Founder’s Women’s Health Ctr. v. Ohio State Dept. of Health
[Cite as In re Founder’s Women’s Health Ctr., 2002-Ohio-4295.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In Re: Founder’s Women’s Health Center,
Appellant-Appellant,
v.
Ohio State Department of Health,
Appellee-Appellee.
In Re: The Women’s Med Center
of Akron et al.,
Appellants-Appellants,
v.
Ohio State Department of Health,
Appellee-Appellee.
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No. 01AP-872
(REGULAR CALENDAR)
No. 01AP-873
(REGULAR CALENDAR)
D E C I S I O N
Rendered on August 15, 2002
Laufman & Gerhardstein, Alphonse A. Gerhardstein and
Jennifer L. Branch, for appellants.
Betty D. Montgomery, Attorney General, and Dennis G.
Nealon, for appellee.
APPEALS from the Franklin County Court of Common Pleas.
DESHLER, J.
Nos. 01AP-872 and 01AP-873
2
{¶1} These are appeals by appellants, Women’s Med Center of Akron,
Women’s Med Center of Cincinnati, Women’s Med Center of Dayton, and Founder’s
Women’s Health Center, from judgments of the Franklin County Court of Common
Pleas affirming determinations by the director of the Ohio Department of Health that
appellants are ambulatory surgical facilities subject to licensure requirements under
R.C. 3702.30.
{¶2}
In proceedings before an administrative hearing examiner, the parties
entered stipulations as to the primary facts of the case. Those stipulations, as well as
facts set forth by the hearing examiner in two reports and recommendations, both dated
April 5, 2000, provide the following factual background. In response to complaints
received in 1999, surveyors from the Ohio Department of Health (“ODH”) visited 22
facilities, including the facilities of the four appellants in the instant case. The director of
ODH, through correspondence dated November 10, 1999, notified all the facilities
surveyed that they were required to apply for licensure as an ambulatory surgical facility
pursuant to R.C. 3702.30. Each of the appellants in this case filed an appeal and a
request for an administrative hearing on the issue of whether its facility was an
ambulatory surgical facility under Ohio law.
{¶3} A record hearing was held on February 7, 2000, in which the parties
submitted agreed stipulations of fact. In the appeal involving appellants Women’s Med
Center of Akron, Women’s Med Center of Cincinnati and Women’s Med Center of
Dayton (collectively “appellants WMC”), the parties’ stipulations included the following
agreed facts:
“1. Women’s Medical Professional Corp., dba Women’s Med Center of
{¶4}
Dayton, is located in Dayton, Ohio. Women’s Medical Professional Corp., dba Women’s
Med Center of Cincinnati is located in Cincinnati, Ohio. Women’s Medical Professional
Nos. 01AP-872 and 01AP-873
3
Corp., dba Women’s Med Center of Akron is located in Akron[,] Ohio. Together, they shall
be referred to as “WMCs”. Women’s Medical Professional Corp. owns, op-erates and
manages the WMCs.
“2. Dr. Martin Haskell, a medical doctor licensed to practice medicine in the
{¶5}
state of Ohio since 1974, is the sole owner of the Corporation and each WMC.
{¶6}
“3. In response to a complaint that the 22 facilities, including the WMCs,
were operating as unlicensed ambulatory surgical facilities (“ASF”), Ohio Department of
Health (“ODH”) surveyors visited all 22 facilities to determine if they met the definition of
an ASF and HCF. ***
“4. ODH issued determinations that the WMCs were ASFs and required
{¶7}
licensure. The WMCs requested hearings on the determination that they are ASFs. ***
{¶8}
“***
“6. Abortions as performed at the Facility are “outpatient surgery”. Abortions
{¶9}
are routinely performed at the WMCs and the WMCs function separately from a hospital’s
inpatient surgical service and from the offices of podiatrists and dentists.
{¶10} “7. ‘Offices of private physicians’ as used in R.C. 3702.30 is not defined in
Ohio statute or rule. Neither the Ohio [State] Legislature nor ODH intended for ‘offices of
private physicians’ to be required to be licensed.
{¶11} “8. Approximately 90% of all medical care rendered at the Centers was for
the performance of abortions. The remaining 10% of all medical care rendered at the
Centers was for the performance of other womens [sic] reproductive medical care.
{¶12} “***
{¶13} “11. Attachment 4 is a copy of an internal ODH memo dated May 1, 1996,
concerning ODH’s interpretation of a health care facility. It is the position of ODH that the
primary purpose of the facility is the most significant, though not exclusive, factor in
distinguishing an ASF from a physician’s office. This internal memorandum was not rule
filed.
{¶14} “12. It is the position of the Center that the definition of a private physician’s
office is a site housing a medical practice owned by a physician licensed to practice
medicine in Ohio.”
{¶15} The parties entered into an “addendum to stipulations,” which stated in
part as follows:
{¶16} “1. Dr. Haskell operates each office and provides services to patients at
each center. The five other physicians who also provide services to patients at these
Nos. 01AP-872 and 01AP-873
4
locations are under the direction and control of Dr. Haskell. *** All billing is done by
WMPC and payable to WMPC. The physicians are not permitted to bill separately for their
services. All medical records are the personal property of Martin Haskell, M.D. Any
physician who stops providing services to these patients is not permitted to compete with
Dr. Haskell for services. Dr. Haskell retains all direct control over the physicians, staff, and
the functioning of the medical practice, including hiring, training and supervision of
physicians and support personnel, the acquisition of medical equipment, and design of
the office.
{¶17} “2. Patients are encouraged to return to the Centers for follow-up care, but
may go to another physician for that service.
{¶18} “3. For the period of September 1998-September 1999, 3546 abortions
were performed at the Dayton Center, 3363 at the Cincinnati Center, and 949 at the
Akron Center.
{¶19} “4. Beginning May 1, 1996, ODH staff claim that they referred to the
attached Memorandum dated May 1, 1996 when considering questions of HCF and ASF
exemptions.
{¶20} “5. On February 3, 2000, ODH announced at a meeting of a private group,
the Ohio Ambulatory Surgery Centers Association, that the factors to be considered when
deciding if there is a private physician office exclusion are to be taken together. No one
factor will determine whether the exemption will apply.
{¶21} “6. ODH did not follow the statutory rule-making requirements under ORC
119.03, when it drafted the internal May 1, 1996 Memorandum, the May 6, 1996
Memorandum, or the February 3, 2000 factors or release of any of these factors to the
public.
