John D Brownlee 1 SubstanceAbuse UnjustifiedPrescriptions PDF

1
IN THE COURT OF COMMON PLEAS

FRANKLIN COUNTY, OHIO
GENERAL DIVISION
1OHN D. BROWNLEE, M.D., :

APPELLANT, : CASE NO. 12 CVF 13607
vs. : 1UDGE ALAN TRAVIS
STATE MEDICAL BOARD :
OF OHIO

APPELLEE. :
DECISION AND ENTRY
Travis, 1.
This matter is beIore this Court pursuant to the R.C. 119.12 appeal oI Appellant John D.
Brownlee Irom an October 10, 2012 Entry and Order oI the State Medical Board oI Ohio ('Board).
The Board Iound that appellant violated R.C. 4731.22(B)(10), R.C. 4731.22(B)(15), and R.C.
4731.22(B)(20) as set Iorth in Conclusions oI Law 1 through 4 in the Hearing Examiner`s Report
and Recommendation and the Board`s Amendment to Conclusion oI Law #4. Accordingly, the
Board permanently revoked the appellant`s Ohio license to practice medicine and surgery.
FACTS AND PROCEDURAL HISTORY
In a July 13, 2011 letter, the Board notiIied appellant that it proposed to take disciplinary
action against his license to practice medicine and surgery in Ohio. The Board`s allegations
included the Iollowing:
Dr. Brownlee entered into a Step II Consent Agreement with the Board in 2007, based on
his impairment due to drug use, his relapse on Percocet in 2006, and his guilty pleas to
criminal charges regarding IalsiIication oI prescriptions in order to obtain Percocet: and

in 2010, Dr. Brownlee inappropriately obtained prescriptions Ior Vicodin and Percocet by
asking resident physicians under his supervision to write or call in prescriptions Ior a
person who is Dr. Brownlee`s relative. (St. Ex. 1)
Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Feb 21 8:51 AM-12CV013607
2

See September 11, 2012 Report and Recommendation; see also July 13, 2011
Notice Letter.

Hearing Examiner Patricia Davidson conducted a hearing on December 6-8, 2011. The
hearing examiner rendered the Iollowing Findings oI Fact and Conclusions oI Law:
FINDINGS OF FACT
1. On October 12, 2006, John David Brownlee, M.D., entered into a Step I Consent
Agreement with the Board 2006 Step I Consent Agreement}, pursuant to which his
certiIicate to practice medicine and surgery was suspended Ior an indeIinite period oI
time, but not less than 270 days. The 2006 Step I Consent Agreement was based upon
Dr. Brownlee`s admitted relapse on Percocet, his guilty pleas to drug-related criminal
charges, and the court`s granting oI intervention in lieu oI conviction.

On August 9, 2007, Dr Brownlee entered into a Step II Consent Agreement with the
Board 2007 Step II Consent Agreement}, pursuant to which Ohio certiIicate to practice
medicine and surgery was reinstated subject to probationary terms, conditions, and
limitations.

To date, Dr. Brownlee remains subject to the 2007 Step II Consent Agreement, which
includes the Iollowing provision in Paragraph 1:

Dr. Brownlee shall obey all Iederal, state, and local laws, and all rules governing
the practice oI medicine in Ohio ***

Dr. Brownlee inappropriately obtained prescriptions Ior controlled substances in the
name oI his relative, Patient 1, who is identiIied on a conIidential patient key that is not
subject to public disclosure.

a. On Saturday, March 6, 2010, Dr. Brownlee asked a resident physician under his
supervision in the hospital`s training program to write or call in a prescription Ior pain
medicine Ior a relative oI his, Patient 1. Dr. Brownlee told the resident that Patient 1 was
experiencing symptoms consistent with symptoms she had experienced during a previous
urinary tract inIection. Dr. Brownlee explained that his relative was unable to see a
doctor until the Iollowing Monday. The resident physician complied and called in a
prescription Ior Patient 1 Ior Vicodin 5/500 mg, quantity 30, with two reIills.

b. On March 12, 2010, Dr. Brownlee asked a second resident physician under his
supervision in the hospital`s training program to write a prescription Ior Percocet Ior
Patient 1 because she had a twisted ankle. The resident physician complied and wrote a
prescription Ior Percocet 5/325 mg, quantity 30, Ior Patient 1.

c. i. On April 18, 2010, Dr. Brownlee asked a resident physician under his supervision
3

in the hospital`s training program to write a prescription Ior Patient 1, either Ior Vicodin
or Percocet. The identity oI the resident was not established during the hearing, although
Dr. Brownlee identiIied Iive resident physicians he asked to prescribe Ior Patient 1, and
he stated that he believed the April 18, 2010 prescription was provided by one oI those
residents. However, the person identiIied during the hearing as the 'third resident
physician was not among the residents identiIied in Dr. Brownlee`s admissions.

ii. The evidence is insuIIicient to establish the Iollowing: on or about April 18, 2010,
Dr. Brownlee asked a third resident physician under his supervision in the hospital`s
training program to write a prescription Ior Percocet Ior Patient 1 because she had a sinus
inIection; the resident physician complied and wrote a prescription Ior Percocet 5/325
mg, quantity 20, Ior Patient 1.

