Raymundo, In re

• Decision Date: 05 April 1990
• Docket Number: No. 89AP-1221,89AP-1221
• Citation: 586 N.E.2d 1149,67 Ohio App.3d 262
• Parties: In re RAYMUNDO. *
• Court: Ohio Court of Appeals

Page 262

67 Ohio App.3d 262

586 N.E.2d 1149

In re RAYMUNDO. ^*

No. 89AP-1221.

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

Decided April 5, 1990.

Keating, Keating & Kuzman and W. Leo Keating, Warren, for appellant Emmanuel Raymundo, M.D.

Anthony J. Celebrezze, Jr., Atty. Gen., and Steven P. Dlott, Asst. Atty. Gen., for appellee State Medical Bd. of Ohio.

WHITESIDE, Judge.

Appellant, Emmanuel Raymundo, M.D., appeals from a judgment of the Franklin County Court of Common Pleas affirming the decision of the State Medical Board of Ohio to suspend appellant's medical license for one year and raises two assignments of error, as follows:

"1. The Court of Common Pleas erred to the prejudice of appellant in finding that the decision of the State Medical Board was supported by reliable, probative and substantial evidence and is in accordance with law.

"2. The Court of Common Pleas erred to the prejudice of the appellant in failing to find that the delay of appellee and appellee's failure to comply with statutory procedural requirements rendered the entire proceeding invalid."

By letter dated February 13, 1987, appellant, a licensed physician, was informed by the State Medical Board of Ohio ("board"), of disciplinary action it proposed to take against appellant based on alleged violations by appellant of provisions of R.C. 4731.22. Specifically, the letter stated that appellant's prescribing of certain drugs constituted "failure to use reasonable care discrimination in the administration of drugs"; "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease"; "selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes"; and "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." R.C. 4731.22(B)(2), (3), and (6). The letter also stated that appellant's recent misdemeanor conviction of attempted illegal processing of drug documents constituted a "conviction of a misdemeanor committed in the course of his practice" under R.C. 4731.22(B)(11).

Appellant requested a hearing which was subsequently held on January 25 and March 7, 1988, before a hearing examiner of the board. On February 10, 1989, a journal entry was entered which indicated that the hearing examiner who had conducted appellant's hearing was no longer with the board and that the new hearing examiner would, based upon the transcripts, testimony, and exhibits filed in appellant's case, issue a report and recommendation within thirty days.

Subsequently, on March 13, 1989, the board's new hearing examiner rendered her report and recommendation containing findings of fact and conclusions of law. The hearing examiner found that, during the course of treating an undisclosed patient ("Patient A"), appellant wrote prescriptions in the name of Patient A for Ambenyl Expectorant, a Schedule V controlled substance, Tylenol # 4, a Schedule III controlled substance, and Valium 10 mg., a Schedule IV controlled substance, all in daily dosages that exceeded the maximum recommended daily dosage set out in the Physicians' Desk Reference.

The hearing examiner also found that Patient A had been diagnosed by appellant as suffering from myocardial ischemia, hiatus hernia, spondylolisthesis, anxiety from family problems, severe hypertension, chronic bronchitis, and an ovarian cyst; that the board's expert witness disagreed with the majority of appellant's diagnoses of Patient A as well as the drugs prescribed, both in form and duration; that appellant testified that many of the prescriptions in evidence written in Patient A's name were actually for both Patient A and her husband; that appellant had recently been convicted of two misdemeanor counts of attempted illegal processing of drug documents; but that appellant's three expert witnesses testified that, given appellant's diagnoses of Patient A, the drugs prescribed were appropriate.

The hearing examiner concluded that appellant's conduct violated R.C. 4731.22(B)(2), (3), (6), and (10), and recommended that appellant's license be revoked but that the revocation be stayed and appellant's license suspended for at least one year. Appellant filed objections to the report, but the board adopted the report and recommendations in full.

Appellant then filed an appeal to the Franklin County Common Pleas Court, during the pendency of which he was granted a stay from the board's order suspending his license. The common pleas court affirmed the order of the board, and appellant then timely filed the instant appeal.

By his first assignment of error, appellant contends that the judgment of the trial court is inconsistent with the evidence. In this regard, we must determine whether the common pleas court erred in concluding that the order of the board was supported by reliable, probative, and substantial evidence and was in accordance with law. Haley v. Ohio State Dental Bd. (1982), 7 Ohio App.3d 1, 3, 7 OBR 1, 3, 453 N.E.2d 1262, 1265. As to the factual issues, we may not substitute our conclusions for that of the trial court; rather, we are limited to deciding whether the order of the common pleas court constituted an abuse of discretion. Angelkovski v. Buckeye Potato Chips Co. (1983), 11 Ohio App.3d 159, 11 OBR 242, 463 N.E.2d 1280; Kinney v. Dept. of Adm. Services (1984), 14 Ohio App.3d 33, 14 OBR 37, 469 N.E.2d 1007. However, we apply our own determinations on questions of law.

Appellant contends that the evidence indicates, at best, differences of opinion among the testifying physicians and that such evidence does not demonstrate bad faith or incompetence. However, the board did not base its decision on bad faith or incompetence but on appellant's violation of various provisions of R.C. 4731.22, none of which contain standards of "bad faith" or "incompetence." The board was free to accept the opinion evidence of its experts rather than those of appellant's.

The record reasonably supports the board's conclusion that appellant's treatment of Patient A constituted grounds for suspension of his license. As stated above, appellant prescribed three drugs which are at issue here: Tylenol # 4, Valium and Ambenyl Expectorant. Appellant testified that he prescribed Tylenol # 4 to treat the pain caused by myocardial ischemia and hiatus hernia. Dr. Guthrie, the board's expert witness, testified first that only a "one in a million" chance existed that a female the age of Patient A would actually suffer from myocardial ischemia and, secondly, that, even if she suffered from that malady, Tylenol # 4 was not an appropriate treatment. Dr. Guthrie also testified that Tylenol # 4 was inappropriate medication to treat hiatus hernia.

Appellant...