{¶22} “7. ODH seeks to enforce compliance with the regulations by responding to
complaints and reviewing promotional materials. ODH is not canvassing or investigating
all physician offices in Ohio for compliance with the regulations.
{¶23} “8. Dr. Haskell routinely performs abortions at the Centers.”
{¶24} In the appeal involving appellant Founder’s Women’s Health Center
(individually “appellant Founders”), the parties’ stipulations included the following
agreed facts:
{¶25} “1. Harley Blank, M.D., Robert Chosy, M.D., and Karl Schaeffer, M.D. own
and operate Downtown Gynecologists, Inc. d/b/a Founder’s Women’s Health Center.
They routinely perform abortions services at Founder’s.
{¶26} “2. No other physicians provide services at Founder’s.
Nos. 01AP-872 and 01AP-873
5
{¶27} “3. Dr. Blank and Dr. Schaeffer also have an obstetrics and gynecological
practice located on the property of a Catholic hospital. Dr[s]. Blank and Schaeffer perform
surgeries at the practice located at the hospital site, including D & C, biopsy, endometrial
biopsies, skin biopsies, LEEP conization of the cervix, and hysteroscopies. Due to their
contract with the Catholic hospital, abortions are not allowed to be performed on the
premises. Dr. Blank’s prior second practice was not at a Catholic Hospital and he
performed abortions [sic] services there.
{¶28} “4. In response to a complaint that the 22 facilities, including Founder’s,
were operating as unlicensed ambulatory surgical facilities (“ASF”), Ohio Department of
Health (“ODH”) surveyors visited all 22 facilities to determine if they met the definition of
an ASF and a Health Care Facility (HCF). ***
{¶29} “5. ODH issued a determination that Founder’s is an ASFs and required
licensure. Founder’s requested hearings on the determinations that they are ASFs. ***
{¶30} “***
{¶31} “7. Abortions as performed at the Facility are “outpatient surgery”. Abortions
are routinely performed at Founder’s and Founder’s functions separately from a hospital’s
inpatient surgical service and from the offices of podiatrists and dentists.
{¶32} “8. ‘Offices of private physicians’ as used in R.C. 3702.30 is not defined in
Ohio statute or rule. Neither the Ohio State Legislature nor ODH intended for ‘offices of
private physicians’ to be required to be licensed.
{¶33} “9. For the period of September 1998-September 1999, 2128 abortions
were performed at Founder’s.
{¶34} “10. Attachment 3 is a copy of advertisements for the Centers found in the
appropriate Yellow Pages.
{¶35} “11. Attachment 4 is a copy of an internal ODH memo dated May 1, 1996,
concerning ODH’s interpretation of a health care facility. It is the position of ODH that the
primary purpose of the facility is the most significant, though not the exclusive, factor in
distinguishing an ASF from a physician’s office. This internal memorandum was not rule
filed.
{¶36} “12. It is the position of the Center that the definition of a private physician’s
office is a site housing a medical practice owned by a physician licensed to practice
medicine
in
Ohio.
{¶37} “***
{¶38} “15. Nursing home operators, not owners, are licensed by ODH.
Nos. 01AP-872 and 01AP-873
6
{¶39} “16. Adult Care Facilities, not owners, are licensed by ODH.”
{¶40} The parties also entered into an “addendum to stipulations,” which stated
in pertinent part:
{¶41} “1. At Founder’s, the physicians and staff provide abortion services,
including chlamydia cultures, D & Cs, Depo Provera Injections, diaphragm fittings,
emergency contraceptive visits, IUD removal, and ultrasounds. Founder’s performed
3,274 service units in 1999, of those, 1990, or 60% were abortion procedures.
{¶42} “2. Dr. Blank has first hand knowledge of the practice of a periodontal
surgeon. This surgeon performs in his private office, periodontal surgery, gum surgery,
implants, reconstructive mouth surgery, cosmetic surgery. These surgeries are done in
his private office. They constitute at least fifty percent of his practice.” [Report and
Recommen-dation of Hearing Officer, at 5-7.]
{¶43} The hearing examiner issued reports and recommendations finding that
each of the appellants’ facilities met the definition of an ambulatory surgical facility
pursuant to R.C. 3702.30(A)(1)(a), (b) or (f), as well as a health care facility pursuant to
R.C. 3702.30(A)(4), therefore requiring licensing under Ohio law. On May 8, 2000, the
director of ODH issued journal entries accepting the recommendations of the hearing
examiner that each of the facilities were required to be licensed by the state as a health
care facility pursuant to R.C. 3702.30(D).
{¶44} Appellants WMC and Founders filed notices of appeals with the trial court
from the director’s decisions and orders. On July 19, 2001, the trial court issued
decisions affirming the orders of ODH. Appellants WMC and Founders timely appealed
the decisions of the trial court, and by entry of this court the appeals were consolidated.
{¶45} On appeal, appellants set forth the following two assignments of error for
review:
FIRST ASSIGNMENT OF ERROR
Nos. 01AP-872 and 01AP-873
7
{¶46} “THE TRIAL COURT ERRED AS A MATTER OF LAW IN AFFIRMING
OHD’S DECISION THAT APPELLANTS ARE SUBJECT TO LICENSING AND NOT
SHIELDED AS OFFICES OF PRIVATE PHYSICIANS[.]”
SECOND ASSIGNMENT OF ERROR
{¶47} “THE TRIAL COURT ERRED AS A MATTER OF LAW IN AFFIRMING
ODH’S DECISION THAT APPELLANTS ARE HOLDING THEMSELVES OUT AS ASFS
BECAUSE ODH’S DECISION IS CONTRARY TO LAW AND NOT SUPPORTED BY
RELIABLE, PROBATIVE, AND SUBSTANTIAL EVI-DENCE AND THEREFORE
SHOULD BE REVERSED[.]”
{¶48} Appellants’ assignments of error are interrelated and will be addressed
together. In these appeals, appellants WMC and Founders challenge ODH’s inter-
pretation, as well as the constitutionality, of R.C. 3702.30.
{¶49} In Donia v. Ohio Dept. of Health (May 7, 2001), Guernsey App. No.