The individual identiIied as the 'third resident physician did not appear and testiIy at the
hearing regarding the reason given Ior the prescription or regarding the speciIic
medication prescribed.

d. i. The evidence is insuIIicient to establish that, in April 2010, Dr. Brownlee asked a
Iourth resident physician, a resident who was under his supervision in the hospital`s
training program, to write a prescription Ior Percocet Ior a patient in the clinic, and that,
when the resident physician asked the name oI the patient, Dr. Brownlee said, 'don`t
worry about it, Ill put that in.

The individual identiIied as the 'Iourth resident physician did not appear and testiIy at
the hearing regarding the date, circumstances, or content oI the prescription that she
provided.

iii. However, Dr. Brownlee admitted that he had asked the 'Iourth resident physician to
write a prescription Ior Patient 1, Ior either Vicodin or Percocet. He Iurther admitted that
he asked the 'Iourth resident physician to provide this prescription on one oI the
Iollowing dates: March 6, 12, 14, 18; April 2, 8, 18: May 13 or 17, 2010.

However, it is probable that the Iourth resident physician did not write the prescription on
the Iollowing dates, because the evidence demonstrated that other residents provided the
single prescription that Dr. Brownlee obtained Ior Patient 1 on these dates: March 12,
April 8, May 13, and May 17, 2010.

e. On May 13, 2010, Dr. Brownlee asked a IiIth resident physician under his supervision
in the hospital`s training program to write a prescription Ior Percocet Ior a relative
because she had a sinus inIection and back pain. The resident physician complied and
wrote a prescription Ior Percocet 5/325 mg, quantity 28, Ior Patient 1.

3. On April 2, 2010, Dr. Brownlee inappropriately obtained a prescription Ior a
controlled substance by asking a resident physician in the hospital`s training program to
write a prescription Ior Patient 1, whom he described as a patient on whom he had
recently perIormed surgery. The resident physician complied and wrote a prescription Ior
4

Percocet 5/325 mg, quantity 20, Ior Patient 1.

4. On April 8, 2010, Dr. Brownlee inappropriately obtained a prescription Ior a
controlled substance by asking a resident physician in the hospital`s training program to
write a prescription Ior a surgical patient who was meeting him at the hospital. The
resident physician complied and wrote a prescription Ior Percocet 5/325 mg, quantity 30,
in the name that Dr. Brownlee provided, which was Patient 1`s prior name beIore she
Iiled a Iormal name change in 2009.

5. On May 17, 2010, Dr. Brownlee inappropriately obtained a prescription Ior controlled
substance by asking a resident physician in the hospital`s training program to write a
prescription Ior Patient 1. AIter providing Patient 1s name Ior the prescription, Dr.
Brownlee commented, 'not that Patient 1`s name}. The resident physician complied
and wrote a prescription Ior Percocet 5/325 mg, quantity 40, Ior Patient 1.

6. In his sworn answers to the Board`s interrogatories, Dr. Brownlee admitted that on
eight occasions, he had requested resident physicians to provide prescriptions to Patient
1, Ior either Percocet or Vicodin, without the residents having personally, physically
examined and diagnosed Patient 1, and he Iurther identiIied Iive residents who had
provided these prescriptions upon his request. During the eharing, Dr. Brownlee testiIied
that he had unintentionally omitted two additional prescriptions he had requested Irom
physicians who had not personally examined Patient 1, and these prescriptions were Ior
hydrocodone with acctaminophen.

CONCLUSIONS OF LAW

1. The acts, conduct, and/or omissions oI John David Brownlee, M.D., as set Iorth above
in Findings oI Fact 2 through 6, individually and/or collectively, constitute the
'|c|omission oI an act that constitutes a Ielony in this state, regardless oI the jurisdiction
in which the act was committed, as that language is used in R.C. 4731.22(B)(10), to wit;
Deception to Obtain A Dangerous Drug, R.C. 2925.22.

2. Dr. Brownlee`s acts, conduct, and/or omissions, as set Iorth above in Findings oI Fact
1 through 6, individually and/or collectively, constitute a '|v|iolation oI the conditions oI
limitation placed by the board upon a certiIicate to practice, as that language is used in
R.C. 4731.22(B)(15).

