State Med. Bd. of Ohio v. Murray - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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State Medical Board of Ohio, Appellant and Cross-Appellee, v.
Murray, Appellee and Cross-Appellant.
[Cite as State Med. Bd. of Ohio v. Murray (1993), Ohio
St.3d .]
Administrative procedure -- Procedure for adoption, amendment or
rescission of rules -- R.C. 119.03(E), applied.
Pursuant to R.C. 119.03(E), an agency must inform those affected
by the adoption of a rule prior to its effective date by
means which are reasonably calculated to inform such
individuals, but the agency is not required to give public
notice of the rule's adoption.
(No. 92-557 -- Submitted March 10, 1993 -- Decided June 23,
1993.)
Appeal from the Court of Appeals for Franklin County, No.
91AP-519.
By letter dated February 8, 1989, appellee and cross-
appellant, Richard D. Murray, M.D., a plastic and reconstructive
surgeon ("Murray"), was notified that appellant and
cross-appellee, State Medical Board of Ohio ("the board"),
intended to determine what type of disciplinary action should be
taken against him for violations of Ohio Adm.Code 4731-11-05 and
R.C. 4731.22(B)(2), (3), and (6). The board's letter stated that
during the period beginning January 1982, and continuing until at
least October 1988, Murray "* * * prescribed and/or administered
androgens and/or anabolic steroids to patients * * * for purposes
of enhancing the patients' athletic ability and not for medical
purposes." The board further alleged that Murray failed to use
reasonable care discrimination in the administration of drugs;
sold, prescribed, gave away, or administered drugs for other than
legal or legitimate therapeutic purposes; and departed from or
failed to conform to, minimal standards of care for similar
practitioners under the same or similar circumstances regardless
of whether actual injury to a patient had been established.
Pursuant to Murray's request, a hearing on the matter was
held August 14, 1989. Based on the evidence presented to her,
the board's hearing examiner prepared a written report, including
findings of fact and conclusions of law, concluding that Murray
violated Ohio Adm.Code 4731-11-05 and R.C. 4731.22(B)(2), (3),

and (6). The examiner recommended that Murray's certificate to
practice medicine and surgery be revoked.
On October 11, 1989, after considering the hearing
examiner's report and recommendation, and Murray's written
objections, the board adopted the report and recommendation. On
October 13, 1989, the board entered an order revoking Murray's
certificate to practice medicine and surgery in Ohio. From this
decision, Murray filed a notice of appeal in the Franklin County
Court of Common Pleas.
On April 25, 1991, the court of common pleas affirmed the
board's order. On May 2, 1991, Murray filed a notice of appeal
in the Franklin County Court of Appeals.
On January 17, 1992, the court of appeals reversed the
judgment of the court of common pleas, holding that the board
failed to comply with R.C. 119.03(E) in adopting Ohio Adm.Code
4731-11-05, thereby invalidating that rule, and found that the
board's determination that Murray violated Ohio Adm.Code
4731-11-05 was not supported by reliable, probative, and
substantial evidence. Without discussion, the court summarily
overruled six of Murray's other seven assignments of error,
determining that because Ohio Adm.Code 4731-11-05 was invalid,
there was no basis for filing a disciplinary action against
Murray and that further board actions based on the invalid rule
were harmless errors. The court of appeals also overruled
Murray's argument that R.C. 119.12 is unconstitutional.
The cause is now before this court pursuant to the allowance
of a motion and cross-motion to certify the record.

Lee I. Fisher, Attorney General, and Odella Lampkin,
Assistant Attorney General, for appellant and cross-appellee.
Pfau, Pfau & Pfau and William E. Pfau III, for appellee and
cross-appellant.

