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Angerbauer v. State Medical Board of Ohio

Court of Appeals of Ohio, Tenth District

August 31, 2017

Steven R. Angerbauer, M.D., Appellant-Appellant,
v.
State Medical Board of Ohio, Appellee-Appellee.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 16CV-7014

          On brief: Graff & McGovern, LPA, and John A. Izzo, for appellant. Argued: John A. Izzo.

          On brief: Michael DeWine, Attorney General, and Melinda R. Snyder, for appellee. Argued: Melinda R. Snyder.

          DECISION

          SADLER, J.

         {¶ 1} Appellant-appellant, Steven R. Angerbauer, M.D., appeals from a judgment of the Franklin County Court of Common Pleas affirming an order of appellee-appellee, State Medical Board of Ohio ("board"), which permanently denied appellant's application to practice medicine and surgery in Ohio. For the following reasons, we affirm the decision of the court of common pleas.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} In December 2013, appellant applied for a license to practice medicine and surgery in the state of Ohio. In his application, appellant disclosed that the Medical Quality Assurance Commission ("commission") of the state of Washington had initiated an investigation into his medical practice and stated his understanding that the commission initiated the investigation based on a concern raised by a third party that someone may have been forging his signature on prescription scripts.

         {¶ 3} In June 2014, appellant and the commission agreed to resolve the matter by way of an "agreed order" that included stipulated findings of fact and conclusions of law. According to the stipulated findings of fact in the agreed order, between summer 2011 and February 2013, appellant worked as an occupational medicine physician where his practice was "limited to treating federal employees for work-related medical issues." (Agreed Order at 2.)

         {¶ 4} Earlier, in June or July 2011, appellant met a 28-year-old female, "Patient A, " at the place of her employment, which the order characterizes as a "Gentlemen's Club." (Agreed Order at 2.) Patient A told appellant she had chronic lower back pain, did not have money, insurance, or a physician, and needed help. Appellant maintained a record for Patient A at his home; the record did not document any inquiry into her medical and mental health history, which, according to Patient A, included significant mental health issues and a history of substance abuse. Appellant examined Patient A at a coffee house, at his home, at a mall tattoo shop where the patient worked, and at a local gas station. Appellant diagnosed Patient A with chronic lower back pain. He did not determine the cause of the pain or order imaging or diagnostic tests.

         {¶ 5} From August 2011 to February 2013, appellant prescribed hydrocodone with acetaminophen 10mg/500mg to Patient A on a regular basis. In the first several months of this period, appellant prescribed 35 to 60 tablets per month to Patient A, an amount that increased to 80 to 120 tablets per month. When Patient A asked for Percocet, appellant told her he could not prescribe Percocet to her because he would have to sign a prescription. To prescribe the hydrocodone, appellant called in the prescription to a pharmacy and, rather than speaking to the pharmacist on duty, always left a voice message. After learning that the commission initiated a complaint, appellant stopped treating and prescribing for Patient A. At some point, appellant gave Patient A $20 and she used his credit card to pay for one night in a hotel. Appellant offered to pay for her books when Patient A expressed interest in finishing her GED, and appellant gave Patient A the food in his refrigerator.

          {¶ 6} In the agreed order, appellant stipulates that he failed to meet his standard of care in his treatment of Patient A, that Patient A's records did not justify the long-term prescribing of hydrocodone, that he repeatedly prescribed hydrocodone in significant amounts without performing an adequate physical examination or formulating a treatment plan, that he failed to order diagnostic tests or determine the medical cause of her pain, and that he failed to have her sign a pain management agreement or take other steps to prevent diversion of the medication. As a finding of fact, appellant agreed that he violated pain management administration rules in several respects and breached the standard of care by violating appropriate physician-patient boundaries in his relationship with Patient A.

         {¶ 7} According to the agreed order, the parties agreed as "conclusions of law" that appellant violated two sections of the state of Washington's "unprofessional conduct" statute-Section 4, involving incompetence, negligence, or malpractice which results in injury to a patient or which creates an unreasonable risk of harm, and Section 7, involving a violation of any statute or administrative rule regulating the profession-and violated several sections of Washington's administrative code involving patient evaluation, treatment plans, informed consent, and written agreements for treatment. (Agreed Order at 4, 5.) Washington R.C. 18.130.180; Washington Adm.Code Sections 246-919-853 to 856.

         {¶ 8} These violations provided grounds for imposing sanctions under Washington R.C. 18.130.160, "Tier B, " as appellant's care of Patient A "created a risk of moderate to severe harm." (Agreed Order at 8.) After finding appellant's record of no prior discipline and his expressed remorse as mitigating factors, the commission imposed sanctions at the minimum range under Tier B, including: monitoring of appellant's license for a period of two and one-half years, course work on ethics, physician-patient boundaries, medical record keeping, opioid prescribing, registration with the Washington Prescription Monitoring Program on his license renewal, and a fine. The agreed order states that if appellant violates the order in any respect, "the Commission may initiate further action against [appellant's] license." (Agreed Order at 7.) Furthermore, the agreed order states:

Protection of the public requires practice under the terms and conditions imposed in this order. Failure to comply with the terms and conditions of this order may result in suspension of the license after a show cause hearing. If [appellant] fails to comply with the terms and conditions of this order, the Commission may hold a hearing to require [appellant] to show cause why the license should not be suspended. Alternatively, the Commission may bring additional charges of unprofessional conduct.