3. Dr. Brownlee`s acts, conduct, and/or omissions as set Iorth in Findings oI Fact 2
through 6 above, individually and/or collectively, constitute 'violating or attempting to
violate, any provisions oI this chapter or any rule promulgated by the board, as set Iorth
in R.C. 4731.22(B)(20), to wit: Utilizing Controlled Substances Ior Family Members,
Ohio Admin. Code 4731-11-08.

4. The evidence was insuIIicient to establish that Dr. Brownlee`s acts, conduct, and/or
omissions as set Iorth in Findings oI Fact 2 through 6 above, indivivually and/or
collectively, constitute 'violating or attempting to violate, directly or indirectly, or
5

assisting in or abetting the violation oI, or conspiring to violate, any provisions oI this
chapter or any rule promulgated by the board, as that language is used in R.C.
4731.22(B)(20), to wit: Prescribing to Persons Not Seen by the Physician, Ohio Admin.
Code 4731-11-09.

First, the evidence was insuIIicient to establish that Dr. Brownlee prescribed or caused to
be prescribed controlled substances to Patient 1 when he himselI had 'never personally
physically examined and diagnosed the patient.

However, Dr. Brownlee is also subject to discipline under R.C. 4731.22(B)(20) iI he
assisted, abetted, or conspired in someone elses violation oI Rule 4731-11-09.
ThereIore, iI any oI the residents violated Rule 4731-11-09, and iI Dr. Brownlee assisted,
abetted, or conspired in their violation(s), then his conduct is subject to discipline under
R.C. 4731.22(B)(20).

As set Iorth above in the Discussion OI Legal Aid And Factual Issues, no unbiased
medical expert addressed the extent to which a resident physician, practicing pursuant to
a training certiIicate is an approved clinical training program, (a) may properly rely on
the medical judgment oI the attending physician and the Iactual representations oI the
attending physician, or (b) may properly Iunction as an agent oI the attending physician
in implementing a medical judgment made by the attending physician. In addition,
neither party presented judicial precedent regarding the interpretation oI Rule 4731-11-
09.

In the absence oI reliable expert testimony on the standards Ior appropriate practice in
such circumstances, the Hearing Examiner cannot conclude as a matter oI law that these
resident physicians` reliance on the medical judgment oI the attending physician, who
asked or instructed them to prescribe medication Ior the attending`s patient, committed a
violation oI Rule 4731-11-09.

However, the Board, which Iunctions as a medical expert, can make a diIIerent
determination on this issue. It can provide expert interpretation oI Rule 4731-11-09 and
determine whether any oI the residents committed a violation oI Rule 4731-11-09. II the
Board concludes that anv resident committed a violation oI Rule 4731-11-09, then the
Board may conclude that Dr. Brownlee`s acts, conduct and/or omissions constituted the
disciplinable conduct set Iorth in R.C. 4731.22(B)(20), as it is clear that Dr. Brownlee
was the instigator and abettor oI the resident`s violation oI Rule 4731-11-09, iI any.

Discussion of Proposed Order

Two things struck the Hearing Examiner as the most troubling aspects oI Dr. Brownlee`s
conduct. First, he lied repeatedly during the hearing. He had a chance to tell the truth,
and he did not take advantage oI it. II he had been honest and candid, much could be
Iorgiven. Second, Dr. Brownlee, a teaching physician, exploited the trust and the
vulnerable position oI the resident physicians. He deliberately engaged in deception to
obtain narcotics, and, in doing so, he abused his position oI authority and taught poor
6

principles oI medical practice.

There was no allegation and no Iinding that Dr. Brownlee ingested the narcotics himselI.
As to why Dr. Brownlee really wanted the quantities oI narcotics, that was never clearly
established. However, it was not necessary to establish this Iact in order to conclude that
Dr. Brownlee committed the violations oI the Medical Practice Act as set Iorth above.

An aggravating Iactor Ior consideration in determining the appropriate sanction is Dr.
Brownlee`s history oI discipline due to his prior violations oI the Medical Practice Act.
In the past, when Dr. Brownlee engaged in deception and broke the law to obtain
narcotics, the Board and the Court were lenient, giving him a Iresh start. UnIortunately,
he has again engaged in deception to narcotics. This time, however, he has not stated that
he committed the violations to obtain narcotics solely Ior selI-use, to Ieed an addiction,
which would have been a mitigating Iactor. Under all the circumstances, a permanent
revocation oI the license to practice medicine and surgery is warranted.

See September 11, 2012 Report and Recommendation.

The hearing examiner recommended that the Board permanently revoke the appellant`s
certiIicate to practice allopathic medicine and surgery in the state oI Ohio. The appellant`s case
was presented to the Board at its October 10, 2012. The Board amended the hearing examiner`s
Conclusion oI Law #4, and approved the Report and Recommendation. The Board made the
Iollowing amendment:
RATIONALE FOR AMENDMENT: The evidence establishes that Dr. Brownlee
prescribed or caused to be prescribed controlled substances Ior his Iamily member Ior
whom he himselI had not documented personally examining and diagnosing, and that he
encouraged and incited the violation oI Rule 4731-11-09, OAC, by at least one surgical
resident who had not personally physically examined Dr. Brownlee`s Iamily member.

