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Demas v. State Medical Board of Ohio

Court of Appeals of Ohio, Tenth District

July 18, 2019

Christopher L. Demas, 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. 18CV-6433

         On brief:

          Dinsmore & Shohl LLP, Eric J. Plinke, Daniel S. Zinsmaster, and Justin M. Burns, for appellant.

          Dave Yost, Attorney General, and Kyle C. Wilcox, for appellee.

         Argued:

          Justin M. Burns.

          Kyle C. Wilcox.

          DECISION

          NELSON, J.

         {¶ 1} Initially after Christopher Lou Demas, a medical doctor, was convicted of seven felony counts of forgery, the State Medical Board of Ohio did not permanently strip him of his license. Rather, the board suspended him from the practice of medicine for a period that ran from June 8, 2013 to September 10, 2014.

         {¶ 2} It was only after the board found him to have circumvented that suspension by practicing in the name of others that it permanently revoked his practice certificate. On administrative appeal to the common pleas court, and as he had before the board, Dr. Demas did not contest the board's power to sanction him for this latest transgression, but argued that the permanent revocation was improper because it had been based on considerations of which he had not been given notice and that were contrary to stipulations he had made with the board. Agreeing with that view, the common pleas court remanded the matter for further proceedings consistent with that rationale. In the next go-round, the board again determined that revocation was the appropriate sanction, and the common pleas court found that the board had followed its directives and upheld the administrative determination.

         {¶ 3} Dr. Demas now appeals from the common pleas court's judgment. The somewhat more detailed procedural history that follows provides further context for our decision affirming the common pleas court's judgment that upheld the medical board's determination.

         {¶ 4} After his various felony convictions for forgery, Dr. Demas wanted to "retain [his] solo family practice * * * during [the] suspension," so he engaged "several physicians * * * from various employment agencies" to keep his several-thousand-patient practice going until he sold it in October of 2013. Demas Affidavit at ¶ 9; Joint Stipulations at ¶ 7, 9. But during the summer of 2013, he "did not have 100% coverage" from those licensed, fill-in ("locum tenens") doctors. Demas Aff. at ¶ 15. He admits that during the June -August 2013 time period, he "prescribed medications to Patients 1 through 8 under the [pretense] that said prescriptions were authorized" by those other doctors, "when, in fact, no such authorization had been provided * * *." Joint Stipulations at ¶ 4 (admitting factual recitation from paragraphs 1-3 of December 9, 2015 Notice of Opportunity for Hearing); Dec. 9, 2015 Notice of Opportunity for Hearing at ¶ 3 (describing ruse); see also, e.g., Demas Affidavit at ¶ 19 ("my staff called in or had prescriptions issued under my direction when the patient had not been seen by the [contract] physicians and when [those] physicians had not authorized the prescription").

         {¶ 5} The state medical board did not view this conduct kindly. After reciting the key facts as then alleged (and later admitted), the board's Notice of December 9, 2015 advised Dr. Demas that by undertaking these actions while his license was suspended, he had violated the conditions of his suspension and practiced medicine without a certificate. Notice of Opportunity for Hearing at 1. The board apprised him of its intent to "determine whether or not to limit, revoke, permanently revoke, suspend, refuse to register or reinstate your certificate to practice medicine and surgery, or to reprimand you or place you on probation * * *." Id. The board also advised him of his right to appear in person, through counsel, or by written submission at the hearing on the matter, and ended its Notice with further reference to potential permanent licensure revocation. Id. at 2.

         {¶ 6} The board conducted its administrative hearing through a hearing examiner on August 25, 2016. Dr. Demas did not appear in person, but was represented by counsel. Aug. 25, 2016 Hearing Proceedings at 5. By agreement of the parties, subpoenas that had issued "to various witnesses," including Dr. Demas himself, were called off, the joint stipulation was submitted, and no live testimony was taken. Id. at 6. The state's lawyer began by expressing his understanding that, freed from factual dispute, the matter had become "a case of mitigation to make a determination" about what sanction was appropriate. Id. at 7. Dr. Demas, through counsel, agreed. His lawyer concurred that, "[a]s noted by [the state's counsel] at the beginning of this case, the factual and legal allegations in this case ...


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