Summary
In Brost v. Ohio State Med. Bd. (1991), 62 Ohio St.3d 218, 221, 581 N.E.2d 515, 518, the Ohio Supreme Court found that "the General Assembly intended that the sanction selected by the board be proportionate to the prohibited act or acts committed by the doctor."
Summary of this case from Guanzon v. State Med. Bd. of OhioOpinion
No. 90-1635
Submitted September 24, 1991 —
Decided December 18, 1991.
APPEAL from the Court of Appeals for Franklin County, No. 89AP-1488.
On October 14, 1987, the State Medical Board of Ohio ("board"), appellee, sent Dr. Bruce Brost, appellant, a letter notifying him that the board was considering whether to take disciplinary action against Brost with respect to Brost's treatment of "patient 1," Brost's wife. Specifically, the board alleged that Brost prescribed 3,350 dosage units of various controlled substances for his wife over a three-year period in violation of R.C. 4731.22(B)(2), (3) and (6), and Ohio Adm. Code 4731-11-02(D). Respectively, these provisions prohibit a doctor from failing "to use reasonable care discrimination in the administration of drugs" or failing to employ "acceptable scientific methods in selection of drugs"; "[s]elling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes"; departing from or failing "to conform to, minimal standards of care of practitioners under the same or similar circumstances, whether or not actual injury to a patient is established"; and failing to keep and maintain adequate records with respect to prescribed controlled substances.
The board also alleged that Brost violated former R.C. 4731.22(B)(16), renumbered (20) in 1987 ("[v]iolating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provisions of this chapter or any rule promulgated by the board"), and that pursuant to Ohio Adm. Code 4731-11-02(F), Brost violated R.C. 4731.22(B)(2) and (6).
On July 15, 1988, a hearing was held before a board examiner and evidence was adduced concerning the board's allegations.
Brost met his wife in 1983 and, in 1984, prior to their marriage, Brost's wife suffered a seizure. As a result of this seizure and additional seizures, Brost realized that his wife had a "chemical dependency problem." Brost prescribed Valium for the seizures. Brost's wife testified that she had been addicted to alcohol, heroin and barbiturates before meeting Brost.
Brost admittedly prescribed various controlled substances including Valium, Seconal, Percodan and Preludin, while knowing of his wife's dependency problem. Brost testified that he prescribed these substances for his wife for purposes of preventing seizures; treating headaches, nervousness, insomnia, and dental-related problems; keeping his wife in a "functioning" state; and assuring that she would not overdose on medications which she might obtain from other sources. Brost also maintained that his wife would oftentimes exhibit manipulative behavior to obtain a dosage of scheduled substances and that he would prescribe the substances sometimes under duress.
From 1984 through 1987, Brost's wife participated in six detoxification programs on either an in-patient or out-patient basis. Brost and his wife testified that Brost was often the impetus behind her participation in the programs. At the time of the hearing, Brost's wife was being counselled by a psychologist and Brost continued to prescribe Valium and occasionally Tylenol # 3 for her. Both Brost and his wife felt her condition was improving.
Four doctors also testified on Brost's behalf. These doctors stated they had observed Brost and the care he provided for his patients was very good or excellent.
The hearing examiner took exception to much of Brost's testimony. The examiner concluded, for the most part, that Brost's actions were inappropriate under the circumstances or inconsistent with Brost's stated objective of freeing his wife from the control of the chemicals. The hearing examiner concluded that Brost violated the provisions alleged in the board's letter and that pursuant to disciplinary guidelines adopted by the board, Brost's actions warranted permanent revocation.
The case went before the board. Six members of the board voted in favor of adopting the hearing examiner's findings of fact, conclusions and recommendation, two members disagreed, and two abstained from voting.
Pursuant to R.C. 119.12, Brost appealed to the Court of Common Pleas of Franklin County. The court found reliable, probative and substantial evidence to support the board's finding of unprofessional conduct. However, the court failed to find that the board's order revoking Brost's license was, likewise, supported by the record. In concluding that the "disciplinary guideline is no substitute for the evidence," the court reversed the board's order, and remanded the cause with instructions that "further evidence be presented to the Board and a finding made concerning whether * * * [Brost] is truly a danger to the public or whether the unprofessional acts with which he is charged are peculiar to the unusual situation that he has faced with his wife."
The board appealed. The court of appeals considered the following as an assignment of error: "The lower court abused its discretion in remanding the board's order for a more appropriate penalty." Though expressing concern that the sanction ordered by the board may not have been commensurate with Brost's acts, the court of appeals sustained the assigned error. The court found there was sufficient evidence that violations of R.C. 4731.22(B) occurred and, therefore, Henry's Cafe, Inc. v. Bd. of Liquor Control (1959), 170 Ohio St. 233, 10 O.O.2d 177, 163 N.E.2d 678, controlled and prohibited the common pleas court from reversing the sanction imposed by the board.