AMENDED CONCLUSION OF LAW

4. Dr. Brownlee`s acts, conduct, and/or omissions as set Iorth in Findings oI Fact 2
through 6 above, individually and/or collectively, constitute 'violating or attempting to
violate, directly or indirectly, or assisting in or abetting the violation oI, or conspiring to
violate, any provisions oI this chapter or any rule promulgated by the board, as that
language is used in R.C. 4731.22(B)(20), to wit; Prescribing to Persons Not Seen by the
Physician, Ohio Admin. Code 4731-11-09.

First, the credible evidence leads to the conclusion that Dr. Brownlee prescribed or
caused to be prescribed controlled substances to Patient 1 when he himselI had 'never
personally physically examined and diagnosed the patient. A physical examination and
7

diagnosis must be documented in medical records. The hearing record includes no
evidence that Dr. Brownlee completed medical records Ior Patient 1.

In addition, Dr. Brownlee is subject to discipline under R.C. 4731.22(B)(20) because he
assisted, abetted, or conspired in the violation oI Rule 4731-11-09 by at least one
resident. This matter does not involve a surgical attending physician requesting that a
surgical resident write a prescription Ior post-operative care Ior a patient upon whom the
attending physician has perIormed surgery or provided other surgical care or services. It
instead involves a surgical attending physician who abused the attending/resident
relationship in asking at least one surgical resident to write a controlled substance
prescription Ior his Iamily member without examining the patient. The evidence
establishes that Dr. Brownlee encouraged and incited the violation oI Rule 4731-11-09 by
at least one surgical resident who had not personally physically examined Dr. Brownlee`s
Iamily member.

See October 10, 2012 Entry oI Order.

The Board denied the appellant`s motion to dismiss and ordered that his certiIicate to
practice allopathic medicine and surgery in the State oI Ohio be permanently revoked.

APPELLANT`S ASSIGNMENTS OF ERROR
The appellant has asserted the Iollowing Iour assignments oI error:
First Assignment oI Error: The Order was not based upon reliable, probative, and
substantial evidence because the Board`s witnesses lacked credibility.

Second Assignment oI Error: The Order oI permanent revocation constitutes disparate
treatment against Dr. Brownlee violating the American with Disabilities Act.

Third Assignment oI Error: The Board action and discipline against Dr. Brownlee
constitutes selective enIorcement.

Forth (sic) Assignment oI Error: Hearing Examiner reIused to allow presentation oI
testimony by several Respondent witnesses.

STANDARD OF REVIEW
R.C. 119.12 sets Iorth the standard oI review a common pleas court must Iollow when
reviewing an administrative appeal. R.C. 119.12 provides, in pertinent part:
The court may aIIirm the order oI the agency complained oI in the appeal iI it
Iinds, upon consideration oI the entire record and such additional evidence as the
court has admitted, that the order is supported by reliable, probative and
8

substantial evidence and is in accordance with law.

In Our Place the Ohio Supreme Court provided the Iollowing deIinition oI reliable,
probative and substantial evidence as:
(1) Reliable` evidence is dependable; that is, it can be conIidently trusted. In
order to be reliable, there must be a reasonable probability that the evidence is
true. (2) Probative` evidence is evidence that tends to prove the issue in question;
it must be relevant in determining the issue. (3) Substantial` evidence is evidence
with some weight; it must have importance and value.

Our Place, Inc. v. Ohio Liquor Comm., 63 Ohio St.3d 570, 571, (1992).

Once the common pleas court has determined that the administrative agency`s order is
supported by reliable, probative and substantial evidence, the court must then determine whether the
order is in accordance with law. See R.C. 119.12. The reviewing court cannot substitute its
judgment Ior the agency`s decision where there is some evidence supporting the decision. See
Harris v. Lewis, 69 Ohio St. 2d 577, 579, (1982); see also Universitv of Cincinnati v. Conrad, 63
Ohio St. 2d 108 (1980).
LAW AND ANALYSIS