00CA26, the court noted the applicable standards of review in an administrative appeal
under R.C. 119.12:
{¶50} “*** The standard of review which the trial court must employ in an appeal
from an administrative agency is governed by R.C. 119.12, which states, in pertinent part:
The court may affirm the order of the agency complained of in the appeal if it finds, upon
consideration of the entire record and such additional evidence as the court has admitted,
that the order is supported by reliable, probative, and substantial evidence and is in
accordance with law. In the absence of such a finding, it may reverse, vacate, or modify
the order or make such other ruling as is supported by reliable, probative, and substantial
evidence and is in accordance with law.
{¶51} “The evidence required by R.C. 119.12 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 the evidence is true; (2) ‘probative’
evidence is evidence which tends to prove the issue in question; it must be relevant in
determining the issue; and (3) ‘substantial’ evidence is evidence with some weight; it must
have importance and value. Our Place, Inc. v. Ohio Liquor Control Comm’n (1992), 63
Ohio St.3d 570, 571. ‘The appellate court’s review is even more limited than that of the
trial court. While it is incumbent on the trial court to examine the evidence, this is not a
function of the appellate court.’ Pons v. Ohio State Medical Bd. (1993), 66 Ohio St.3d
619, 621. On an appeal pursuant to R.C. 119.12, an appellate court shall review
evidentiary issues to determine whether the common pleas court abused its discretion in
determining whether or not the agency decision was supported by reliable, probative and
substantial evidence. Id. ‘Abuse of discretion connotes more than an error of law or of
judgment; it implies that the trial court’s attitude is unreasonable, arbitrary or
Nos. 01AP-872 and 01AP-873
8
unconscionable. Tracy v. Merrell Dow Pharmaceuticals, Inc. (1991), 58 Ohio St.3d 147,
152. ***”
{¶52} R.C. 3702.30, which provides for the licensing of “ambulatory surgical
facility” as health care facilities, states in pertinent part:
{¶53} “As used in this section:
{¶54} “(1) ‘Ambulatory surgical facility’ means a facility, whether or not part of the
same organization as a hospital, that is located in a building distinct from another in which
inpatient care is provided, and to which any of the following apply:
{¶55} “(a) Outpatient surgery is routinely performed in the facility and the facility
functions separately from a hospital’s inpatient surgical service and from the offices of
private physicians, podiatrists, and dentists;
{¶56} “(b) Anesthesia is administered in the facility by an anesthesiologist or
certified registered nurse anesthetist and the facility functions separately from a hospital’s
inpatient surgical service and from the offices of private physicians, podiatrists, and
dentists;
{¶57} “***
{¶58} “(f) The facility is held out to any person or government entity as an
ambulatory surgical facility or similar facility by means of signage, advertising, or other
promotional efforts. ***”
{¶59} Appellants assert that the trial court and ODH erred in interpreting this
statute, and appellants argue they are exempt from the licensing requirements for
ambulatory surgical facilities because they fall under the statutory exemption of R.C.
3702.30(A)(1)(a) as “offices of private physicians.” Appellants maintain that the phrase
“offices of private physicians” must be given its plain and ordinary meaning, and they
contend the plain definition of the phrase means that an office of a private physician
exists where a licensed surgeon owns his own business and practices surgery.
Appellants argue that ownership of the practice is the only factor that should be used in
determining the plain meaning of a private physician’s office.
Nos. 01AP-872 and 01AP-873
9
{¶60} Appellants also argue that ODH employed different sets of criteria in
defining whether or not a particular facility is an ambulatory surgical facility (hereafter
“ASF”) or the office of a private physician. As indicated by the stipulations, in May
1996, ODH staff referred to a memorandum, dated May 1, 1996, when considering
health care facility and ASF exemptions. Those guidelines included a consideration of
whether patients are referred to a facility for a specific test and, in the case of group
practices, a consideration of the manner in which the practice is set up and advertised,
and whether or not tests are performed by someone other than the attending physician.
{¶61} In a document dated February 3, 2000, ODH listed the following factors as
relevant in determining whether or not a particular entity should be characterized as an
ASF: whether the physician is a sole practitioner performing procedures on his or her
own patients; whether there are multiple physicians performing the same procedures on
his/her own patients; the relationship of physician to ownership of the entity; the
physician’s primary scope of practice; the frequency/volume of the surgeries; and,
whether the physician received referrals from other physicians to perform the surgeries.
Other factors listed involved the manner in which the entity holds itself out to the public
(i.e., advertising, signage), whether the entity is certified via HCFA, whether the entity is
accredited, and whether the facility is fee billed.
{¶62} We note that, although appellants assert that ODH employed various
criteria in determining that the entities at issue constituted ASFs, the hearing examiner
did not rely upon those factors in finding that appellants met the statutory definition of
ASFs. Specifically, while the hearing examiner recognized that ODH had proposed a
number of factors to be employed in defining “offices of private physicians,” and that
ODH presented in support an internal memorandum, the hearing examiner ultimately
Nos. 01AP-872 and 01AP-873
10
concluded that “[t]his internal memorandum is not a rule of the Ohio Administrative
Code and can provide no legal authority in this case as to how the phrase ‘offices of
private physicians’ is to be interpreted.” Thus, in finding that the appellants in the
instant case were subject to licensure under R.C. 3702.30, the hearing examiner relied
upon a consideration of the statutory language rather than the factors challenged by
appellants.
{¶63} Apart from the specific factors cited above, the stipulations entered in this
case indicate that it is ODH’s position that “the primary purpose of the facility is the most
significant, though not the exclusive, factor in distinguishing an ASF from a physician’s
office.” In general, “[a] court must give due deference to an agency’s reasonable
interpretation of the legislative scheme.” Northwestern Ohio Bldg. & Constr. Trades
Council v. Conrad (2001), 92 Ohio St.3d 282, 287. See, also, Donia, supra, (“a trial
court must accord due deference to an administrative agency’s interpretation of relevant
statutes and provisions of the Ohio Administrative Code”). It has been held that in
instances in which a statute is silent or ambiguous with respect to a specific issue, “‘the
question for the court is whether the agency’s answer is based on a permissible
construction of the statute.'” Northwestern Ohio Bldg., supra, at 288, quoting Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), 467 U.S. 837, 843, 104
S.Ct. 2778, 2782. Further, “no set of statutes and administrative rules will answer each
and every administrative concern.” Northwestern Ohio Bldg., supra, at 289. Here, we
consider whether the trial court erred in finding ODH’s interpretation of “offices of private
physicians” to be reasonable, and we need not give due deference to the agency’s
interpretation if it is inconsistent with the statutory purpose.
