IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO

GENERAL DIVISION

ERNEST B. DE BOURBON, MD, :

:

APPELLANT, : CASE NO. 16CVF-08-7190

:

vs. : JUDGE DAVID YOUNG

:

OHIO STATE MEDICAL BOARD , :

:

APPELLEE. :

DECISION AND ENTRY

DENYING APPELLANT’S MOTION TO SUSPEND THE ORDER OF THE STATE

MEDICAL BOARD OF OHIO PENDING APPEAL

AS FILED ON AUGUST 8, 2016

YOUNG, J.

This matter is before this Court pursuant to the appeal filed by Ernest B. De Bourbon, M.D.

(Appellant) from a July 13, 20161 Entry of Order (Order) of the State Medical Board of Ohio

(“Board”). The Board’s Order imposed a minimum 1 year suspension of the Appellant’s Ohio

medical license. The Order also imposed permanent limitations on the Appellant’s license barring

the Appellant from performing liposuction procedures. The Board’s sanction is scheduled to

commence on August 27, 2016.

On August 8, 2016 the Appellant filed a Motion To Stay. The Board filed its Memo Contra

on August 19, 2016. The Appellant contacted the Court and indicated that it would not be filing a

Reply. For the reasons that follow the Court DENIES the Motion.

ANALYSIS

This Court has reviewed the applicable statutory and case law. Please note the following:

The filing of an administrative appeal does not automatically entitle a party to a

stay of execution pending judicial review. Rather, the General Assembly has

given trial courts broad discretion when making such determinations, legislating

that: "[i]f it appears to the court than an unusual hardship to the appellant will

1 Mailed on July 27, 2016.

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Case No: 16CVF-08-7190

result from the execution of the agency's order pending determination of the

appeal, the court may grant a suspension and fix its terms." R.C. 119.12. As such,

when reviewing whether a trial court properly granted or denied a motion to stay

an administrative order, the standard of review employed is an abuse of

discretion. Carter Steel & Fabricating Co. v. Danis Bldg. Construction Co. (1998),

126 Ohio App.3d 251, 254, 710 N.E.2d 299, 300-301. Bob Krihwan Pontiac-

GMC Truck, Inc. v. Gen. Motors Corp. (2001), 141 Ohio App.3d 777 at 783.

The courts of Ohio have set out the following test to help determine if a requested stay is

warranted:

When asked to stay an administrative order, courts give significant weight to the

expertise of the administrative agency, as well as to the public interest served by

the proper operation of the regulatory scheme. See Hamlin Testing Labs., Inc. v.

United States Atomic Energy Comm. (C.A. 6, 1964), 337 F.2d 221.To that end,

R.C. 119.12 allows the court to "grant a suspension" of an agency order pending

appeal if the court determines that "unusual hardship" will result to appellant.

Although R.C. 119.12 does not set forth or proscribe the factors the court may

consider in determining whether to suspend operation of an administrative order,

those factors have been refined by the courts. The Sixth Circuit, in addition to

many other courts, has repeatedly relied upon the following factors as logical

considerations when determining whether it is appropriate to stay an

administrative order pending judicial review. Those factors are: (1) whether

appellant has shown a strong or substantial likelihood or probability of success on

the merits; (2) whether appellant has shown that it will suffer irreparable injury;

(3) whether the issuance of a stay will cause harm to others; and (4) whether the

public interest would be served by granting a stay. See Hamlin, supra;

Gurtzweiler v. United States (N.D.Ohio, 1985), 601 F.Supp. 883; Holden v.

Heckler (N.D.Ohio, 1984), 584 F.Supp. 463; Upjohn Company v. Finch

(W.D.Mich., 1969), 303 F.Supp. 241; Friendship Materials v. Michigan Brick,

Inc. (C.A. 6, 1982), 679 F.2d 100; and Virginia Petroleum Jobbers Assn. v. FPC

(D.C.Cir., 1958), 259 F.2d 921. Bob Krihwan Pontiac-GMC Truck, Inc. v. Gen.

Motors Corp. (2001), 141 Ohio App.3d 777 at 782 – 783.

Utilizing the above noted law, the Court will now address the relevant factors.

