IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Abel P. Borromeo M.D.,
:
Appellant,
:
Nos. 99AP-1219
v.
:
and
99AP-1231
The State Medical Board of Ohio,
:
(REGULAR CALENDAR)
Appellee.
:
O P I N I O N
Rendered on June 1, 2000
Abel P. Borromeo, M.D., pro se .
Betty D. Montgomery, Attorney General, and Rebecca J.
Albers, for appellee.
APPEAL from the Franklin County Court of Common Ple as.
BROWN, J.
Abel P. Borromeo, M.D., appellant, appeals the Oct ober 5, 1999 judgment
of the Franklin County Court of Common Pleas affirm ing the order of the State Medical
Board of Ohio, appellee, refusing to reinstate appe llant's medical license.
Appellant was licensed to practice medicine and pe rform surgery in Ohio in
1974. Appellant was also licensed to practice medi cine in West Virginia. In 1990,
appellant was found guilty by a United States Distr ict Court in Charleston, West Virginia,
of fifty-two felony counts of distribution and aidi ng and abetting distribution, in violation of
Nos. 99AP-1219 and 99AP-1231
11
Section 841(a)(1), Title 21, U.S.Code and Section 2 , Title 18, U.S.Code and one felony
count of violating the Racketeer Influence and Corr upt Organizations Act, Section
1962(C), Title 18, U.S.Code. The counts arose out
of appellant writing prescriptions for
controlled substances for five of his patients. Ap pellant was sentenced to prison for
seventy-eight months and served sixty-six months be fore being released for good
behavior.
On November 14, 1990, the West Virginia
Board of Medicine revoked
appellant's West Virginia medical license based upo n his convictions. On December 5,
1990, the State Medical Board of Ohio ("Board") rev oked appellant's license to practice
medicine and perform surgery in Ohio based upon R.C . 4731.22(B)(3) and 4731.22(B)(9).
In April 1997, appellant requested that the Board
reinstate his certificate to
practice medicine and perform surgery in Ohio. On
October 8, 1997, the Board issued a
notice of opportunity for hearing. A hearing was h eld before an administrative hearing
officer on January 6, 1998. On February 5, 1998, t he hearing officer recommended that
appellant's application be denied pursuant to R.C. 4731.22(B)(9). On March 11, 1998,
the Board adopted the recommendation of the hearing
officer to deny appellant's
application.
On March 27, 1998, appellant appealed the Board's
decision to the Franklin
County Court of Common Pleas. On October 5, 1999,
the trial court found that the
Board's order was supported by reliable, probative, and substantial evidence and affirmed
the order of the Board. Both appellant and his cou nsel filed notices of appeal, and the
appeals were consolidated. Appellant asserts the f ollowing three assignments of error:
Nos. 99AP-1219 and 99AP-1231
11
I. THE COURT OF COMMON PLEAS FAILED ITS SACRED
RESPONSIBILITY TO PROVIDE A MEANINGFUL JUDICIAL
REVIEW BY UPHOLDING THE DECISION OF THE
MEDICAL
BOARD
DESPITE
THE
VIOLATION
OF
APPLICANT'S
RIGHT[S]
UNDER
THE
FIFTH
AND
FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION AND ARTICLE 1. ( sic) SECTION 16 OF
THE OHIO CONSTITUTION[.]
II. THE COURT OF COMMON PLEAS ERRED IN
SUPPORTING THE DECISION OF THE MEDICAL BOARD
WHICH EX POST FACTO RULED THE PERMANENT
REVOCATION
DESPITE
MITIGATING
FACTORS
PRESENTED
AT
THE
HEARING
AND
WITHOUT
EVIDENCE THAT APPELLANT CONTINUE ( sic) TO BE A
DANGER TO PUBLIC HEALTH AND SAFETY.
III. THE COURT OF COMMON PLEAS ERRED IN GIVING
THE STATE MEDICAL BOARD THE BLANKET AUTHORITY
TO GRANT OR DENY MEDICAL LICENSE ( sic) IN ANY
CIRCUMSTANCES.
THE COURT PURSUANT TO R.C.
119.12 IN RELATION TO R.C. 4731.22(B) SHOULD
DETERMINE IF THERE IS EVIDENCE SUPPORTING THE
BOARD'S
DECISION
TO
REFUSE
TO
REINSTATE
APPELLANT'S MEDICAL LICENSE AS OPPOSED TO
LIMITING, REPRIMANDING OR PLACING ON PROBATION
AND SUBJECT TO TERM OF PROBATION.