In his Iirst assignment oI error the appellant asserts that the Board`s Order is not supported
by reliable, probative and substantial evidence. Upon review, the record is replete with evidence,
most convincingly by the appellant`s own admissions, that overwhelming supports the Board`s
Order. In his sworn answers to the Board`s interrogatories, the appellant admitted that on eight
occasions he requested resident physicians under his supervision to provide either Percocet or
Vicodin Ior a Iamily member without any oI the identiIied Iive residents having personally,
physically examining and/or diagnosing Patient 1. See Exhibit 23. During the hearing phase, the
appellant also testiIied that he had unintentionally omitted two additional prescriptions he had
9

required Irom physicians who had not personally examined Patient 1, and that those prescriptions
were Ior hydrocodone with acetaminophen.
While remaining subject to the 2007 Step II Consent Agreement, the appellant admitted to
asking several diIIerent resident physicians, whom he supervised, to write prescriptions Ior his
Iamily member, Patient 1. On March 6, 2010 the evidence demonstrates that he told the resident
physician under his supervision that Patient 1 was suIIering Irom the eIIects oI a previous urinary
tract inIection. On March 12, 2010, he told another resident physician under his supervision that
Patient 1 needed a prescription Ior a twisted ankle. On May 13, 2010, the appellant asked another
resident physician under his supervision to write a prescription Ior Percocet Ior a Patient 1 who had
a sinus inIection and back pain. On April 2, 2010, the appellant asked yet another resident
physician under his supervision to write a prescription Ior Patient 1, whom he described as having
recently undergone surgery.
On April 8, 2010 the appellant asked a resident physician under his supervision to write a
prescription Ior a surgical patient who was meeting him at the hospital. The appellant had the
resident write the prescription in Patient 1`s prior name. On May 17, 2010, the appellant had a
resident physician in the hospital`s training program write a prescription Ior Patient 1 but
commented 'not that Patient 1s name}, giving the resident the impression that it was not his
Iamily member. See September 11, 2012 Report and Recommendation.
In his brieI, the appellant challenges the personal knowledge oI the appellees` witnesses.
Logically, the hearing examiner Iound the resident physicians, who worked with the appellant and
were under his supervision, were more credible and possessed superior personal knowledge than
appellant`s witness, Dr. Raphael Chung. The common pleas court must give due deIerence to the
administrative resolution oI evidentiary conIlicts and Iindings oI Iact. For example, the court must
10

deIer to the administrative body, as the Iact Iinder, since the hearing examiner is the person who
actually had the opportunity to observe the demeanor oI the witness and weigh his/her credibility.
Only where the court determines that there exist legally signiIicant reasons Ior discrediting certain
evidence, may it reverse, modiIy or vacate the administrative order.
Thus, where a witness`s testimony is internally inconsistent, or impeached by evidence oI a
prior inconsistent statement, the court may decide that the testimony should be given little or no
weight. This Court will note that in its review, it Iocused on the live testimony oI the resident
physicians at the hearing, and did not give much emphasis to the aIIidavits oI the resident
physicians in concluding that there was other overwhelmingly evidence to support the Board`s
Order. Although there may have been inconsistencies in the residents` live testimony and
aIIiidavits, those inconsistencies were not signiIicant, particularly in light oI the appellant`s
admissions.
The record demonstrates that not only did the hearing examiner Iind the appellees` witnesses
more credible, but that the hearing examiner concluded that the appellant 'lied repeatedly during the
hearing. See September 11, 2012 Report and Recommendation. This Court also agrees with the
hearing examiner in that the Iacts admitted to by the appellant demonstrate, that as a teaching
physician, he exploited the trust and the vulnerable position oI the resident physicians under his
supervision. Clearly, the record is replete with evidence that the appellant deliberately engaged in
deception to obtain narcotics, and in doing so, abused his position oI authority. Moreover, he set a
poor example as to how a physician should conduct himselI/herselI proIessionally. The record
overwhelmingly demonstrates that the appellant`s conduct constituted a pattern oI manipulation,
deception and abuse oI authority, Ior the end result oI his obtaining controlled substances through
11

deceptive means. Accordingly, the appellant`s Iirst assignment oI error is not well-taken and is
OVERRULED.
The appellant asserts in his second assignment oI error that the Board`s Order constitutes
disparate treatment against the appellant, violating the Americans with Disabilities Act. The
appellant asserts that the Board`s actions are based on the Iact that the appellant is a recovering
addict and relies on, what he claims, is the holding in Scheidler v. Ohio Bur. of Workers Comp.,
2005-Ohio-105. A careIul reading oI the Scheidler case demonstrates that the court held as Iollows:
Notwithstanding, even iI appellant could raise his ADA claim as a deIense to the actions
taken by the BWC, we Iind no basis Ior his claim that the BWC violated the ADA. Myriad
statutes permit disciplinary actions or licensing and practice restrictions Ior healthcare
proIessionals entrusted with the saIety and care oI the public who have participated in an
intervention in lieu oI conviction program.Our research Iails to reveal any instances in
which these statutes have Iound to violate the ADA because they permit limitations or
restrictions on the licensing and practices oI the respective healthcare proIessionals on the
basis oI participation in an intervention in lieu oI conviction program. Likewise, we do not
believe that the limitation Ior certiIication contained in Ohio Adm.Code 4123-6-02.2(B)(5)
Ior any provider who has participated in an intervention in lieu oI conviction program runs
counter to the protections aIIorded by the ADA. As the Ohio Supreme Court stated in an
action suspending the license oI an attorney who claimed protection the ADA as a
recovering drug addict whose addiction was the basis Ior the charges brought against
him:The American with Disabilities Act .does not prevent the discipline oI attorneys with
disabilities. This is because the primary purpose oI attorney discipline is that its members
are Iit to practice law. Columbus Bar Assn. v. Elsass (1999), 86 Ohio St. 3d 195, 199-200,
1999 Ohio 93, 713 N.E. 2d 421. Similarly, as the purpose oI Ohio Adm.Code 4123-6-
02.2(B)(5) is to protect claimants, and the BWC`s duty is to promulgate rules toward that
vital end, we Iail to see how the code section violated the ADA.

