State Medical Board of Ohio > Homemed.ohio.gov/portals/0/formala/35073780.pdf · On August 8, 2016...
Transcript of State Medical Board of Ohio > Homemed.ohio.gov/portals/0/formala/35073780.pdf · On August 8, 2016...
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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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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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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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
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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
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