Appellant sets forth numerous arguments under his first assignment of error
that relate to one or more of the stated assignment s of error. In addition, the argument
section of appellant's brief contains only two assi gnments of error, and the two
assignments of error in his brief do not coincide w ith any of the three stated assignments
of error above. Therefore, we will address the arg uments presented without regard to the
numerical designation given the assignments of erro r.
Nos. 99AP-1219 and 99AP-1231
11
In an appeal from a State Medical Board's order, a
reviewing trial court is
bound to uphold the order if it is supported by rel iable, probative, and substantial
evidence, and is in accordance with law.
Pons v. Ohio State Med. Bd. (1993), 66 Ohio
St.3d 619, 621; R.C. 119.12. Reliable, probative,
and substantial evidence has been
defined as follows:
(1) 'Reliable' evidence is dependable; that is, it
can be
confidently trusted. In order to be reliable, there
must be a
reasonable probability that the evidence is true. ( 2) 'Probative'
evidence is evidence that tends to prove the issue
in question;
it must be relevant in determining the issue. (3) ' Substantial'
evidence is evidence with some weight; it must have
importance and value. Our Place, Inc. v. Ohio Liquor Control
Comm. (1992), 63 Ohio St.3d 570, 571.
However, an appellate court's review is even more
limited than that of the
trial court. Pons, at 621 . While it is incumbent on the trial court to examin e the evidence,
the appellate court is to determine only if the tri al court abused its discretion, i.e., being
not merely an error of judgment, but perversity of
will, passion, prejudice, partiality, or
moral delinquency. Id. Absent an abuse of discretion on the part of the tr ial court, a court
of appeals may not substitute its judgment for thos e of the medical board or a trial court.
Id. Instead, the appellate court must affirm the trial court's judgment. Id.
In Pons, the Ohio Supreme Court held:
Moreover, when reviewing a medical board's order, c ourts
must accord due deference to the board's interpreta tion of the
technical and ethical requirements of its professio n. The
policy reason for this was noted in Arlen v. State (1980), 61
Ohio St. 2d 168, 173 *** 399 N.E.2d 1251, 1254-1255 : "' ***
The purpose of the General Assembly in providing fo r
administrative hearings in particular fields was to
facilitate
Nos. 99AP-1219 and 99AP-1231
11
such matters by placing the decision on facts with
boards or
commissions composed of [people] equipped with the
necessary knowledge and experience pertaining to a
particular field. ***'"
[Quoting Farrand v. State Med. Bd .
(1949), 151 Ohio St. 222, 224, 39 O.O. 41, 42, 85 N .E.2d
113, 114.] Id., at 621-622.
Therefore, absent an abuse of discretion of the tri al court, this court must affirm the trial
court's judgment.
Several of appellant's arguments assert that both the Board and trial court's
actions denied him due process. To be consistent wi th the Due Process Clause,
deprivation of a right, including revocation of a p rofessional license, must be preceded by
notice and a hearing. In the Matter of Mattie L. Vaughn, M.D. (Nov. 30, 1995), Franklin
App. No. 95APE05-645, unreported. Determining the t ype of hearing that minimally
comports with due process requires a balancing of t he governmental and individual
interests at state.
Korn v. Ohio State Medical Bd. (1988), 61 Ohio App.3d 677, 684.
Ohio's Due Course Clause in Section 16, Article I o f the Ohio Constitution is equivalent to
the Due Process Clause of the Fourteenth Amendment.
Sorrell v. Thevenir (1994), 69
Ohio St.3d 415, 422. Appellant does not contest i n any manner that he was not given
notice or hearing, and we find that the Board's act ion, in this respect, comported with the
requirements of due process.
Appellant's first argument seems to stem from his
assertion that the
outcome of the Board hearing was a "preconceived de termination of a guilty verdict
based solely upon the ground of the license revocation in 1990,
which was not contested
by the Appellant." (Emphasis sic.) However, R.C. 4731.22(B)(9) clearly permits the
Nos. 99AP-1219 and 99AP-1231
11
Board to refuse to grant an application for reinsta tement based solely on a plea of guilty
or a judicial finding of guilt of a felony. Furthe r, the Board can rely on the same conviction
to deny restoration of a license that served as the
original grounds for the revocation of
that license. See Bouquett v. State Med. Bd. (1997), 123 Ohio App.3d 466; see, also,
DeBlanco v. Ohio State Medical Bd.