Alice Robie Resnick, J. The instant case involves an appeal
and cross-appeal that propound two separate but interrelated
questions for our consideration. First, we are asked to decide
whether the court of appeals was correct in holding that Ohio
Adm.Code 4731-11-05 was invalid. In determining the
cross-appeal, we are asked to decide whether the evidence
presented established violations of R.C. 4731.22(B)(2), (3), and
(6),1 and/or Ohio Adm.Code 4731-11-05.2
Finding Ohio Adm.Code 4731-11-05 invalid, the court of
appeals held that the board failed to give reasonable notice of
the adoption of the rule prior to its February 1, 1988 effective
date. The court concluded that such failure invalidated the rule
pursuant to R.C. 119.02.3
Procedures for the adoption, amendment, or rescission of
agency rules are set forth in R.C. 119.03. Of particular
importance in this case are R.C. 119.03(A), (C), (D), and (E).
In relevant part, R.C. 119.03(A) provides that an agency
must give "[r]easonable public notice" at least thirty days in
advance of the date set for a public hearing on the proposed
rule. The notice must include: "(1) A statement of the
agency's intention to consider adopting, amending, or rescinding
a rule; (2) A synopsis of the proposed rule, amendment, or rule
to be rescinded or a general statement of the subject matter to
which the proposed rule, amendment, or rescission relates; (3) A

statement of the reason or purpose for adopting, amending, or
rescinding the rule; (4) The date, time, and place of a hearing
on the proposed action, which shall be not earlier than thirty
nor later than fifty days after the proposed rule, amendment or
rescission is filed under division (B) of this section. In
addition to public notice, the agency may give whatever other
notice it considers necessary. * * *"
In accordance with the directive of R.C. 119.03(A)(4), the
board promulgated Ohio Adm.Code 4731-2-01. Ohio Adm.Code
4731-2-01(A) provides that public notice shall be given by
advertising in one generally circulated newspaper in the cities
of Akron, Cleveland, Columbus, Cincinnati, Dayton, Toledo, and
Youngstown. Subparagraph (B) of this rule also requires that the
board maintain a list of persons who have previously requested
copies of its public notices and that copies of the notices be
mailed to all such persons and to anyone else requesting copies
thereof.
It is undisputed that the board complied with the prehearing
public notice requirements of R.C. 119.03(A). Of importance in
this case, the notice was mailed to the Mahoning County Medical
Society of which Murray is a member and was published in Murray's
local newspaper, the Youngstown Vindicator.
In accordance with R.C. 119.03(C) a public hearing was
conducted December 2, 1987. R.C. 119.03(C) provides that " * * *
any person affected by the proposed action of the agency may
appear and be heard * * * [and] may present his positions
arguments, or contentions, orally or in writing, * * * and
present evidence tending to show that the proposed rule, * * * if
adopted * * *, will be unreasonable or unlawful." A transcript
of the public hearing indicates that several persons offered
opinions in support of the adoption of Ohio Adm.Code 4731-11-05.
Murray did not appear at the hearing nor was any material
submitted by Murray or on his behalf. At its regular January
1988 meeting, the board voted unanimously to adopt Ohio Adm.Code
4731-11-05 and set an effective date of February 1, 1988. See
R.C. 119.03(D).
The board's next step in the validation process is set forth
in R.C. 119.03(E) and Ohio Adm.Code 4731-2-02. R.C. 119.03(E)
provides: "Prior to the effective date of a rule, amendment, or
rescission, the agency shall make a reasonable effort to inform
those affected by the rule, amendment, or rescission and to have
available for distribution to those requesting it the full text
of the rule as adopted or as amended." (Emphasis added.) Ohio
Adm.Code 4731-2-02 is essentially identical to R.C. 119.03(E) and
further states: "The method of notification may include, but is
not limited to, mailing a notice of the action to all persons
whose name appears on the mailing list maintained by the board
pursuant to paragraph (B) of rule 4731-2-01 of the Administrative
Code, or to any person or his attorney who provided evidence,
oral testimony, and/or a written statement of his position,
arguments, or contentions concerning the proposed rule,
amendment, or rescission which were made part of the record of
the public hearing held pursuant to section 119.03 of the Revised
Code."
As set forth above, the board was required to make a
"reasonable effort" to inform those affected by the adoption of
the rule prior to its effective date. It is not disputed that

