C. 4731.22(B)(2), (B)(3), (B)(6) by prescribing Percodan for himself on July 8, 1985.

"VI. The Common Pleas Court erred in concluding that the record supported the board's conclusion that Dr. Niehaus violated R.C. 4731.22(B)(2), (B)(3), and (B)(6) by prescribing Tedral, Tussen and Librium for his own personal use.

"VII. The Common Pleas Court erred in concluding that the record supported the board's conclusion that Dr. Niehaus violated R.C. 4731.22(B)(2), (B)(3), and (B)(6) when Dr. Niehaus prescribed Halcion for Teresa Newsome.

"VIII. The Common Pleas Court erred in concluding that the record supports the board's conclusion that Dr. Niehaus violated R.C. 4731.22(B)(2), (B)(3) and (B)(6) because he ordered Demerol for the 'Niehaus Medical Center, Inc.' using a prescription form which contained his name individually, thereby creating a presumption that the Demerol was issued for his personal use."

As to appellant's first assignment of error, a court speaks through its judgment entry. In re Petition (1948), 150 Ohio St. 393, 398, 38 O.O. 258, 260, 83 N.E.2d 58, 61. The signed judgment entry in this case states: " * * * The Court further finds that the order is otherwise in accordance with law."

Moreover, this court wrote in In the Matter of Van Buren Loc. School Dist. (May 11, 1976), Franklin App. No. 75AP-702, unreported:

" * * * In addition, although the trial court erred in not using the exact language contained in R.C. 119.12, the trial court unquestionably found, by its order, that the order is supported by reliable, probative and substantial evidence and that the order is in accordance with law. Although it is undoubtedly a better practice for the court to use the language contained in the statute, we find no requirement, either in the statute or case law, which requires the use of the exact language used in the statute. * * * "

It is conceded that in this case, the decision did not specifically include the words "in accordance with law," but the judgment entry, in part, reads as follows:

"The Court has evaluated the arguments on appeal, and fully reviewed the transcript, exhibits and the complete record before it. The Court hereby finds that the decision of the State Medical Board is supported by reliable, probative and substantial evidence, with the exception that Finding of Fact Number 13 and Conclusion Number 6 (concerning the April 9, 1985 prescription for two (2) vials of Demerol issued for the Niehaus Medical Center) which were contained in the Report and Recommendation as adopted by the State Medical Board in its order. Those portions of the Order are not supported by reliable, probative and substantial evidence. The Court further finds that the order is otherwise in accordance with law."

Hence, the court by its entry applied the correct standard of review. The finding by the common pleas court that part of the board's order was not supported by reliable, probative and substantial evidence, did not require a remand of the case to the board. R.C. 119.12 provides, in pertinent part:

"The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law. * * * "

The provisions of the statute provide that a court may "modify" the order or "make such other ruling as supported by reliable, probative and substantial evidence." The application of such permissive language allows the court to remand the case to an agency where the order, in its entirety or in part, has been found to be unsupported by reliable, probative and substantial evidence. Such action, however, is not required by the statute.

The case of Chapman v. Ohio State Dental Bd. (1986), 33 Ohio App.3d 324, 515 N.E.2d 992, cited by appellant, is distinguishable. The court in Chapman only recognized that a common pleas court may remand a case once it finds that the board's decision is unsupported by reliable, probative and substantial evidence. The court did not determine that such action is required. R.C. 119.12 allows a common pleas court the option of maintaining the agency's sanction while finding a part of an order insufficient. Such an option is justified where, as in this case, the court reverses a minimal part of the findings against appellant.

The common pleas court is not required to address each assignment of error raised by an appellant pursuant to R.C. 119.12. That section, which governs appellant's appeal to the common pleas court, specifically limits a review to a determination of 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, 17 O.O.3d 65, 407 N.E.2d 1265. The court may consider the errors assigned as relating to the validity of the agency's order, but it is not required to expressly rule on each assignment of error.

R.C. 119.12, which governs this appeal, takes precedence over the generally phrased provisions of R.C. 2505.01 to 2505.45. See In the Matter of Wozniak (Apr. 30, 1985), Franklin App. No. 84AP-602, unreported, 1985 WL 10268. Hence, there is no requirement for the common pleas court to address all the assignments of error.

Appellant's first assignment of error is overruled.

In the second assignment of error, appellant alleges that an expunged misdemeanor conviction may not be a basis for finding that a physician...