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

• Decision Date: 29 June 2007
• Docket Number: No. 06AP-1072.,06AP-1072.
• Citation: 2007 Ohio 3328,874 N.E.2d 1256,172 Ohio App.3d 365
• Parties: STATE of Ohio ex rel. GELESH, Appellant, v. STATE MEDICAL BOARD OF OHIO, Appellee.
• Court: Ohio Court of Appeals

874 N.E.2d 1256

172 Ohio App.3d 365

2007-Ohio-3328

STATE of Ohio ex rel. GELESH, Appellant, v. STATE MEDICAL BOARD OF OHIO, Appellee.

No. 06AP-1072.

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

Decided June 29, 2007.

Porter, Wright, Morris & Arthur, L.L.P., Eric J. Plinke, and Kristin E. Matisziw, Columbus; Lambert & MacDonald, Co., L.P.A., and John D. Lambert, Akron, for appellant.

Marc Dann, Attorney General, and Kyle C. Wilcox and Damion M. Clifford, Assistant Attorneys General, for appellee.

FRENCH, Judge.

{¶ 1} Relator-appellant, Gary Charles Gelesh, D.O., appeals from the judgment of the Franklin County Court of Common Pleas dismissing his joint complaint for declaratory and injunctive relief and petition for a writ of mandamus against respondent-appellee, the State Medical Board of Ohio. For the following reasons, we affirm.

{¶ 2} On May 19, 2005, pursuant to R.C. 119.07, the board mailed a notice of opportunity for a hearing to Dr. Gelesh, a practitioner of osteopathic medicine. The notice informed Dr. Gelesh of the board's intention to determine whether to limit, revoke, suspend, or refuse to register or reinstate his certificate to practice osteopathic medicine and surgery or to reprimand him or place him on probation for "`[a] departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances'" pursuant to R.C. 4731.22(B)(6).

{¶ 3} The board's allegation that Dr. Gelesh violated R.C. 4731.22(B)(6) arose out of Dr. Gelesh's treatment of "Patient 1" in February 2002. In the notice, the board alleged the following facts:

On or about February 7, 2002, Patient 1, approximately 88 years of age, was transported by ambulance from an assisted living facility to the emergency room of Akron General Medical Center, Akron, Ohio, where you were providing services as an emergency room physician. Upon your examination of Patient 1, she was found to be hypotensive with complaints of abdominal pain. Patient 1 had a history of heart disease, and had executed a do not resuscitate/comfort care only directive. You concluded that Patient 1 was not a surgical candidate and she was provided comfort care treatment in the emergency room under your direction.

On or about February 8, 2002, you requested that the nurse assisting you with the care of Patient 1 obtain medication for Patient 1. Hearing that you ordered Anectine (succinylcholine), the nurse returned to Patient 1's room with Anectine, and asked you if that was the medication you wanted. The nurse handed you the container of medication, and you administered the medication to the patient. Patient 1 died a short time thereafter of respiratory arrest due to the administration of succinylcholine.

In deposition, you testified that when the nurse returned to Patient 1's room with the medication, you heard the nurse say something, but you did not hear what she said. You further testified that you assumed the medication handed to you was what you had ordered, a benzodiazepine, although you could not recall whether you had ordered Ativan or Versed.

The notice advised Dr. Gelesh of his right to request a hearing on the matters addressed in the notice.

{¶ 4} On December 7, 2005, Dr. Gelesh filed a joint complaint for declaratory and injunctive relief and petition for writ of mandamus in the Franklin County Court of Common Pleas. Dr. Gelesh requested a declaratory judgment that he is entitled to statutory immunity from disciplinary action by the board, injunctive relief enjoining the board from pursuing discipline against him, and a writ of mandamus compelling the board to comply with R.C. 2133.11, which provides immunity from professional disciplinary action to physicians carrying out in good faith the responsibility to provide comfort care within the scope of their authority. On December 21, 2005, the board filed a motion to dismiss Dr. Gelesh's complaint and petition pursuant to Civ.R. 12(B)(6).

{¶ 5} On September 26, 2006, the trial court issued a final judgment entry granting the board's motion to dismiss. Noting that courts should exercise caution in granting injunctions, especially against other departments of government, the trial court found injunctive relief inappropriate. The court then addressed the parties' primary legal argument, regarding the board's authority to proceed with a disciplinary adjudication in light of R.C. 2133.11. The court noted the General Assembly's failure to specify any procedural mechanism to determine the applicability of R.C. 2133.11 immunity and the inherently fact-specific nature of any such determination. The court concluded that "[b]ecause the Medical Board otherwise has plenary jurisdiction and, ordinarily, conducts all evidentiary hearings addressed to the professional conduct of those within its licensing authority, the most logical reading of R.C. [2133.11] is that the Medical Board should in the first instance make all factual findings relative to conduct by Dr. Gelesh, including whether `immunity' is available to him." Therefore, the trial court dismissed Dr. Gelesh's claim for declaratory relief. Lastly, because it found that Dr. Gelesh had an adequate remedy through administrative proceedings under R.C. Chapter 119, the trial court denied Dr. Gelesh's request for a writ of mandamus.