the board sent notice of the rule's adoption to the persons and
organizations on its mailing list, including the Youngstown
Vindicator and the Mahoning County Medical Society.
The court of appeals concluded that the board's actions, in
toto, did not constitute a "reasonable effort to inform * * *"
pursuant to R.C. 119.03(E). We disagree.
The appellate court correctly determined that as a matter of
interpretation, R.C. 119.03(E) should be read in pari materia
with the other sections of that statute. However, we are not
convinced that the court considered the board's compliance with
the other sections in making its determination that the board's
efforts under R.C. 119.03(E) were not sufficient.
We find it significant that a general statement of the
proposed rule's subject matter, i.e., "Use of Drugs to Enhance
Athletic Ability," was published in the Youngstown Vindicator on
October 29, 1987 under the heading "PUBLIC NOTICE." The
published notice further stated: "The PURPOSE of proposed Rule
OAC 4731-11-05 is to establish standards prohibiting the use of
anabolic steroids, growth hormones, testosterone or its analogs,
human chorionic gonadotropine (HCG), or other hormones for the
purpose of enhancing athletic ability."
Approximately thirty days after publication, a public
hearing was held during which the proposed rule, as published,
was discussed and analyzed. The hearing was, pursuant to R.C.
119.03(C), open to any person affected by the proposed action.
Subsequent to the hearing, the board adopted the rule and
announced its effective date. The only prevalidation condition
remaining was that prior to February 1, 1988, the board was
required to make a "reasonable effort to inform those affected by
the rule * * *" of its adoption. R.C. 119.03(E).
In the instant case, we find that the board's efforts to
inform those affected were "reasonable." In contrast to the
prehearing mandate set forth in R.C. 119.03(A)(1) and Ohio
Adm.Code 4731-2-01, the board was not required to give public
notice of the rule's adoption. Further, in contrast to the plain
language of Ohio Adm.Code 4731-2-01, there is no publication
requirement in R.C. 119.03(E). The board also provided its
licensees with the knowledge that its methods of notification
might "* * * include, but [are] not limited to, mailing a notice
of the action to all persons whose name appears on the mailing
list * * *" or who provided evidence at the public hearing. Ohio
Adm.Code 4731-2-02.
While we recognize that Murray's name is not on the board's
mailing list, we are also cognizant of the fact that notice of
the public hearing was published and Murray could have
participated in the adoption process and/or requested additional
information on the proposed rule. In addition, it is important
that as a board-certified physician and surgeon in the state of
Ohio, Murray's medical practice is governed by R.C. Chapter 4731
as well as the rules promulgated by the board in Ohio Adm.Code
Chapter 4731.
Quite simply, we are unwilling to analogize the behavior of
one who feigned ignorance or chose to be conveniently unaware of
a rule to that of someone who was genuinely uninformed due to
someone else's mistake or oversight. Notwithstanding any of
Murray's other arguments, e.g., shortly after the effective date,
he asked the board for a copy of the rule and allegedly never

received it and/or he received a copy of a board publication
containing the rule but did not see the relevant article, we find
that the board's efforts were reasonably calculated to inform
those affected by the rule's adoption; therefore, we reverse the
court of appeals in part and hold that Ohio Adm.Code 4731-11-05
is valid.
Murray has set forth six arguments in his cross-appeal.
First, he argues that the decision to revoke his license was not
supported by reliable, probative, and substantial evidence,
asserting that his practice of prescribing medications prior to
February 1, 1988 was in a legally permitted manner. Murray
further argues that there was no evidence supporting the board's
conclusion that his conduct was below acceptable standards.
Facts adduced at the hearing showed that at least as early
as 1982, Murray prescribed anabolic steriods, androgens, and HCG
to approximately two hundred patients solely for the purpose of
enhancing their athletic ability. Complete records for twenty of
Murray's patients were introduced into evidence. Testimony
regarding the records indicated that little or no medical
histories were obtained prior to Murray's prescribing anabolic
steroids. Murray stated that the lack of medical histories could
be explained by his practice of not recording a history unless
the patient reported past health problems. No laboratory tests
were obtained for any of the patients. The evidence also showed
that patients were not scheduled for follow-up appointments and
further revealed that, in 1985, Murray prescribed steriods to a
patient even though he had reason to suspect that the patient was
selling the drugs.
The results of a medical study introduced into evidence by
Murray indicated that some of the more serious health risks
associated with steroid usage were more likely to occur if the
usage continued for a period longer than six months. Certain of
the patient records showed that Murray repeatedly wrote
prescriptions allowing his patients' steriod use to continue for
periods of much longer than six months.
The standard of review for a decision of the board is set
forth in R.C. 119.12: "The court may affirm the order of the
agency * * * 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." Murray's argument
focuses on the establishment of an accepted standard of care
against which his practices could be evaluated. He asserts that
prior to the effective date of Ohio Adm.Code 4731-11-05, no
medical standards regarding steriod use existed; therefore, in
the absence of expert medical testimony, his alleged failure to
meet minimal standards of care was not supported by substantial,
probative evidence.
Murray also appears to ignore the fact that the board is
composed primarily of experienced health professionals. The
legislature and the courts of Ohio have delegated comprehensive
decision-making power to the board. Such power includes, but is
not limited to, the authority to rely on the board's own
knowledge when making a decision rather than looking to the
record for the opinion of an expert.
It is well established that "* * * expert testimony as to a
standard of practice is not mandatory in a license revocation