(1992), 78 Ohio App.3d 194. Therefore, this
argument is without merit.
Appellant next argues that the Board did not consi der certain mitigating
factors before denying his application. However, t he minutes from the Board's March 11,
1998 meeting reveal that the Board acknowledged tha t it had received, read, and
considered the report and recommendation of the hea ring examiner, the hearing record,
and appellant's objections to the examiner's report . These items contained the evidence
and testimony regarding the mitigating factors put forth by appellant. Each member of the
Board also stated that they understood that the dis ciplinary guidelines did not limit the
sanction to be imposed and that the range of availa ble sanctions in each matter ran from
dismissal to permanent revocation. Thus, the Board clearly had the mitigation evidence
before it for consideration when determining whethe r to deny appellant's application for
reinstatement but found such evidence unpersuasive.
Although appellant's efforts to
rehabilitate and seek education and counseling are commendable, they do not guarantee
reinstatement. We find this argument also without merit.
Appellant next argues that his criminal conviction , in addition to the Board's
subsequent decision to deny his application to rein state, violated his constitutional rights
Nos. 99AP-1219 and 99AP-1231
11
against excessive and multiple punishments. However , in In the Matter of Mattie L.
Vaughn, M.D., supra, we found that the Eighth Amendment generally appl ies only to
criminal prosecutions and punishments. Id.; see, also, Browning-Ferris Industries of
Vermont, Inc. v. Kelco Disposal, Inc. (1989), 492 U.S. 257, 109 S.Ct. 2909; Ingraham v.
Wright (1977), 430 U.S. 651, 664-668, 97 S.Ct. 1401, 1408 -1411; State ex rel. Matz v.
Brown (1988), 37 Ohio St.3d 279, 280; In re Complaint of Sarver (1990), 70 Ohio App.3d
471, 479. Therefore, we find that the Board's revoc ation of appellant's certificate is not
subject to review under the Eighth Amendment. We f urther found in Vaughn that, as a
general rule, a sentence that falls within the term s of a valid statute cannot amount to
cruel and unusual punishment. Vaughn, supra, citing McDougle v. Maxwell (1964), 1 Ohio
St.2d 68, 69. Clearly, the sentence in the present
case fell within the terms of R.C.
4731.22(B)(9). Therefore, even assuming that revoca tion of appellant's certificate was
reviewable under the Eighth Amendment, the revocati on would not be unconstitutional.
Therefore, this argument is without merit.
Appellant next argues that the revocation of his l icense violates the Double
Jeopardy Clause of the United State Constitution be cause his license was revoked in
addition to serving his prison sentence. The Double Jeopardy Clause of the United States
Constitution protects against three types of violat ions: (1) prosecuting a defendant again
for the same conduct after an acquittal; (2) prosec uting a defendant for the same crime
after conviction; and (3) subjecting a defendant to multiple criminal punishments for the
same conduct. State v. Gustafson (1996), 76 Ohio St.3d 425, 432. Appellant argues t hat
Nos. 99AP-1219 and 99AP-1231
11
the Board violated the third factor by revoking his license while he served in prison for the
same conduct.
However, the Double Jeopardy Clause protects only against the imposition
of multiple criminal punishments for the same condu ct. Hudson v. United States (1997),
522 U.S. 93, 118 S.Ct. 488, citing Helvering v. Mitchell (1938), 303 U.S. 391, 399, 58
S.Ct. 630, 633. Clearly, the General Assembly inten ded the penalties imposed by the
Board to be civil in nature. The Supreme Court of O hio has held that the powers that the
General Assembly has bestowed upon the Board are ad ministrative in character and not
judicial. France v. State (1897), 57 Ohio St. 1, paragraph one of the syllab us; Hyde v.
State Medical Bd. (1986), 33 Ohio App.3d 309. Quintessential crimina l punishments may
be imposed only "by a judicial trial." Wong Wing v. United States (1896), 163 U.S. 228,
235, 16 S.Ct. 977, 980. Further, it is well establ ished that the Medical Practices Act (R.C.
Chapter 4731) is a valid exercise of the state's po lice power to regulate the public health
and welfare and is constitutional. Williams v. Scudder (1921), 102 Ohio St. 305; Nesmith
v. State (1920), 101 Ohio St. 158. The General Assembly has
given the Board the duty to
safeguard the public's interest in having competent , properly trained and educated,
experienced doctors. State ex rel. Copeland v. State Med. Bd. (1923), 107 Ohio St. 20.