(1) Whether appellant has shown a strong or substantial likelihood or probability of

success on the merits:

The Appellant argued that there were a great number of reasons why he should have

prevailed before the Board. Appellant does so while admitting to a number of the allegations

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Case No: 16CVF-08-7190

raised by the Board. The Board responded by stating that any argument contesting the sanction

does not create a substantial likely hood of success on the merits especially due to the long

standing precedent of Henry’s Café, Inc. v. Bd. of Liquor Control, (1959) 170 Ohio St. 233.

Furthermore, this Court was unable to locate in the Motion a clear indication that the evidence

utilized by the Board was so internally inconsistent that the Board could not rely on it to make its

Order.

The Appellant raised ‘turf war’ issues but the arguments were speculative at best. Other

procedural issues regarding the use of subpoenas and legal privileges did not seem - at this point

- to be issues that would clearly change the outcome; i.e., the Appellant will still be subject to the

Board’s lawful sanction.

Therefore the Court holds that the Appellant has not shown a substantial likelihood of

success on the merits.

(2) Whether appellant has shown that it will suffer irreparable injury:

Appellant’s motion attempted to address that issue. Appellant claimed that he could lose

his practice while also losing his right to be gainfully employed. Appellant also asserted that his

right to practice in another state could be harmed. The Board responded by stating that any harm

technically had already occurred because the Board reported its Order.

Viewed in its entirety, the arguments of the Appellant are nothing unusual. In fact, if

accepted in present form, all future appellants would be entitled to a stay.

(3) Whether the issuance of a stay will cause harm to others:

The case deals with the death of a patient. The Appellant claims that as to patient 1, the

care was over 7 years ago; there was no harm to that patient and the Appellant has changed his

record keeping and so has addressed that issue. As to patient 2, the Appellant has asserted that

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Case No: 16CVF-08-7190

the death was a known complication from the surgery while also claiming that the alleged

medical procedure might not even have been the proximate cause of patient 2’s death.

This Court need not address this issue because it has already concluded that the Appellant

did not meet the first two factors for a stay.

(4) Whether the public interest would be served by granting a stay:

Again, based upon the decision that there was no unusual hardship and that there is not a

substantial likelihood of success on the merits, the Court need not address this issue.

CONCLUSION

After a review of the relevant factors, this Court finds that the Appellant has failed to

show that the Board’s Entry of Order will result in an ‘unusual hardship’ as found in R.C.

§119.12. Courts that have considered said language have held the suffering of economic

hardship is assumed with the loss of or suspension of a license. Hence, the statute requires a

finding of ‘unusual’ hardship.

Furthermore, as noted supra, this Court does not feel that the Appellant has established a

substantial likelihood of success on the merits. Therefore, the Motion of the Appellant to stay

the Board’s sanction pending appeal is DENIED.

DECISION

Defendant’s Motion as filed on August 8, 2016 is DENIED.

Judge David Young

Copies to:

JAMES M MCGOVERN

604 EAST RICH STREET

COLUMBUS, OH 43215

Counsel for Appellant

KYLE C WILCOX

30 E BROAD ST, 26TH FL

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Case No: 16CVF-08-7190

COLUMBUS, OH 43215

Counsel for the Appellee Medical Board

Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Aug 23 9:03 AM-16CV007190

Franklin County Court of Common Pleas

Date: 08-23-2016

Case Title: ERNEST B DE BOURBON MD -VS- OHIO STATE MEDICALBOARD

Case Number: 16CV007190

Type: DECISION/ENTRY

It Is So Ordered.

/s/ Judge David C. Young

Electronically signed on 2016-Aug-23 page 6 of 6

Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Aug 23 9:03 AM-16CV007190

Court Disposition

Case Number: 16CV007190

Case Style: ERNEST B DE BOURBON MD -VS- OHIO STATEMEDICAL BOARD

Motion Tie Off Information:

1. Motion CMS Document Id: 16CV0071902016-08-0899980000 Document Title: 08-08-2016-MOTION TO STAY - PLAINTIFF:ERNEST B. DE BOURBON MD Disposition: MOTION DENIED

Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Aug 23 9:03 AM-16CV007190