Nos. 01AP-872 and 01AP-873
11
{¶64} The phrase “offices of private physicians” is not defined in the statute. As
noted above, appellants contend that ownership is the sole relevant factor in
determining the meaning of a private physician’s office. In addressing this issue, the
trial court rejected appellants’ interpretation, finding that appellants’ focus on ownership
“defeats the purpose of the statute.” More specifically, the trial court held that the intent
of the statute is to “regulate the ambulatory surgery centers to provide safe out-patient
surgery for the public,” and the court further held that “[i]t is the nature of the procedures
performed which must be evaluated in order to determine whether these clinics are
health care facilities and specifically ambulatory surgery centers.”
{¶65} Upon review, we agree with the trial court’s determination that ownership
is not the determinative factor as to whether appellants’ facilities qualify for the statutory
exemption as offices of private physicians. The statute itself does not address the issue
of actual ownership of a particular office by a physician. Presumably, had ownership
been the determining factor the legislature could have specifically provided an
exemption for an ASF “owned and operated” by a physician. As noted by ODH, a
physician owned hospital or nursing home would not cease to be a hospital or nursing
home simply because it is owned by a physician; nor do we believe that the legislature
intended that a physician could purchase or construct what would otherwise be an ASF
and lease it out to an entity for operation as such a facility while claiming an exemption
simply because it was owned by a physician.
{¶66} Pursuant to R.C. 3702.30(A )(4)(a), a “[h]ealth care facility” is defined to
include “[a]n ambulatory surgical facility.” Under R.C. 3702.30(A )(1)(a), an “ambulatory
surgical facility” includes a facility in which outpatient surgery is routinely performed.
The intent of the statute appears to be directed toward a particular type of facility or,
Nos. 01AP-872 and 01AP-873
12
more specifically, the use of that facility, and the provision that outpatient surgical
procedures be “routinely” performed at the facility suggests that the legislature was
concerned with safeguards for facilities regularly devoted to performing outpatient
elective surgery. Thus, because the focus of the statute involves use of the facility, as
opposed to a legal ownership interest in a building, we find unpersuasive appellants’
contention that ownership is the only factor to be used in determining the plain meaning
of a private physician’s office.
{¶67} While it appears that no Ohio cases have attempted to give specific
meaning to the phrase “offices of private physicians,” in In The Matter of: North Shore
Radiology, Inc., (Sept. 1, 1994), Franklin App. No. 94APH02-169, this court discussed,
albeit in dicta, the language of R.C. 3702.51(G) that “a health care facility does not
include the offices of private physicians and dentists whether for individual or group
practice.” In North Shore , a case involving the issue of whether a facility was a free
standing diagnostic imaging center for purposes of certificate of need review law, this
court considered the above language in conjunction with the provision of former R.C.
3702.51 defining the term “health care facility” to mean “a free standing or mobile
diagnostic imaging center.” Id. While it was noted that there is no statute or rule
definition explaining what is meant by the sentence that a health care facility does not
include the offices of private physicians, this court indicated that the appropriate method
may be “to determine the primary use of the facility.” Id. Thus, this court noted that if
the diagnostic imaging center is only incidental to the offices of private physicians, the
facility is not a health care facility requiring a certificate of need; however, if the offices
of private physicians are merely incidental to the operation of the diagnostic imaging
Nos. 01AP-872 and 01AP-873
13
center, then the diagnostic imaging center is a free-standing center and thus a
reviewable health care facility.
{¶68} In the present case, the hearing examiner considered the actual use of the
facilities in considering whether they constituted offices of private physicians. The
hearing examiner, in construing the phrase “offices of private physicians,” noted an
expectation that a “private office” would be commonly considered to be an office used
“primarily, perhaps even exclusively” by a physician for care and treatment of the
physician’s own patients. We find this definition to be reasonable, and we would further
conclude that, similar to the analysis of North Shore, supra, where the evidence
indicates that the primary purpose of a facility is to provide outpatient, ambulatory
surgical services, for which the office of a physician is merely incidental, such facility
would not qualify under the statutory exemption as offices of private physicians.
{¶69} In the case of appellants WMC, the evidence indicates that outpatient
surgery is routinely performed at each of the facilities. The parties stipulated that
abortions, as performed at the facilities, constitute “outpatient surgery,” and it was
further stipulated that approximately “90%” of all medical care at the facilities was for
the performance of abortions. The evidence indicates that, during a one-year time
period, 3,546 abortions were performed at the Dayton facility, 3,363 at the Cincinnati
facility, and 949 at the Akron facility. Further, while Dr. Haskell owns the corporation
that operates the three facilities, five other physicians perform surgery at the facilities.
These physicians are not part of a group practice in partnership with Dr. Haskell, but,
instead, they are independent contractors, compensated on a per-abortion procedure
basis, and not permitted to bill separately for their services at the facilities. The hearing
examiner also noted that the evidence submitted indicated that the surgery performed at
Nos. 01AP-872 and 01AP-873
14
the facilities occurs in “rooms equipped specifically for abortion procedures and for
medical emergencies that can arise in performing such procedures.”
{¶70} In considering the manner in which the practice was operated, including
the fact that “90%” of the medical care is devoted to elective outpatient surgery, and
that the subject facilities employ physicians as independent contractors to perform
surgery for which compensation is made on a per-abortion procedure basis, the hearing
examiner concluded that the evidence failed to show these physicians performed
surgery in either Dr. Haskell’s private physician’s office or in their own private
physician’s office. We agree, and find that the evidence indicates not only that
ambulatory surgical procedures are routinely performed at the facilities, but that the
facilities at issue are devoted primarily to the performance of outpatient ambulatory
surgery as opposed to the diagnosis and treatment of a physician’s own patients.
Accordingly, we conclude that the trial court did not err in affirming ODH’s determination
that appellants’ facilities did not qualify for exemption from licensure requirements as
offices of private physicians under R.C. 3702.30(A)(1)(a).
{¶71} We also conclude that the trial court did not err in affirming ODH’s decision
adopting the hearing examiner’s finding that appellants WMC advertise, pursuant to
R.C. 3702.30(A)(1)(f), as a facility that holds itself out “as an ambulatory surgical facility
or other similar facility by means of signage, advertising, or other promotional efforts.”