This cause is before this court pursuant to the allowance of a motion to certify the record.
Tyack Blackmore Co., L.P.A., Thomas M. Tyack and Angela F. Albert, for appellant.
Lee I. Fisher, Attorney General, and John C. Dowling, for appellee.
Bricker Eckler, Martha Post Baxter and Catherine M. Ballard, urging reversal for amicus curiae, Stouder Memorial Hospital.
In her report to the board, the hearing examiner stated, in part, that:
"Dr. Brost's acts include knowingly furnishing drugs to an addict, prescribing without medical indication to the detriment of a patient, and misadministration of controlled substances. For such acts, the Board's disciplinary guidelines indicate revocation as the minimum sanction. * * *" (Emphasis added.)
By the requisite vote of six members, the board adopted, without qualification, the hearing examiner's report.
The disciplinary guidelines referred to by the examiner have been adopted by the board. The guidelines provide numerous categories of prohibited acts with corresponding maximum and minimum penalties. The board, however, had not taken steps to adopt its disciplinary guidelines as properly promulgated rules. See R.C. Chapter 119.
Brost argues that because the disciplinary guidelines have not been properly promulgated, any reliance on the guidelines by the board to the extent the board felt compelled to follow the examiner's recommendation and impose, at a minimum, permanent revocation, thereby precluding consideration of alternative sanctions provided in R.C. 4731.22(B), is contrary to law.
In addressing this issue, the court of appeals determined that the board did not apply its guidelines as binding authority. The court reached this conclusion by finding, in part, that the hearing examiner considered, but rejected, mitigating factors and the board, prior to adopting the examiner's report, discussed the sanction.
The court of appeals also found that the guidelines "apparently do not appear to have `a general and uniform operation.' R.C. 119.01(C)." We need not address whether the guidelines are "rules" within R.C. 119.01(C). Our concern lies with whether the board thought the guidelines were binding authority, and not whether the guidelines fall within R.C. 119.01(C).
We disagree with the court of appeals' conclusion. The fact that Brost did put forth mitigating testimony and certain board members (three of the eight who voted) did, indeed, discuss the appropriateness of the sanction, is not persuasive. Pursuant to the disciplinary guidelines, the hearing examiner recommended revocation "as the minimum sanction" for Brost's actions. The board adopted the examiner's entire report and without qualification. Under the circumstances, we are unable to conclude with any degree of certainty whether the board did or did not feel compelled to apply the guidelines as binding authority.
If, in fact, the board felt constrained to abide by the disciplinary guidelines without consideration of lesser sanctions provided in R.C. 4731.22(B), then the board's actions were, consequently, not in accordance with law. R.C. 4731.22(B) provides that the board, "pursuant to an adjudicatory hearing under Chapter 119. of the Revised Code and by a vote of not less than six members, shall, to the extent permitted by law, limit, revoke, or suspend a certificate * * * or reprimand or place on probation the holder of a certificate * * *."
As noted, the General Assembly has granted the board a broad spectrum of sanctions from which to choose. Naturally, the General Assembly intended that the sanction selected by the board be proportionate to the prohibited act or acts committed by the doctor. Permanent revocation, of course, is the most serious penalty that the board can impose.
Accordingly, we reverse the judgment of the court of appeals, vacate the board's order and remand the cause to the board with instructions that the board may, but is not required, to impose the "minimum penalty" of revocation as set forth in its disciplinary guidelines. Rather, the board has the authority to also consider those sanctions provided in R.C. 4731.22(B) when assessing Brost's sanction.
Judgment reversed and cause remanded.
SWEENEY, H. BROWN and RESNICK, JJ., concur.
MOYER, C.J., HOLMES and WRIGHT, JJ., dissent.
I respectfully dissent. In my view the majority opinion is at best an exercise in futility as to the ultimate result in this matter. I think it obvious that the so-called guidelines referred to in the majority opinion did not tie the board's hands — the board's vote was six to two in favor of revocation with two abstentions.
I have a measure of empathy with appellant and could well have joined a minority on the board who preferred a lesser sanction. However, what is unacceptable here is the substitution of our judgment for that of a board of appellant's peers. The board's decision was premised upon a doctor unquestionably "furnishing drugs to an addict, prescribing without medical indication to the detriment of a patient, and misadministration of controlled substances." We have sent a flawed and improper message to the public and the medical profession. I simply cannot endorse same.
HOLMES, J., concurs in the foregoing dissenting opinion.