Mansour v. State Med. Bd. of Ohio – May 2015 (Summary)

PHYSICIAN LICENSURE

Mansour v. State Med. Bd. of Ohio, No. 14AP-829 (Ohio Ct. App. May 5, 2015)

The Court of Appeals of Ohio reversed a state medical board’s suspension of a physician, holding that the board’s decision was not supported by reliable, probative, and substantial evidence. The plaintiff physician was charged with 66 counts of drug trafficking. He claimed that his twin brother stole and used his prescription pad. The physician complied with both the state criminal authorities and with the state medical board as they investigated the matter. Two months later, the physician submitted his licensure renewal application, to which he answered “no” to “whether at any time since signing his last application for renewal, “[h]as any board, bureau, department, agency, or any other body, including those in Ohio other than this board, filed any charges, allegations or complaints against you?” Three years later, the physician voluntarily sought evaluation for his alcohol use. The evaluation was sent to the state medical board and stated that the physician undergo a minimum 28-day stay at a board-approved residential treatment facility due to his diagnosis of alcohol abuse, pathological gambling, and depression. The board then summarily suspended the physician’s licenses.

The physician admitted himself to the board-approved residential treatment facility to undergo treatment. The treatment center found no data to indicate a diagnosis of alcohol abuse or dependency and no evidence of pathological gambling. It did find that the physician suffered from depression. Upon his release, the physician requested a hearing to reinstate his medical license. The physician submitted his records from the treatment facility, a letter stating that he did not intend to deceive the board by answering no on the application because he was not aware that an indictment would be considered a “charge, allegation, or complaint against him.” Furthermore, he stated that the state medical board was already aware of the indictment because it investigated it and he fully cooperated. Lastly, the physician requested the medical board to turn over his answers to its investigation in order to show that he never intended to deceive it. The board stated that the physician’s own investigation answers were privileged so he was unable to subpoena them.

During his hearing, the examiner found that the physician was not impaired due to substance abuse and that he was not unable to practice medicine by reason of mental illness. However, the examiner concluded that the physician violated the licensing statute by making false or misleading statements in his license renewal application and recommended that the physician be suspended for a year. The board agreed with the recommendation, but doubled the suspension due to its concerns about his depression. The physician appealed the medical board’s decision arguing that the board failed to prove that his misrepresentation was intended to deceive the board and that the board failed to base its conclusions on reliable evidence.

The court was “troubled” by the board’s decision and reversed it. The court explained that to violate the licensure statute, an applicant not only has to make a false statement, but has to make it with the intent to deceive. Here, the board failed to provide any evidence to show such intent. Not only was it reasonable that the physician misunderstood the question, but he also tried to show that he did not try to deceive the medical board by obtaining the records of the board’s investigation of him. The court scolded the medical board for refusing to allow the physician to obtain these documents on the basis of a privilege. An evidentiary privilege protects the privilege holder, here the physician, thus he is entitled to waive it in order to defend himself.

Next, the court pointed out that the examiner and the board did not find that the physician was unable to practice medicine due to a mental illness, yet the board suspended him because of concerns about his depression. The court held that the board’s decision was not based on reliable, probative, and substantial evidence.