{¶ 6} Dr. Gelesh filed a timely notice of appeal and now asserts the following assignment of error:

The trial court erred as a matter of law in dismissing the declaratory judgment action where the moving party was not entitled to dismissal as a matter of law because the trial court abrogated its jurisdiction over declaratory actions by deferring to the board.

By its express language, Dr. Gelesh's assignment of error pertains solely to his claim for declaratory relief and not to his claims for injunctive relief or a writ of mandamus. Under his assignment of error, Dr. Gelesh argues that he was entitled to a determination by the trial court of his entitlement to immunity under R.C. 2133.11 before the board could proceed against him in any disciplinary proceeding.

{¶ 7} A declaratory-judgment action is a civil action that provides a remedy in addition to other legal and equitable remedies available. Aust v. Ohio State Dental Bd. (2000), 136 Ohio App.3d 677, 681, 737 N.E.2d 605. The three essential elements for declaratory relief are that (1) a real controversy exists between the parties, (2) the controversy is justiciable in character, and (3) speedy relief is necessary to preserve the rights of the parties. Burger Brewing Co. v. Liquor Control Comm. (1973), 34 Ohio St.2d 93, 97, 63 O.O.2d 149, 296 N.E.2d 261, citing Am. Life & Acc. Ins. Co. v. Jones (1949), 152 Ohio St. 287, 296, 40 O.O. 326, 89 N.E.2d 301. A court may dismiss a declaratory-judgment action, pursuant to Civ.R. 12(B)(6), only when (1) no real controversy or justiciable issue exists between the parties or (2) the declaratory judgment will not terminate the uncertainty or controversy. AEI Group, Inc. v. Ohio Dept. of Commerce (1990), 67 Ohio App.3d 546, 550, 587 N.E.2d 889, citing Fioresi v. State Farm Mut. Auto. Ins. Co. (1985), 26 Ohio App.3d 203, 203-204, 26 OBR 424, 499 N.E.2d 5.

{¶ 8} Although the parties disagree as to the standard applicable to our review of the trial court's dismissal of Dr. Gelesh's declaratory-judgment action, the Ohio Supreme Court recently clarified the standard of review applicable on appeal from a trial court's dismissal of an action for declaratory judgment. Whereas an appellate court normally reviews dismissals pursuant to Civ.R. 12(B)(6) under a de novo standard, see Fugett v. Ghee, Franklin App. No. 02AP-618, 2003-Ohio-1510, 2003 WL 1563816, at ¶ 11, the Supreme Court held that "[d]ismissal of a declaratory judgment action is reviewed under an abuse-of-discretion standard." Mid-Am. Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, paragraph two of the syllabus; Bilyeu v. Motorists Mut. Ins. Co. (1973), 36 Ohio St.2d 35, 37, 65 O.O.2d 179, 303 N.E.2d 871, followed. In Heasley, the trial court granted a Civ.R. 12(B)(6) motion to dismiss the plaintiff insurance company's action for a declaration that it owed no uninsured/underinsured-motorist coverage to Heasley, finding that no actual, justiciable controversy existed between the parties. This court affirmed. Noting a conflict between appellate districts regarding the appropriate standard of appellate review from a trial court's dismissal of a declaratory-judgment action, the Supreme Court rejected the insurance company's argument for de novo review and "reaffirm[ed] that declaratory judgment actions are to be reviewed under an abuse-of-discretion standard." Id. at ¶ 14. See, also, Arbor Health Care Co. v. Jackson (1987), 39 Ohio App.3d 183, 530 N.E.2d 928. Accordingly, we review the trial court's dismissal of Dr. Gelesh's claim for declaratory relief for an abuse of discretion. "Abuse of discretion" connotes more than an error of law or judgment; it implies that the court's action was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140.

{¶ 9} The primary issues before this court stem from the interplay between R.C. 4731.22, which authorizes the board to discipline those within its licensing authority, and R.C. 2133.11, which establishes the immunity to which Dr. Gelesh claims entitlement here. Thus, we begin our analysis with the language of those statutes, remaining mindful that when the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to apply the rules of statutory interpretation. State ex rel. Jones v. Conrad (2001), 92 Ohio St.3d 389, 392, 750 N.E.2d 583. "`In such a case, we do not resort to rules of interpretation in an attempt to discern what the General Assembly could have conclusively meant or intended * * * we rely only on what the...