First, any claims that the appellant has to assert against the Board based on the American
with Disabilities Act are not within the purview oI this lawsuit. Moreover, the Board`s primary
Iocus is the saIety oI the general public. It is the duty oI the Board to protect the public. To
continue to allow the appellant to practice medicine would continue a pattern oI risk to the public
that is simply too great, given the overwhelming evidence oI appellant`s pervasive pattern oI
inappropriate conduct, particularly when he was practicing medicine pursuant to a Step II Consent
12

Agreement and knew that his conduct was being monitored by the Board. Clearly, the holding in
Scheidler is not that which is purported by the appellant`s counsel. In that case the Tenth District
Court oI Appeals held that 'the administrative amendment was not applied retroactively, the
decision was not barred by res judicata, the administrative amendment did not violate state statutory
law, and the decision did not violate the Americans with Disabilities Act. See Id. at 25; see also 42
U.S.C.S. 12101 et seq. Accordingly, the appellant`s second assignment oI error is not well-taken
and is OVERRULED.
In his third assignment oI error the appellant asserts that the Board`s action and discipline
against him constitutes selective enIorcement. His rationale is that the resident physicians whom he
supervised were similarly situated and that none oI them were disciplined Ior writing a prescription
beIore personally examining and diagnosing the appellant`s Iamily member, Patient 1.
First, there is no evidence in the record establishing that the resident physicians involved in
the Iacts oI this case were, or were not, disciplined. Secondly, iI this Court were to be persuaded by
the appellant`s logic, then the appellant, as their supervisor, had an obligation to act iI he thought the
resident physicians under his supervision were violating any Ohio laws by writing prescriptions
without Iirst examining and diagnosing his Iamily member, Patient 1.
Under the Iacts oI this case, appellant`s rationale seems ludicrous since the only reason the
resident physicians were writing the prescriptions in the Iirst place Ior the appellant`s Iamily
member were under Ialse pretenses at the direction oI their supervisor, and through the appellant`s
deception. The Iact that is most blatant to this Court, and the one that appellant`s counsel
continually has chosen to ignore, is that the appellant was the oI these resident
physicians and by no stretch oI the imagination can one conclude that the resident physicians were
similarly situated to the appellant. Moreover, the other pertinent Iact that appellant`s counsel
13

continues to ignore is that the appellant admitted to his unlawIul conduct. Accordingly, the
appellant`s third assignment oI error is not well-taken and is OVERRULED.
In the Iourth assignment oI error, the appellant asserts that the hearing examiner reIused to
allow presentation oI testimony by several respondent witnesses subpoenaed beyond the deadline.
Issues involving subpoenas are reviewed under the abuse oI discretion standard. See State ex rel.
Collins v. Indus. Commn, 2004-Ohio-7201. The Iacts demonstrate that the hearing in this matter
was set Ior December 6, 2011. Under the Board`s rules, requests Ior subpoenas must be Iiled at
least 14 days prior to the hearing or with the permission oI the hearing examiner. O.A.C. 4731-13-
13(C). Thus, the subpoena deadline in this case was November 22, 2011.
Pursuant to R.C. 119.09, the Board prepares all subpoenas and, Iollowing the criminal rules,
the subpoenas are served by the appropriate county sheriII along with the witness Iee. See O.A.C.
4731-13-13(D). The preparation oI subpoenas requires substantial work by a number oI employees.
Some oI those tasks by the Board`s staII include: copying the subpoenas, calculating the mileage
and requesting the required checks Irom the Iiscal oIIice Ior the witness`s expenses, which check
must accompany the subpoenas, determining which county sheriII`s oIIice will serve the subpoenas,
preparing cover letters to the various sheriII`s oIIices, and mailing the subpoena packages to the
sheriII`s oIIices. Under the rules, the Board`s staII has Iive days to complete these tasks.
Once the subpoena packages are delivered to the appropriate sheriII`s oIIice, time is needed
Ior the sheriII`s oIIices to review the subpoenas and serve them, and time also must be allowed Ior
the prooI oI service to be provided to the issuing agency. The minimum 14 days allows time Ior
motions to quash to be Iiled, responsive memoranda, and rulings on such motions. Even when
parties Iile their subpoena requests 14 days in advance oI the hearing date, subpoenas sometimes are
14