Appellants WMC advertise in the Yellow Pages in the Akron/Medina area, as well as the
Dayton area, as “Abortion Care Specialists.” In Cincinnati, appellants WMC advertise in
the Yellow Pages as providing “Abortions Through 24 Wks,” and the advertisement is
under the heading of “Clinics.” We note that the definition of “clinic” includes an
“institution, building, or part of a building where ambulatory patients are cared for.”
Nos. 01AP-872 and 01AP-873
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Stedman’s Medical Dictionary (1961) 327. See, also, Webster’s Third New Int’l
Dictionary (3 Ed.1966) 423 (defining “clinic” as an institution where diagnosis and
treatment are made available to outpatients). The critical issue, for purposes of R.C.
3702.30(A )(1)(f), is whether the entity holds itself out as an ASF or similar facility by the
types of services it advertises or promotes. As noted, the parties stipulated that
abortion as performed at the facilities is an outpatient surgical procedure. Here, where
appellants WMC advertise as providing outpatient ambulatory surgical services in the
form of abortions, the evidence supports ODH’s determination that appellants WMC
hold themselves out as “an ambulatory surgical facility.”
{¶72} We next consider the issue of whether the trial court erred in determining
that appellant Founders was subject to licensure as an ASF. The hearing examiner
noted in his decision that there was no dispute that Founders is located in a building
distinct from another building in which inpatient care is provided, and it was also not
disputed that outpatient surgery is routinely performed at Founders. Regarding the
issue of whether Founders is exempt as offices of private physicians, the hearing
examiner noted that the facility consists of two large procedure rooms, two small
examination rooms, a recovery area, a bathroom and two waiting rooms utilized to
provide abortion services among the three physicians working at the facility. The
hearing examiner also noted that two of the physicians who perform procedures at
Founders maintain separate offices at a local hospital where they offer “a broad range
of ob/gyn services, surgical and non-surgical.” These physicians perform abortions only
at Founders, as the evidence indicated that abortions are not permitted at the offices
they maintain at the hospital.
Nos. 01AP-872 and 01AP-873
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{¶73} In its objections to the hearing examiner’s report, appellant Founders
asserted that it was exempt as “offices of private physicians” based upon the fact that
three physicians are the sole shareholders of the corporation owning the facility. In
adopting the recommendation of the hearing examiner, the director of ODH considered
the physical layout of the facility, the percentage of surgical procedures performed, as
well as the fact that two of the physicians maintain medical practices at a separate
location for a variety of obstetric/gynecologic services.
{¶74} Upon review, we find that the trial court did not err in finding that the
evidence supported the hearing examiner’s conclusion that the outpatient surgery
routinely performed at Founders occurs in a facility that functions separately from the
offices of private physicians. The stipulated evidence indicates that ambulatory surgery
in the form of abortions accounts for “60%” of the services provided at appellant
Founders’ facility, and the description of the facility suggests that it was specifically set
up for such procedures. Further, while two of the physicians had other offices at a
hospital where they performed a variety of obstetric/gynecologic services, these
physicians did not perform abortions at those offices, but, instead, utilized the facility at
issue for that purpose. Similar to the evidence regarding appellants WMC, the evidence
indicates not only that outpatient ambulatory surgery is routinely performed at Founders,
but that the facility is primarily devoted to these services. Further, to the extent that the
facility includes the office of a physician, the evidence indicates that such office is
merely incidental to the primary purpose of providing outpatient ambulatory surgical
services.
{¶75} We also find that the record supports a determination that appellant
Founders holds itself out as an ambulatory surgical facility by means of signage,
Nos. 01AP-872 and 01AP-873
17
advertising or other promotion efforts pursuant to R.C. 3702.30(A)(1)(f). Appellant
Founders does not advertise under the names of any of the practitioners but, rather,
under “abortion services.” The Yellow Page ad contains a bolded heading indicating
“Abortion Through 16 Weeks.” The director of ODH, as well as the trial court,
concluded that appellant Founders, through advertisement, specifically offers outpatient
ambulatory surgical services in the form of abortion services for pregnancies through 16
weeks, and therefore adopted the recommendation of the hearing examiner that
appellant Founders qualifies as an ASF under R.C. 3702.30(A)(1)(f). Upon review, we
find that the trial court did not err in finding that appellant Founders holds itself out in
advertisements as a facility specializing in ambulatory surgical procedures.
{¶76} In addition to challenging ODH’s and the trial court’s interpretation of R.C.
3702.30, appellants also raise constitutional challenges to the statute. Appellants first
contend that ODH has engaged in selective enforcement of the statute in violation of the
constitutional right to equal protection. Specifically, appellants assert in their appellate
brief that ODH is proceeding only against physicians providing abortion services.
{¶77} In Cleveland v. Trzebuckowski (1999), 85 Ohio St.3d 524, 531, the Ohio
Supreme Court held:
{¶78} “‘”To support a defense of selective or discriminatory prosecution, a
defendant bears the heavy burden of establishing, at least prima facie, (1) that, while
others similarly situated have not generally been proceeded against because of conduct
of the type forming the basis of the charge against him, he has been singled out for
prosecution, and (2) that the government’s discriminatory selection of him for prosecution
has been invidious or in bad faith, i.e., based upon such impermissible considerations as
race, religion, or the desire to prevent his exercise of constitutional rights.”'” ***
{¶79} In State ex rel. Celebrezze v. Thermal-Tron, Inc. (1992), 71 Ohio App.3d
11, 18-19, the court held:
Nos. 01AP-872 and 01AP-873
18
{¶80} “’[T]he conscious exercise of some selectivity in enforcing a statute fair on
its face does not in and of itself amount to a constitutional violation.’ *** For selective
enforcement to constitute a denial of equal protection, the defendants must demonstrate
purposeful or intentional discrimination. *** This burden is not satisfied by ‘a mere
showing that another person similarly situated was not prosecuted ***; a defendant must
demonstrate actual discrimination due to invidious motives or bad faith. Intentional or
purposeful discrimination will not be presumed from a showing of differing treatment.’ ***
Finally, a defendant prosecuted under a regulatory statute is not relieved of this burden.
***”
{¶81} In the present case, the trial court rejected appellants’ claim of selective
enforcement, noting that one of the exhibits in evidence contained a 17-page list of
providers whom ODH has either licensed or is in the process of licensing. The trial
court cited the fact that the list included “dentists, cosmetic surgeons, eye surgeons,
etc.”