hearing and the board may rely on its own expertise to determine
whether a physician failed to conform to minimum standards of
care." Arlen v. State (1980), 61 Ohio St.2d 168, 172, 15 O.O.3d
190, 193, 399 N.E.2d 1251, 1254. "* * * [A] requirement [of]
expert testimony in the record of a license revocation proceeding
usurps the power of the State Medical Board's broad measure of
discretion. * * *" Id. at 174, 15 O.O.3d at 194, 399 N.E.2d at
1255.
Murray argues that Arlen is not applicable to this case
because it was decided prior to the employment of hearing
examiners. This argument is not pursuasive.
The record indicates that the board reviewed the evidence
presented at the hearing as well as the examiner's findings and
recommendations. Consequently, we find that it was the board's
decision, acting independently of the hearing examiner, to revoke
Murray's license. In reaching its decision, the board was aided
by a hearing transcript, exhibits, and the examiner's report.
The board applied its professional judgment to the material
presented and reached a conclusion fully supported by the
evidence.
In arguing the inapplicability of Arlen, Murray urges us to
follow In re Williams (1991), 60 Ohio St.3d 85, 573 N.E.2d 638.
We find Williams to be factually distinguishable from the case
before us. In Williams, the accused doctor presented expert
testimony that his decisions to prescribe controlled substances
in a weight control program were within accepted medical
standards. Id. at 87, 573 N.E.2d at 640. This court determined
that the board apparently disagreed with the doctor's expert and
"* * * convert[ed] its own disagreement * * * 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." Id. In contrast, Murray did not
present expert testimony supporting his contention that his
actions were within acceptable guidelines.
Murray attempts to convince this court that because the
standard of practice announced in Ohio Adm.Code 4731-11-05 did
not become effective until February 1, 1988, the board was
required under the law announced in Williams to present expert
testimony regarding the acceptable standard of care governing
activities prior to the rule's effective date. The Williams
opinion does not set forth such a requirement.
In Williams, this court stated: "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." Id. at 87,
573 N.E.2d at 640. The Williams court found that the board's
case failed due to a lack of evidence, not because the board
failed to present expert testimony. On the contrary, in its case
against Murray, the board presented an extensive compilation of
documentation, exhibits, and testimony that, in our opinion,
constituted reliable, probative and substantial evidence
supporting its charges. Accordingly, we find that the lack of
expert testimony regarding a standard of care does not in any way
preclude a conclusion that the board's findings were supported by
reliable, probative, and substantial evidence and that its order
is in accordance with law.
In his second argument, Murray asserts that the board

improperly precluded him from conducting depositions prior to
this hearing. By letter dated April 14, 1989, Murray requested
that the board issue three subpoenas duces tecum. The board
responded negatively to Murray's request, stating in a letter
dated May 4, 1989, that: "Neither Chapter 119. nor the Board's
procedures permit the taking of discovery depositions."
R.C. 119.09 provides comprehensive regulations for the
conduct of adjudication hearings. At the time of Murray's
hearing, this section provided, in relevant part: "For the
purpose of conducting any adjudication hearing required by
sections 119.01 to 119.13 of the Revised Code, the agency may
require the attendance of such witnesses and the production of
such books, records, and papers as it desires, and it may take
the depositions of witnesses residing within or without the state
in the same manner as is prescribed by law for the taking of
depositions in civil actions in the court of common pleas, and
for that purpose the agency may, and upon the request of any
party receiving notice of said hearing as required by section
119.07 of the Revised Code, shall, issue a subpoena for any
witness or a subpoena duces tecum to compel the production of any
books, records, or papers, directed to the sheriff of the county
where such witness resides or is found, which shall be served and
returned in the same matter as a subpoena in a criminal case is
served and returned. * * *"
In Ohio State Bd. of Pharmacy v. Frantz (1990), 51 Ohio
St.3d 143, 555 N.E.2d 630, paragraph one of the syllabus, this
court held: "The mandatory language of R.C. 119.09 pertains to
securing attendance of witnesses and production of books,
records, or papers at the request of a party for the purpose of
conducting an adjudication hearing; it does not provide for
prehearing discovery depositions by a party to an adjudication
hearing." Murray argues that Frantz is inapplicable because his
letter did not request "prehearing discovery depositions,"
asserting that he simply asked for "depositions."
Regardless of whether the depositions were described as
"prehearing discovery depositions" or "depositions," there is no
question but that they were to be conducted on May 8, 1989, prior
to the hearing. Clearly, any such depositions would have been
pre-hearing and, therefore, not permitted by R.C. Chapter 119.
Murray's third argument focuses on the confidentiality of
board records. Murray asserts that pursuant to his request for
the production of board records, the hearing examiner should have
viewed the records in camera and determined which portions were
confidential or subject to the physician-patient privilege.
The board's power to investigate evidence that suggests a
violation of R.C. Chapter 4731 or a board rule is found in R.C.
4731.22(C)(1). In relevant part, R.C. 4731.22(C)(1) provides:
"Information received by the board pursuant to an investigation
shall be confidential and not subject to discovery in a civil
action."
Murray asserts that notwithstanding this clear legislative
directive, the hearing examiner and/or the common pleas court
should have viewed the board's evidence in camera and released to
Murray that which was not confidential. We find such an argument
to directly contravene the statute, i.e., information received by
the board during an investigation is confidential.
Murray also argues that the phrase "* * * and not subject to

discovery in any civil action * * *," as used in R.C.
4731.22(C)(1), is merely a definition or an explanation of the
word "confidential." On the contrary, we find that the phrase
depicts a separate and distinct characteristic of the information
received by the board. In other words, such information is to be
kept confidential at all times and is not, under any
circumstances, including the issuance of a protective order,
discoverable in a civil action.
Murray's fourth argument focuses on his motion to orally
address the board. Murray asserts that he was misadvised by the
board in its September 14, 1989 letter and was not aware that the
examiner's report would be considered at the board's meeting on
October 11-12, 1989.
The board's September 14, 1989 letter to Murray stated that
any written objections to the report filed by Murray would "* * *
be considered by the State Medical Board at its October 11-12,
1989 meeting, before approving, modifying, or disapproving the
Recommendation."
The letter also stated: "No oral presentation will be
permitted at the time the Board considers the Report and
Recommendation except for purposes of addressing matters which
could not have been presented at hearing or in written
objections. Motions to orally address the Board must be made in
writing within ten (10) days of receipt of the Report and
Recommendation, and must explain why such matters would not have
been previously addressed. The Office of the Attorney General
will be permitted to respond to any oral presentation."
The minutes of the October 11, 1989 meeting indicate that
the board members were advised that Murray had submitted a motion
to orally address the board. The Chair asked for a motion to
approve Murray's request; however, at that time, the board was
advised that neither Murray nor his attorney was present.
Accordingly, Murray's request to address the board became moot.
We find Murray's arguments opposing well-established board
procedures to be without merit. The board's September 14, 1989
letter clearly advised Murray that the examiner's recommendation
would be considered at the October 11-12, 1989 meeting along with
any objections thereto. The board fulfilled its statutory
obligations to Murray. He was informed of his option to request
an opportunity to address the board. The September 14, 1989
letter was complete with a telephone number for the board, an
address, and was signed by a case control officer. Any further
communication regarding the meeting was Murray's responsibility.
His failure to determine the time and/or location of the meeting
does not constitute grounds for invalidating the board's approval
of the examiner's recommendation.
In his fifth argument, Murray asserts that he should have
been allowed to cross-examine the attorney hearing examiner for
the purpose of obtaining evidence that would have proved that the
examiner was not competent to determine the appropriate standard
of care to be applied in this case.
The attorney hearing examiner was designated by the board
pursuant to R.C. 4731.23, R.C. Chapter 119, and Ohio Adm.Code
Chapter 4731-13. The examiner is delegated by the board "* * *
to conduct any hearing which the medical board is empowered to
hold or undertake pursuant to Chapter 119. of the Revised Code.
Such hearing examiner shall hear and consider the oral and