not served on the witnesses beIore the hearing iI the sheriII`s oIIice experiences delays in serving
them.
The record shows that the appellant Iiled a request to subpoena numerous witnesses on
November 30, 2011, eight (8) days past the deadline. One oI the reasons the appellant gave Ior his
late request was that he thought he would wait to see iI a continuance was granted. The hearing
examiner concluded that the appellant did not provide a good reason Ior missing the deadline. See
December 2, 2011 Entry Denying Motion Ior Leave to Issue Subpoenas.
A party who wants to be sure that his witnesses show up Ior a hearing will Iile proper
subpoenas in a suIIicient amount oI time, and will not be dilatory or cavalier, and will respect the
seriousness oI the administrative proceedings, particularly when Iacing the potential loss oI his
livelihood. Clearly, the Iacts in this case support that the appellant chose to ignore the subpoena
deadline and '|G|iven that litigation |was| apparently being pursued by Dr. Brownlee against CCF,
1

according to the Respondent`s motion, it would have been prudent to subpoena any witness
employed by CCF. See September 11, 2012 Report and Recommendation at 49. Accordingly, the
hearing examiner`s reIusal to issue subpoenas which were requested aIter the deadline and not grant
a continuance was not a denial of due process since it was the dilatory conduct oI the appellant that
caused his own predicament. Accordingly, the appellant`s Iourth assignment oI error is not well-
taken and is OVERRULED.

1
CCF is the Cleveland Clinic Foundation which was the appellant`s employer. The appellant`s potential witnesses
were employees oI CCF, whom the appellant was suing at the time.
15

DECISION
Accordingly, having overruled all oI appellant`s assignments oI error, this Court hereby
AFFIRMS the October 10, 2012 Entry oI Order oI the State Medical Board oI Ohio.
Rule 58(B) oI the Ohio Rules oI Civil Procedure provides the Iollowing:
(B) Notice of filing. When the court signs a judgment, the court shall
endorse thereon a direction to the clerk to serve upon all parties not
in deIault Ior Iailure to appear notice oI the judgment and its date
oI entry upon the journal. Within three days oI entering the
judgment on the journal, the clerk shall serve the parties in a
manner prescribed by Civ. R. 5(B) and note the service in the
appearance docket. Upon serving the notice and notation oI the
service in the appearance docket, the service is complete. The
Iailure oI the clerk to serve notice does not aIIect the validity oI the
judgment or the running oI the time Ior appeal except as provided
in App. R. 4(A).

THE COURT FINDS THAT THERE IS NO 1UST REASON FOR DELAY. THIS
IS A FINAL APPEALABLE ORDER. Pursuant to Civil Rule 58, the Clerk oI Court shall
serve upon all parties notice oI this judgment and its date oI entry.
It is so ordered.
Copies to all parties registered Ior e-Iiling

Franklin County Court of Common Pleas
Date: 02-21-2013
Case Title: JOHN D BROWNLEE MD -VS- OHIO STATE MEDICAL BOARD
Case Number: 12CV013607
Type: DECISION
It Is So Ordered.
/s/ Visiting Judge Alan C. Travis
Electronically signed on 2013-Feb-21 page 16 of 16
1

IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
GENERAL DIVISION
JOHN DAVID BROWNLEE, M.D., :

APPELLANT, : CASE NO. 12CVF 13607
vs. : JUDGE JOHN BENDER
STATE MEDICAL BOARD :
OF OHIO

APPELLEE. :
DECISION AND ENTRY
Bender, J.
This matter is before this Court pursuant to the November 5, 2012 motion filed by Appellant
John David Brownlee requesting an order staying enforcement of the State Medical Boards
October 10, 2012 Entry of Order permanently revoking his medical license; and also requesting that
the Court accelerate the consideration of the stay and set the matter on the Courts docket for an
immediate hearing.
R.C. 119.12 provides:
The filing of a notice of appeal shall not automatically operate as a suspension of
the order of an agency. If it appears to the court that an unusual hardship to the
appellant will result from the execution of the agencys order pending
determination of the appeal, the court may grant a suspension and fix its terms.
(emphasis added).