Therefore, the purpose of the revocation and subseq uent denial of the application for
reinstatement was not punishment or criminal in nat ure, but rather for the protection of the
public health and welfare of the citizens of Ohio.
Appellant's argument is without merit.
Nos. 99AP-1219 and 99AP-1231
11
Appellant next asserts that the December 5, 1990 o rder and entry was not
designated as a permanent revocation of his medical license and the Board's denial of his
application to reinstate in effect permanently revo kes his license in violation of the ex post
facto prohibition contained in Section 10, Article I of the United States Constitution. This
argument is without merit. In Beazell v. Ohio (1925), 269 U.S. 167, 46 S.Ct. 68, the
United States Supreme Court stated that "any statut e which punishes as a crime an act
previously committed, which was innocent when done, which makes more burdensome
the punishment for a crime, after its commission ** * is prohibited as ex post facto." Id. at
169-170. Even if, assuming arguendo, the Board's initial determination to revoke
appellant's license could be termed "punishment," i t cannot be said that the subsequent
denial of appellant's application to reinstate made
the initial punishment any more
burdensome. The original action by the Board was a
revocation. The subsequent denial
of appellant's application to reinstate did not exa ct a further punishment but only
continued the initial revocation. Appellant's logic would require the Board to grant every
application to reinstate a revocation, which was no t delineated as permanent, without
regard to the circumstances and without discretion.
Clearly, this is an illogical result.
Therefore, we find this argument without merit.
Appellant also asserts that the trial court abused
its discretion by
"reinforcing the excesses committed by the medical
board."
Under this argument,
appellant reasserts several contentions that we hav e already addressed above. In
addition, appellant seems to think the trial court improperly gave blanket deference to the
Nos. 99AP-1219 and 99AP-1231
11
Board regarding the sanction imposed in finding:
Under time honored Ohio case law, Henry's Café vs.
Board of
Liquor Control (1958), (sic) 170 Ohio St. 233, a reviewing
court has no authority to alter a penalty imposed b y an
administrative agency if the underlying decision pa sses the
substantial evidence test.
Regardless of whether o ther
doctors convicted of felonies receive a different c onsideration
from the Board, the Board here has exercised its pr ofessional
judgment on the issue of the severity and duration
of
punishment in Appellant's case. Under Henry's , supra, this
Court has no authority to change that judgment.
Under R.C. 4731.22(B), the Board is authorized to
"limit, revoke, or
suspend a certificate, refuse to register or refuse to reinstate an applicant, or reprimand or
place on probation the holder of a certificate for" violations under R.C. 4731.22(B)(9). It
has been consistently held that once the common ple as court finds that the existence of a
violation is supported by reliable, probative, and substantial evidence, it cannot modify a
penalty authorized by R.C. 4731.22(B).
Roy v. Ohio State Med. Bd. (1992), 80 Ohio
App.3d 675, 683; DeBlanco, supra, at 202 citing Henry's Cafe, Inc. v. Bd. of Liquor
Control (1959), 170 Ohio St. 233 ; Sicking v. Ohio State Medical Bd. (1991), 62 Ohio
App.3d 387, 395. Further, the Board does not have
to consider its guidelines but,
instead, must consider the range of sanctions set f orth in R.C. 4731.22(B). See Garwood
v. Ohio State Medical Bd. (May 5, 1998), Franklin App. No. 97APE10-1325, unr eported,
citing Brost v. Ohio State Medical Bd. (1991), 62 Ohio St.3d 218, 221, and Roy, supra, at
682-683.
In the present case, the trial court correctly det ermined that the Board's
finding, that appellant violated provisions of R.C. 4731.22(B), was supported by reliable,
Nos. 99AP-1219 and 99AP-1231
11
probative, and substantial evidence, and the Board imposed a penalty authorized by law.
As a result, the trial court did not abuse its disc retion in refusing to reconsider the Board's
decision to not reinstate appellant's license. The refore, we find this argument without
merit.
Accordingly, we find that the trial court did not
abuse its discretion in
concluding that there was reliable, probative, and
substantial evidence that appellant
violated the statute and rules cited by the Board.
Appellant's three assignments of error
are overruled, and the judgment of the Franklin Cou nty Court of Common Pleas is
affirmed.
Judgment affirmed.
BRYANT and GREY, JJ., concur.
GREY, J., retired, of the Fourth Appellate District , assigned to
active duty under authority of Section 6(C), Articl e IV, Ohio
Constitution.
_____________________
Comment: