In re Williams

No. 90-1311

Submitted March 20, 1991 —

Decided June 5, 1991.

Physicians — State Medical Board — Disciplinary proceedings — Expert testimony to support charge not always required — Charge must be supported by some reliable, probative and substantial evidence.

O.Jur 3d Physicians etc. § 152.

While the State Medical Board need not, in every case, present expert testimony to support a charge against an accused physician, the charge must be supported by some reliable, probative and substantial evidence. ( Arlen v. Ohio State Medical Bd., 61 Ohio St.2d 168, 15 O.O. 3d 190, 399 N.E.2d 1251, explained.)

APPEAL from the Court of Appeals for Franklin County, No. 89AP-777.

Appellee, Donald R. Williams, M.D., is engaged in the private practice of medicine in the Cincinnati area. Between 1983 and 1986, Dr. Williams prescribed Biphetamine or Obetrol for fifty patients as part of a weight control treatment regimen. Biphetamine, an amphetamine stimulant, is a Schedule II controlled substance recommended for use as "a short-term * * * adjunct in a regimen of weight reduction * * *." Physician's Desk Reference (43 Ed. 1989) 1603, 1604. Obetrol is also a Schedule II substance, and has characteristics similar to Biphetamine. Physician's Desk Reference (33 Ed. 1979) 1237.

Controlled substances are assigned to "schedules" based on their potential for abuse and their medical utility. See, generally, Section 812, Title 21, U.S. Code; R.C. 3719.41 and 3719.44; Sterling Drug, Inc. v. Wickham (1980), 63 Ohio St.2d 16, 17 O.O. 3d 10, 406 N.E.2d 1363; State v. Babcock (1982), 7 Ohio App.3d 104, 7 OBR 136, 454 N.E.2d 556. Biphetamine and Obetrol each contain amphetamine, which is a Schedule II substance, Section 1308.12(d), Title 21, C.F.R., and R.C. 3917.41, and are therefore considered Schedule II substances even though they are not specifically designated as such in R.C. 3719.41. State v. Jennings (1987), 42 Ohio App.3d 179, 537 N.E.2d 685 (chemical content, not trade name, governs how a substance is classified).

On November 17, 1986, appellant, the Ohio State Medical Board ("board"), promulgated Ohio Adm. Code 4731-11-03(B), which prohibited the use of Schedule II stimulants for purposes of weight control. Dr. Williams ceased prescribing Biphetamine and Obetrol for weight control upon becoming aware of the rule.

By letter dated March 12, 1987, the board charged Dr. Williams with violating R.C. 4731.22(B) by prescribing these stimulants without "reasonable care," and thereby failing to conform to minimal standards of medical practice. The crux of the board's charge was that Dr. Williams had departed from accepted standards of care by using these drugs as a long-term, rather than a short-term, treatment.

R.C. 4731.22(B) provides in pertinent part:
"The board, pursuant to an adjudicatory hearing * * * shall, to the extent permitted by law, * * * [discipline] the holder of a certificate [to practice medicine] for one or more of the following reasons:
"* * *
"(2) Failure to use reasonable care discrimination in the administration of drugs, or failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease;
"(3) Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes * * *;
"* * *
"(6) A departure from, or the failure to conform to, minimal standards of care * * *[.]"

A hearing was held before a board examiner. The parties stipulated to the accuracy of the medical records of the patients in question, which detailed the use of Biphetamine and Obetrol for periods ranging from nearly seven months to several years. The board also introduced into evidence the Physician's Desk Reference entries for Biphetamine and Obetrol, which recommend that these drugs be used for only "a few weeks" in the treatment of obesity. The board presented no testimony or other evidence of the applicable standard of care.

Dr. Williams presented expert testimony from Dr. John P. Morgan, the director of the pharmacology program at the City University of New York Medical School, and Dr. Eljorn Don Nelson, an associate professor of clinical pharmacology at the University of Cincinnati College of Medicine. These experts stated that there are two schools of thought in the medical community concerning the use of stimulants for weight control. The so-called "majority" view holds that stimulants should only be used for short periods, if at all, in weight control programs. The "minority" view holds that the long-term use of stimulants is proper in the context of a supervised physician-patient relationship. Both experts testified that, though they themselves supported the "majority" view, Dr. Williams's application of the "minority" protocol was not substandard medical practice.

The hearing examiner found that Dr. Williams's practices violated R.C. 4731.22(B). The examiner recommended subjecting Dr. Williams to a three-year monitored probation period. The board modified the penalty, imposing a one-year suspension of Dr. Williams's license followed by a five-year probationary period, during which he would be unable to prescribe or dispense controlled substances.

Dr. Williams appealed to the Court of Common Pleas of Franklin County pursuant to R.C. 119.12. The court found that the board's order was "* * * not supported by reliable, probative and substantial evidence and * * * [was] not in accordance with law." The court of appeals affirmed.

This cause is before this court pursuant to the allowance of a motion to certify the record.

Lee I. Fisher, attorney general, and Steven P. Dlott, for appellant.

Thompson, Hine Flory, Earle Jay Maiman and Louis F. Solimine, for appellee.

H. BROWN, J.

In an appeal from an administrative agency, a reviewing court is bound to uphold the agency's order if it is "* * * supported by reliable, probative, and substantial evidence and is in accordance with law. * * *" R.C. 119.12; see, also, Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 17 O.O. 3d 65, 407 N.E.2d 1265. In the instant case, we must determine if the common pleas court erred by finding that the board's order was not supported by sufficient evidence. For the reasons which follow, we conclude that it did not and affirm the judgment of the court below.