In Bob Krihwan Pontiac-GMC Truck, Inc. v. GMC, 141 Ohio App.3d 777, 782-783,
(2001), the Tenth District Court of Appeals held that a trial court has discretion in determining
whether there is unusual hardship that warrants the granting of a stay. The Court identified the
following factors as logical considerations when determining whether it is appropriate to stay an
administrative order pending judicial review: (1) whether appellant has shown a strong or
Franklin County Ohio Clerk of Courts of the Common Pleas- 2012 Nov 20 4:25 PM-12CV013607
2

substantial likelihood or probability of success on the merits; (2) whether appellant has shown
that it will suffer irreparable injury; (3) whether the issuance of a stay will cause harm to others;
and (4) whether the public interest would be served by granting a stay. Id. at p. 783.
The October 10, 2012 Entry of Order states, in pertinent part:
RATIONALE FOR AMENDMENT: The evidence establishes that Dr. Brownlee
prescribed or caused to be prescribed controlled substances for his family member for whom he
himself had not documented personally examining and diagnosing, and that he encouraged and
incited the violation of Rule 4731-11-09, OAC by at least one surgical resident who had not
personally physically examined Dr. Brownlees family member.

AMENDED CONCLUSIONS OF LAW

4. Dr. Brownlees acts, conduct and/or omissions as set forth in Findings of Fact 2 through 6
above, individually and/or collectively, constitute violating or attempting to violate, directly or
indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provisions of
this chapter or any rule promulgated by the board, as that language is used in R.C.
4731.22(B)(20), to wit: Prescribing to Person Not Seen by the Physician, Ohio Admin. Code
4731-11-09.

First, the credible evidence leads to the conclusion that Dr. Brownlee prescribed or caused to be
prescribed controlled substances to Patient 1 when he himself had never personally physically
examined and diagnosed the patient. A physical examination and diagnosis must be
documented in medical records. The hearing record includes no evidence that Dr. Brownlee
completed medical records for Patient 1.

In addition, Dr. Brownlee is subject to discipline under R.C. 4731.22(B)(20) because he assisted,
abetted, or conspired in the violation of Rule 4631-11-09 by at least one resident. This matter
does not involve a surgical attending physician requesting that a surgical resident write a
prescription for post-operative care for a patient upon whom the attending physician has
performed surgery or provided other surgical care or services. It instead involves a surgical
attending physician who abused the attending/resident relationship in asking at least one surgical
resident to write a controlled substance prescription for his family member without examining
the patient. The evidence establishes that Dr. Brownlee encouraged and incited the violation of
Rule 4731-11-09 by at least one surgical resident who had not personally physically examined
Dr. Brownlees family member.

It is hereby ORDERED that:

1. It is hereby ORDERED that the Respondents Motion to Dismiss is DENIED.

2. The certificate of John David Brownlee, M.D., to practice allopathic medicine and surgery in
the State of Ohio shall be PERMANENTLY REVOKED.
3

This Order shall become effective immediately upon the mailing of the notification of approval
by the Board.

See October 10, 2012 Entry of Order.

The appellant asserts that unusual hardship will result if this Court denies his request for
a stay. However, the appellant has not sufficiently demonstrated specific harm from the
continuation of the revocation that is unusual or different from that inherently caused by an order
of revocation. The appellant had ample time while this matter was pending before the Medical
Board to make contingent plans in the event that the Board determined that his medical license
should be permanently revoked. Likewise, the appellant has known since the notice of
opportunity for a hearing was issued on July 13, 2011 that revocation of his Ohio medical license
was a possible sanction.
When asked to stay an administrative order, courts give significant weight to the
expertise of the administrative agency as well as to the public interest. Thus far, the appellant
has not demonstrated a strong or substantial likelihood or probability of success on the merits,
given his egregious conduct as set forth in the record. Furthermore, in considering whether the
issuance of a stay will cause harm to others, this Court concludes that the public interest will be
served by not granting the stay.
Accordingly, the appellants Motion For Stay Of Enforcement During Appeal And
Request For Immediate Hearing is hereby DENIED.
It is so ordered.

Copies to all parties registered for efiling
Franklin County Court of Common Pleas
Date: 11-20-2012
Case Title: JOHN D BROWNLEE MD -VS- OHIO STATE MEDICAL BOARD
Type: DECISION/ENTRY
It Is So Ordered.
/s/ Judge John F. Bender
Electronically signed on 2012-Nov-20 page 4 of 4
Court Disposition
Case Style: JOHN D BROWNLEE MD -VS- OHIO STATE MEDICAL
BOARD
Motion Tie Off Information:
1. Motion CMS Document Id: 12CV0136072012-11-0599980000
Document Title: 11-05-2012-MOTION TO STAY
Disposition: MOTION DENIED

John D Brownlee 1 SubstanceAbuse UnjustifiedPrescriptions PDF

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

John D Brownlee 1 SubstanceAbuse UnjustifiedPrescriptions PDF

Încărcat de

Drepturi de autor:

Formate disponibile

1

IN THE COURT OF COMMON PLEAS

S-ar putea să vă placă și