(Agreed Order at 8-9.)

         {¶ 9} In July 2014, appellant sent an e-mail to an enforcement attorney for the board asserting that "[w]ith respect to Patient A, the Commission's allegations were not based on any improper treatment or care with narcotics, but rather were based solely on the lack of strict medical record compliance with [Washington's new] pain management guidelines, " indicating that his treatment of Patient A was reasonable and "resulted in substantial amelioration, " and "[c]learly, Patient A benefitted greatly from her treatment and care, and was not harmed in any manner." (July 17, 2014 E-mail/State Hearing Ex. 4.) Appellant then contends that "[t]hrough this process, I have realized how I could have more appropriately managed the care of Patient A within the strict scope of the pain management guidelines" and the situation "has been a valuable learning experience." (July 17, 2014 E-mail/State Hearing Ex. 4.)

         {¶ 10} By letter dated August 13, 2014, the board sent appellant a notice of opportunity for hearing, alleging that the board had reason to believe the action taken by the state of Washington on his license was a violation of R.C. 4731.22(B)(22). On April 15, 2016, a hearing on the matter was held.[1] Appellant did not personally appear at the hearing but instead submitted a 17-page written statement pursuant to R.C. 119.07. In his written statement, appellant states that the discipline imposed by the commission centered on his violation of physician-patient boundaries and violations of "newly enacted pain management rules." ([Appellant's] Ex. 1.) In regard to the physician-patient boundaries, appellant noted that, at the time he was treating Patient A, he honestly believed he was acting in the best interest of his patient "exemplifying the ideal physician virtues of caring, sympathy, compassion, understanding, respect, empathy, accommodation, availability, personable, approachable, non-bias, and self-effacement, " and now he realizes he should have referred her to other resources. ([Appellant's] Ex. 1.) In regard to prescribing, appellant writes "I was at fault [in record keeping] because I did not keep up on the changes in Washington law that occurred while I was treating Patient A." ([Appellant's] Ex. 1.) Appellant asserts in his letter that he was not under any restriction against treating patients outside of his employment so long as no conflict of interests were present.

         {¶ 11} On June 10, 2016, the hearing examiner issued a report and recommendation finding that the Washington agreed order established a violation of R.C. 4731.22(B)(22). Appellant filed objections to the report and recommendation of the hearing examiner. The board considered appellant's application at the July 13, 2016 board meeting and, thereafter, the board issued its entry of order permanently denying a license to appellant.

         {¶ 12} Appellant appealed to the Franklin County Court of Common Pleas and moved the court for a finding in his favor under R.C. 119.12(I) alleging the board intentionally failed to provide a copy of the transcript of the July 13, 2016 board meeting rather than minutes of the hearing (which were provided by the board). On October 25, 2016, the common pleas court denied appellant's motion. On January 5, 2017, the common pleas court affirmed the board's entry of order permanently denying appellant's application for an Ohio medical license. In doing so, the common pleas court determined that the agreed order "limited" and imposed "probation" on appellant's license under R.C. 4731.22(B)(22) and that appellant's argument regarding receiving a harsher sentence than similarly situated individuals lacked merit. (Jan. 5, 2017 Decision at 10.)

         {¶ 13} Appellant filed a timely appeal to this court.

          II. ASSIGNMENTS OF ERROR

         {¶ 14} Appellant presents five assignments of error:

[1.] The common pleas court abused its discretion when it denied Dr. Angerbauer's request to enter a finding in his favor because the Board intentionally failed to file a transcript of the July 13, 2016, proceeding.
[2.] The common pleas court abused its discretion when it determined the Board's Order was in accordance with law because the Washington Agreed Order does not give the Board the authority to pursue disciplinary action under R.C. 4731.22(B)(22).
[3.] The common pleas court abused its discretion when it determined the Board's Order was based on reliable, probative, and substantial evidence, and in accordance with law.
[4.] The common pleas court abused its discretion when it determined the Board's Order was based upon reliable, probative, and substantial evidence.
[5.] The common pleas court abused its discretion because the Board's Order is not in accordance with law. The Board treated Dr. Angerbauer's actions in the State of Washington differently than it has treated physicians in Ohio, in violation of the equal protection clause and the commerce clause.

         III. STANDARD OF REVIEW

         {¶ 15} Under R.C. 119.12, a common pleas court, in reviewing an order of an administrative agency, must consider the entire record to determine whether reliable, probative, and substantial evidence supports the agency's order and the order is in accordance with law. Univ. of Cincinnati v. Conrad,63 Ohio St.2d 108, 110-11 (1980). The Supreme ...


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