In its arguments to this court, the board contends that Arlen v. Ohio State Medical Bd. (1980), 61 Ohio St.2d 168, 15 O.O. 3d 190, 399 N.E.2d 1251, is dispositive. In Arlen, the physician was disciplined because he had written prescriptions for controlled substances to a person who the physician knew was redistributing the drugs to others, a practice prohibited by R.C. 3719.06(A). The physician appealed on the ground that the board failed to present expert testimony that such prescribing practices fell below a reasonable standard of care.

We held that the board is not required in every case to present expert testimony on the acceptable standard of medical practice before it can find that a physician's conduct falls below this standard. We noted that the usual purpose of expert testimony is to assist the trier of facts in understanding "issues that require scientific or specialized knowledge or experience beyond the scope of common occurrences. * * *" Id. at 173, 15 O.O. 3d at 193, 399 N.E.2d at 1254. The board was then made up of ten (now twelve) persons, eight of whom are licensed physicians. Id.; R.C. 4731.01. Thus, a majority of board members are themselves experts in the medical field who already possess the specialized knowledge needed to determine the acceptable standard of general medical practice.

While the board need not, in every case, present expert testimony to support a charge against an accused physician, the charge must be supported by some reliable, probative and substantial evidence. It is here that the case against Dr. Williams fails, as it is very different from Arlen. Arlen involved a physician who dispensed controlled substances in a manner which not only fell below the acceptable standard of medical practice, but also violated the applicable statute governing prescription and dispensing of these drugs. In contrast, Dr. Williams dispensed controlled substances in what was, at the time, a legally permitted manner, albeit one which was disfavored by many in the medical community. The only evidence in the record on this issue was the testimony of Dr. Williams's expert witnesses that his use of controlled substances in weight control programs did not fall below the acceptable standard of medical practice. While the board has broad discretion to resolve evidentiary conflicts, see Conrad, supra, at 111, 17 O.O. 3d at 67, 407 N.E.2d at 1267, and determine the weight to be given expert testimony, Arlen, supra, at 174, 15 O.O. 3d at 194, 399 N.E.2d at 1255, it cannot convert its own disagreement with an expert's opinion into affirmative evidence of a contrary proposition where the issue is one on which medical experts are divided and there is no statute or rule governing the situation.

It should be noted, however, that where the General Assembly has prohibited a particular medical practice by statute, or where the board has done so through its rulemaking authority, the existence of a body of expert opinion supporting that practice would not excuse a violation. Thus, if Dr. Williams had continued to prescribe Biphetamine or Obetrol for weight control after the promulgation of Ohio Adm. Code 4731-11-03(B), this would be a violation of R.C. 4731.22(B)(3), and the existence of the "minority" view supporting the use of these substances for weight control would provide him no defense. Under those facts, Arlen, supra, would be dispositive. Here, however, there is insufficient evidence, expert or otherwise, to support the charges against Dr. Williams. Were the board's decision to be affirmed on the facts in this record, it would mean that a doctor would have no access to meaningful review of the board's decision. The board, though a majority of its members have special knowledge, is not entitled to exercise such unbridled discretion.

Accordingly, we conclude that the court of common pleas properly found the board's order unsupported by reliable, probative, and substantial evidence, and we affirm the judgment of the court below.

Judgment affirmed.

MOYER, C.J., SWEENEY, HOLMES and DOUGLAS, JJ., concur.

WRIGHT and RESNICK, JJ., dissent.

WRIGHT, J., dissenting.

The message we send to the medical community's regulators with today's decision is one, I daresay, we would never countenance for their counterparts in the legal community. We are telling those charged with policing the medical profession that their expertise as to what constitutes the acceptable standard of medical practice is not enough to overcome the assertion that challenged conduct does not violate a state statute. In the process, we are weakening the rule of Arlen v. Ohio State Medical Bd. (1980), 61 Ohio St.2d 168, 15 O.O. 3d 190, 399 N.E.2d 1251. To say the least, this is most unfortunate.

The majority acknowledges that the issue is whether Dr. Williams's practice of long-term use of Schedule II drugs departed from acceptable standards. There was no allegation that the practice was illegal — just improper. To distinguish Arlen on the grounds that that case involved violation of a statute is to introduce an irrelevant issue. The focus of Arlen was not whether the doctor had violated a statute, but whether his conduct "* * * failed to conform to a minimum standard of care." Id. at 174, 15 O.O. 3d at 194, 399 N.E.2d at 1255. The majority makes a slight bow in the direction of Arlen's holding by granting that the Ohio State Medical Board "has broad discretion to resolve evidentiary conflicts," but promptly adopts a rule that vitiates that selfsame measure of discretion. The majority asserts, without citation to any authority, that the board "cannot convert its own disagreement with an expert's opinion into affirmative evidence of a contrary proposition where the issue is one on which medical experts are divided and there is no statute governing the situation." The majority contends that the "only" evidence on this issue in this case came from Dr. Williams's experts. This simply overlooks the fact that the parties stipulated to Dr. Williams's practice of long-term drug therapy as part of a weight control treatment regimen. Further, Dr. Williams's experts merely testified to the "split" within the medical community as to the subject practice. They certainly were not testifying as to matters outside the competence of the experts on the medical board or, for that matter, to a practice that we know is counterproductive. And that was the point made by Arlen: the board does not need experts to tell it what constitutes acceptable medical practice.

The majority contends that, absent some testimony from someone or the violation of a statute, the medical board is not to exercise its "unbridled discretion" in deciding cases. I would contend, given the majority's reasoning, that the medical board is left with no discretion at all. Thus, I must respectfully dissent.

RESNICK, J., concurs in the foregoing dissenting opinion.