{¶82} Without reference to evidence in the record, appellants assert in their
appellate brief: “ODH is proceeding only against physicians providing abortion services
in their offices.” (Brief of Appellants, at 33.) However, there was no evidence that the
agency deliberately chose not to survey other facilities, nor have appellants presented
evidence that ODH’s decision to survey the facilities at issue was motivated by a
discriminatory purpose. As noted by the trial court, one of the exhibits attached as part
of the stipulations sets forth a list of facilities in the state either licensed as ASFs or that
have an application for licensure pending, including numerous facilities where
physicians provide services other than abortions. Further, we agree with the trial court’s
finding that there was no evidence that ODH was exclusively targeting abortion clinics
merely because a right-to-life group may have made ODH aware that a particular facility
was not licensed. Accordingly, we find that the trial court properly concluded there was
insufficient evidence to support a claim that ODH deprived appellants of their equal
protection rights.
Nos. 01AP-872 and 01AP-873
19
{¶83} Appellants also contend that the trial court erred in failing to find that
ODH’s definition of “offices of private physicians” is unconstitutionally vague because it
fails to give a physician fair warning and is subject to arbitrary enforcement.
{¶84} In addressing this argument, the trial court held that there is nothing
ambiguous about “offices of private physicians.” The court agreed with the hearing
examiner’s definition of a private physician’s office as a place where a physician treats
his or her private patients. The trial court further noted that the facilities at issue are set
up to perform a specific surgical procedure, and that “the patients for the most part are
not regular patients and are not known to the physicians.” The court deemed the
facilities at issue to be in a similar category as hospitals, with the exception that surgery
at appellants’ facilities is performed on an outpatient basis.
{¶85} In its decision, the trial court cited Leon v. Ohio State Bd. of Psychology
(1992), 63 Ohio St.3d 683, for the proposition that terms used in a statute are to be
given their usual and ordinary meaning, and that each case must be evaluated on its
own facts. In Leon, the appellant challenged a statute prohibiting a psychologist from
engaging in sexual relations with “clients or immediate ex-clients.” Id. at 686. Appellant
contended that the term “immediate ex-client” was not defined by regulation, and that
he should not be deprived of his
livelihood based on a regulation
that
is
unconstitutionally vague and subject to differing interpretations.
{¶86} In Leon, supra, the court rejected appellant’s contention, holding in part:
{¶87} “In our view, the term “immediate ex-client” is not uncon-stitutionally vague
either facially or as applied to the particular facts of this case. Simply because the term
“immediate ex-client” was not temporarily defined within the regulation does not make it
unconstitutionally vague. *** As pointed out by the board, application of the term on a
case-by-case basis is appropriate. ***”
Nos. 01AP-872 and 01AP-873
20
{¶88} It has been held that “[t]he test in determining whether or not a statute is
unconstitutionally vague is whether men of common intelligence must necessarily guess
at its meaning.” Lang v. Berger (S.D.N.Y.1977), 427 F.Supp. 204, 211. Thus, in the
context of a statute affecting a member of the medical profession, the court must
consider whether members of such profession “must necessarily guess at the meaning
of phrases set forth in the statute.” Id.
{¶89} In the present case, we do not find that the statutory language at issue is
void for vagueness. The statute sets forth the meaning of “ambulatory surgical facility”
to include a facility “located in a building distinct from another in which inpatient care is
provided,” and in which outpatient surgery “is routinely performed in the facility.”
Further, although “offices of private physicians” is not defined, we do not believe that
members of the medical profession need guess at its meaning. We have previously
found the meaning ascribed by the hearing examiner (i.e., an office used primarily by a
physician for the care and treatment of the physician’s own patients) to be reasonable,
and we believe that members of the medical profession would be able to distinguish
between that type of setting and a facility for which the primary purpose is to provide
outpatient ambulatory surgical services. Further, the fact that ODH may be required to
conduct a case-by-case analysis as to whether a particular entity qualifies under the
exemption for “offices of private physicians” does not, in and of itself, render the statute
void for vagueness. Leon, supra.
{¶90} Finally, appellants contend that ODH’s interpretation of “offices of private
physicians” places an undue burden on a woman’s right to have an abortion.
Appellants assert in their appellate brief that they have raised “sufficient facts” that point
to a potential infringement of the right of women to receive abortion services.
Nos. 01AP-872 and 01AP-873
21
{¶91} In response, ODH argues there is no evidence in the record that
appellants could not meet licensure requirements, or that meeting the requirements
would create such an increase in the cost of abortions as to limit the availability of
abortions. ODH also argues that there is no evidence that meeting licensure would
cause the closure of these four facilities, nor is there evidence that satisfying licensed
requirements of these four facilities would present a substantial obstacle to women
seeking abortions inasmuch as abortions remain available in licensed facilities,
hospitals and doctor’s offices.
{¶92} At the outset, we note that appellants assert their claim without any
citation to the record, and we agree with ODH’s contention that the stipulations and
other evidence do not support appellants’ claim as to “sufficient facts” regarding this
issue. Here, the statute at issue is “abortion neutral” in that the legislature has chosen
to regulate all ambulatory surgical facilities, not just facilities that provide surgery in the
form of abortions. Baird v. Dept. of Public Health (C.A.1, 1979), 599 F.2d 1098, 1102
(the fact that provisions of licensure law for ambulatory health care centers “apply
generally to health care facilities of all kinds, and do not single out abortions, suggests
that they reflect a neutral evaluation and selection of standards deemed necessary to
safeguard the public”). Here, there is no indication that the focus of the legislation was
upon abortion providers; rather, as previously discussed, the statute appears to be
directed at assuring standards of health and safety at all facilities that routinely perform
outpatient surgical procedures.
{¶93} We also note
that other courts have upheld statutes
licensing
“freestanding surgical outpatient facilities” on the grounds that the statutes do not
specifically burden a woman’s right to have an abortion. Abortion Coalition of Michigan
Nos. 01AP-872 and 01AP-873
22
v. Michigan Dept. of Public Health (E.D.Mich.1977), 426 F.Supp. 471 (since states may
regulate the practice of licensed physicians in matters generally related to patient
health, statute regulating freestanding surgical outpatient facilities cannot be considered
facially unconstitutional as applied to first trimester abortion facilities simply because it
narrows the physician’s choice in deciding where an abortion is to be performed). See,
also, Hodgson, M.D. v. Lawson (C.A.8, 1976), 542 F.2d 1350, 1358 (“state can impose
the same regulations on a clinic, specifically built to perform abortions during the first
trimester, that are imposed on other clinics that perform surgical procedures requiring
approximately the same degree of skill and care as the performance of first trimester
abortions”). Accordingly, in light of the record before this court, we find no merit to
appellants’ claim that ODH’s interpretation of the statute places an undue burden on a
woman’s right to have an abortion.
