State ex rel. Heath v. Ohio State Med. Bd.

• Decision Date: 15 July 1992
• Docket Number: No. 91-1860,91-1860
• Parties: The State ex rel. HEATH, Appellant, v. STATE MEDICAL BOARD OF OHIO et al., Appellees.
• Court: Ohio Supreme Court

Page 186

64 Ohio St.3d 186

593 N.E.2d 1386

The State ex rel. HEATH, Appellant, v. STATE MEDICAL BOARD OF OHIO et al., Appellees.

No. 91-1860.

Supreme Court of Ohio.

Submitted April 27, 1992.

Decided July 15, 1992.

The instant controversy originated from disciplinary charges initiated by the State Medical Board of Ohio ("board") against appellant, Robert E. Heath, M.D., under R.C. 4731.22(B). Following a hearing, the hearing examiner, in a report dated March 1, 1991, issued proposed findings of fact and conclusions of law, recommending that appellant's certificate to practice medicine and surgery in Ohio be revoked. At a hearing on April 10, 1991, the board was unable to reach a decision by majority vote and, therefore, tabled the matter until May 8, 1991.

On May 1, 1991, appellant filed a complaint against the board and its individual members, appellees herein, seeking a writ of prohibition declaring all board action regarding appellant's certificate void for lack of jurisdiction and commanding the board to take no further action. At its meeting of May 8, 1991, the board confirmed the hearing officer's recommendation and, by order dated May 10, 1991, revoked appellant's certificate to practice medicine and surgery in Ohio. On June 10, 1991, appellant filed an amended complaint in the case to include a request for a writ of mandamus directing the board to rescind its May 10, 1991 order. The court of appeals sustained appellees' motions to dismiss for failure to state a claim for which relief could be granted and because appellant had an adequate remedy at law.

The cause is before this court upon an appeal as of right.

Lindhorst & Dreidame and Thomas M. Tepe, Cincinnati, for appellant.

Lee I. Fisher, Atty. Gen. and Susan C. Walker, Columbus, for appellees.

PER CURIAM.

R.C. 4731.23(D), provides:

"The board shall render a decision and take action within sixty days following the receipt of the hearing examiner's proposed finding of fact and conclusions of law or within any longer period mutually agreed upon by the board and the certificate holder."

Clearly, the board did not take action within the sixty-day period. However, the court of appeals sustained appellees' motions to dismiss, finding:

"The underlying contention of relator is that * * * respondents lack jurisdiction because they did not act timely. Again, the remedy of appeal constitutes an adequate remedy at law. * * * [T]here is no statutory provision that failure to act timely deprives respondent board of the jurisdiction to act * * *.

"This is not a case where an administrative tribunal is either totally without jurisdiction to act or is usurping jurisdiction which it does not...