{¶94} Based upon the foregoing, we conclude that the trial court did not err in
affirming the decisions of the director of ODH that appellants are ambulatory surgical
facilities subject to licensure as health care facilities under R.C. 3702.30. Accordingly,
appellants’ first and second assignments of error are overruled and the judgments of the
trial court are hereby affirmed.
McCORMAC, J., concurs.
TYACK, P.J., dissents.
Judgments affirmed.
McCORMAC, J., retired, of the Tenth Appellate District, assigned to active duty
under authority of Section 6(C), Article IV, Ohio Constitution.
TYACK, P.J., dissenting.
{¶95} As a matter of law, the centers at issue here do not meet the definition of
an ambulatory surgical facility under R.C. 3702.30(A). Therefore, I respectfully dissent.
Nos. 01AP-872 and 01AP-873
23
I would sustain the assignments of error and reverse the common pleas court’s
judgment affirming the journal entries of the Director of Health.
{¶96} R.C. 3702.30 states, in pertinent part:
{¶97} “(A) As used in this section:
{¶98} “(1) ‘Ambulatory surgical facility’ means a facility *** that is located in a
building distinct from another in which inpatient care is provided, and to which any of the
following apply:
{¶99} “(a) Outpatient surgery is routinely performed in the facility and the facility
functions separately *** from the offices of private physicians ***;
{¶100} “***
{¶101} “(f) The facility is held out to any person or government entity as an
ambulatory surgical facility or similar facility by means of signage, advertising, or other
promotional efforts.” [Emphasis added.]
{¶102} The main issue is whether or not the centers function separately from the
offices of private physicians, and the parties focus on the meaning of “offices of private
physicians.” Under R.C. 1.42, words and phrases in statutes must be read in context
and construed according to rules of grammar and common usage. In Merriam
Webster’s Collegiate Dictionary (9 Ed.1987) 444, the word “facility” is defined as
“something (as a hospital) that is built, installed, or established to serve a particular
purpose.” The word “private” is defined as “intended for or restricted to the use of a
particular person, group or class ***: belonging to or concerning an individual
person, company, or interest .” Id. at 936. “Office” is defined as “a place
where a particular kind of business is transacted or a service is supplied: as *** the
place in which a professional person (as a physician or lawyer) conducts his or her
professional business.” Id. at 820.
Nos. 01AP-872 and 01AP-873
24
{¶103} Applying these definitions to the words used in the statute, there is no
question that the centers here were established by WMC and Founders to serve a
particular purpose, i.e., to provide women with certain obstetrical, gynecological and/or
reproductive care, including pregnancy termination. The question is whether these
centers function separately from the offices of private physicians. WMC and Founders
assert that the centers are the offices of private physicians because they own the
businesses and practice surgery there. I do not accept the argument that mere
ownership of the business at issue is sufficient to find that the facilities at which the
businesses are carried on are the offices of private physicians. There is nothing in the
statute or in the definition of “office” which requires ownership of the business itself or of
the structure in which such business is situated. Indeed, people go to work in “their”
offices everyday and have no ownership interest in the business. Rather, the plain and
ordinary meaning of “office” is, in essence, a place where a particular kind of business
is transacted or service is supplied.
{¶104} Under this definition, therefore, the centers here are plainly offices—they
are the places where certain physicians provide a service. However, I understand that
such a broad definition was not intended by the legislature. For example, I do not
believe that just because a physician is present in a structure and performs medical
services therein that such structure may then be referred to as his or her office. The
statute must be read in context, and such context if that the facility must be a medical
office that functions separately from the physician’s private office. The word “function,”
as a verb, is defined in Merriam Webster’s as “to *** SERVE[;] to be in action:
OPERATE.” Id. at 498. Hence, in order to be exempt from the licensing requirement,
the facility must operate, in essence, in a manner that is independent of the physician(s)
Nos. 01AP-872 and 01AP-873
25
who may practice there. Of course, a surgical facility cannot function without the use of
surgeons. However, in the context of the statute at issue, it is clear that the physicians
who provide services at the facility must have some connection to the facility other than,
literally, the mere performance of surgeries there.
{¶105} In enacting R.C. 3702.30, the legislature was by no means seeking to
include every physician’s office wherein outpatient surgeries are performed. Indeed, the
opposite was intended by virtue of the exemption in R.C. 3702.30(A )(1)(a) for those
physicians’ offices where outpatient surgeries are performed on site. The majority
opinion accepted the hearing officer’s construction of “offices of private physicians” as
being an office used primarily, perhaps even exclusively, by a physician for the care and
treatment of the physician’s own patients. This is no an unreasonable definition of the
term. However, the application of this definition to the facts herein should have resulted
in a conclusion that the centers here were the offices of private physicians. The women
who go to the centers are the patients of the physicians who perform surgery on or
provide other medical services to them.
{¶106} The majority also applied the following analysis: “where the evidence
indicates that the primary purpose of a facility is to provide outpatient, ambulatory
surgical services, for which the office of a physician is merely incidental, such facility
would not qualify under the statutory exemption as offices of private physicians.” See
majority opinion at ¶22. The majority then goes on to emphasize the percentage of the
medical services rendered that is devoted to abortions (60% of the services rendered at
Founders are abortions, and 90% of the services rendered at WMC are abortions). The
majority then concludes that the centers are devoted primarily to the performance of
Nos. 01AP-872 and 01AP-873
26
outpatient, ambulatory surgery as opposed to the diagnosis and treatment of a
physician’s own patients. Id. at ¶24. I find this to be a misapplication of the statute.
{¶107} First, I have already addressed the patient issue. Clearly, the women who
go to the centers are the patients of the physicians who see them. More importantly,
the majority mistakenly combines the two prongs in R.C. 3702.30(A )(1)(a). The statute
requires that outpatient surgery be “routinely” performed and that the facility functions
separately from the offices of private physicians. The majority combines the
quantitative factor (“routinely”) with the factor dealing with “offices of private physicians.”
The two factors are unrelated and if both are present, licensure is not required. No one
disputes that outpatient surgeries are routinely performed at the centers.1 The fact that
a majority of the services performed at the facilities are surgeries has little if no
relevancy to the issue of whether the facilities are the offices of private physicians or
that the facility functions separately from the offices of private physicians. Again, one
must look at the connection a physician has to the facility wherein the surgeries are
performed in order to ascertain whether or not the facility functions separately from the
offices of a private physician.
{¶108} In the case at bar, Founders clearly does not function separately from the
offices of private physicians. Rather, the center run by Founders is the office of private
physicians. Founders is owned by three physicians, and these three physicians practice
at the center. The center and the physicians’ practice there constitutes these physicians’
private office. The fact that these physicians also practice at a hospital and/or at
1I am compelled to point out that the word “routinely” does not mean “more often than not” or “over fifty
percent.” Rather, it is defined in Merriam Webster’s as “of a commonplace or repetitious character:
ORDINARY[;] *** of, relating to, or being in accordance with established procedure.” Hence, the percentage
of surgical services performed at a facility could be less than 50% of the total services performed, yet
outpatient surgery could still be considered as being “routinely performed.”
Nos. 01AP-872 and 01AP-873
27
another clinic does not affect this conclusion. Many physicians have more than one
office.
{¶109} The common pleas court discussed the fact that the patients are not the
“regular” patients of the physicians. The fact that a physician may see/treat a patient
only one or two times is irrelevant. For example, would the same conclusion be
reached in the situation involving a person who sees an oral surgeon only a few times in
the context of extracting wisdom teeth at the oral surgeon’s office? Of course not.
Indeed, the nature of surgery itself is that a particular type of surgery is usually
performed on a particular person only once and, therefore, the extent of the person’s
involvement with the surgeon is oftentimes only temporary, as opposed to, for example,
the situation involving a person and his or her general practitioner, family physician or
dentist. Hence, the fact that the patient is not a “regular” patient or that the
physician/patient relationship only exists for a finite period of time is immaterial to the
issue of what is a private physician’s office.
{¶110} Again, the focus is more on the physician and his or her relationship to the
facility wherein surgeries are performed rather than the type of surgery or the patient
involved. Here, the owners of Founders were also the practicing physicians at the
center.2 They set up the business, and they operate it. Clearly, Founders does not
function separately from a private physician’s office. The department failed to show that
Founders is any different from (other than the type of surgery performed) the office of an
oral surgeon, a dermatologist, a periodontal surgeon, a plastic surgeon or any other
physician/dentist who routinely performs outpatient surgery in his or her office.
2I also note that the fact that appellants are incorporated businesses is immaterial. It is a common practice
for physicians to form professional corporations for their practices.
Nos. 01AP-872 and 01AP-873
28
Therefore, I would find that Founders is not an ambulatory surgical facility under R.C.
3702.30(A )(1)(a).
{¶111} Admittedly, the determination as to WMC is not as clear-cut as the case
involving Founders. However, I reach the same conclusion. WMC consists of three
separate centers located in Akron, Dayton, and Cincinnati. One physician, Dr. Haskell,
owns the business, and he practices at each center routinely. The evidence also shows
that five other physicians provide services to patients at the centers as independent
contractors. However, three physicians do not bill separately for their services, and the
medical records remain the property of Dr. Haskell. According to paragraph 1 of the
Addendum to Stipulations, Dr. Haskell “retains all direct control over the physicians,
staff, and the functioning of the medical practice, including hiring, training and
supervision of physicians and support personnel, the acquisition of medical equipment,
and design of the office.” Hence, as with Founders, the centers at issue are the places
where Dr. Haskell conducts his business and provides services. His connection with
the centers is more than mere ownership. He operates the business and practices
there.
{¶112} Therefore, I would conclude that the facilities do no function separately
from the offices of Dr. Haskell. Indeed, the centers are Dr. Haskell’s offices. There is
nothing in the statute that would exclude Dr. Haskell’s office from the exemption for
private physician’s offices merely because other physicians, under Dr. Haskell’s control
and direction, perform surgeries there as well. Because the centers are Dr. Haskell’s
offices, they do not constitute ambulatory surgical facilities under R.C. 3702.30(A )(1)(a).
{¶113} I also disagree that the facilities at issue require licensing pursuant to R.C.
3702.30(A )(1)(f). As indicated above, a facility is an ambulatory surgical facility under
Nos. 01AP-872 and 01AP-873
29
R.C. 3702.30(A)(1)(f) if it is held out to any person or government entity as an
ambulatory surgical facility or similar facility by means of signage, advertising, or other
promotional efforts. The trial court found that because appellants’ Yellow Pages’ ads
stated that they provided abortions or were “Abortion Care Specialists,” appellants have
held themselves out as ambulatory surgical facilities. There was simply not sufficient
evidence supporting such a conclusion. The ads did state that the centers provided
abortions, but this alone does not amount to the centers holding themselves out as
ambulatory surgical or similar facilities.
{¶114} As a whole, the ads would not inform the average person that the centers
are ambulatory surgical centers. For example, there is nothing in the ads that
addresses the “ambulatory” aspect of the type of surgery performed.3 For that matter,
the word “surgery” does not appear in the ads. 4 Further, the ads for each center include
such statements as, “Private Medical Practice,” “Physician Owned & Operated,”
“Nationally Recognized, Private Medical Practice,” and “Private Medical Practice
Responding to Your Individual Needs.” This is simply not evidence of holding oneself
out as an ambulatory surgical or similar facility. Accordingly, I would hold that the
centers are not ambulatory surgical facilities under R.C. 3702.30(A )(1)(f).
{¶115} In conclusion, I respectfully disagree with the analyses and conclusions
set forth in the majority opinion as to whether the centers at issue here are ambulatory
surgical facilities under R.C. 3702.30(A )(1)(a) and/or 3702.30(A)(1)(f). They are not
and, therefore, I would sustain the assignments of error and reverse the judgments of
the Franklin County Court of Common Pleas.
3″[A]mbulatory” is defined in Merriam Webster’s as “of, relating to, or adapted to walking[;] *** able to walk
about and not bedridden[;] *** involving an individual who is able to walk about.” Id. at 77.
4There was no evidence that the average person would know that abortion is a form of surgery.
Nos. 01AP-872 and 01AP-873
30