documented evidence introduced by the parties and issue in
writing proposed findings of fact and conclusions of law to the
board for their consideration within thirty days following the
close of the hearing." R.C. 4731.23(A). The authority and
duties of the examiner are fully set forth in Ohio Adm.Code
4731-13-03. Such duties clearly establish that the examiner is a
trier of fact and not a party to the adjudicatory process.
In accordance with R.C. 119.12, the common pleas court was
"* * * confined to the record as certified to it by the agency."
Further, "[u]nless otherwise provided by law, the court may grant
a request for the admission of additional evidence when satisfied
that such additional evidence is newly discovered and could not
with reasonable diligence have been ascertained prior to the
hearing before the agency." Id. Based on the mandate of Ohio
Adm.Code 4731-13-23(D), the record transmitted to the common
pleas court could not have contained evidence obtained by
cross-examining the hearing examiner. This section provides:
"The presiding attorney hearing examiner, because of his duties,
shall not be a competent witness nor subject to deposition in any
adjudication proceeding. Unless the testimony of a board member
or an attorney hearing examiner is material to the factual
allegations set forth in the notice of opportunity for hearing,
board members and an attorney hearing examiner shall not be
competent witnesses nor subject to deposition in any adjudication
proceeding. Evidence from other persons relating to the mental
processes of the presiding attorney hearing examiner or board
members shall not be admissible." Further, the only additional
evidence that is admissible at the common pleas level is evidence
that is newly discovered and not reasonably ascertainable prior
to the adjudication hearing. Quite clearly, there is no
provision in the law for the admissibility of evidence concerning
the attorney hearing examiner's level of expertise regarding the
appropriate standard of care.
In his final argument, Murray asserts that the board's
decision to revoke his license to practice medicine and surgery
was arbitrary and unreasonable. Pursuant to R.C. 4731.22, the
board may, upon finding certain specified circumstances, revoke
or suspend a certificate. Such decision may be affirmed by the
court if it finds that the order is supported by reliable,
probative, and substantial evidence and is in accordance with
law. R.C. 119.12.
As previously set forth, we hold that the board's order was
supported by reliable, probative, and substantial evidence. We
further find that the penalty imposed by the board was in
accordance with law and, therefore, such order will not be
reversed or modified.
For the reasons set forth above, the judgment of the court
of appeals is affirmed as to its ruling on the arguments set
forth in the cross-appeal and reversed as to its holding on the
validity of Ohio Adm.Code 4731-11-05; accordingly, the judgment
of the common pleas court is reinstated.
Judgment accordingly.
Moyer, C.J., A.W. Sweeney, Douglas, Wright and F.E. Sweeney,
JJ., concur.
Pfeifer, J., concurs separately.

FOOTNOTES:

1 R.C. 4731.22(B)(2), (3), and (6) provide: "The board * * *
shall * * * revoke, or suspend a certificate * * * 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 or
a plea of guilty to, or a judicial finding of guilt of, a
violation of any federal or state law regulating the possession,
distribution, or use of any drug;
"* * *
"(6) A departure from, or the failure to conform to,
minimal standards of care of similar practitioners under the same
or similar circumstances, whether or not actual injury to a
patient is established[.]"
2 Ohio Adm.Code 4731-11-05 provides:
"(A) A physician shall not utilize anabolic steroids,
growth hormones, testosterone or its analogs, human chorionic
gonadotropin (HCG), or other hormones for the purpose of
enhancing athletic ability.
"(B) A physician shall complete and maintain patient
medical records which accurately reflect the utilization of any
substance described in this rule. Patient medical records shall
indicate the diagnosis and purpose for which the substance or
drug is utilized, and any additional information upon which the
diagnosis is based.
"(C) A violation of any provision of this rule, as
determined by the board, shall constitute 'failure to use
reasonable care discrimination in the administration of drugs,'
as that clause is used in division (B) (2) of section 4731.22 of
the Revised Code; and 'a departure from, or the failure to
conform to, minimal standards of care of similar practitioners
under the same or similar circumstances, whether or not actual
injury to a patient is established,' as that clause is used in
division (B)(6) of section 4731.22 of the Revised Code. A
violation of paragraph (A) of this rule shall further constitute
'selling, prescribing, giving away, or administering drugs for
other than legal and legitimate therapeutic purposes,' as that
clause is used in division (B)(3) of section 4731.22 of the
Revised Code."
3 R.C. 119.02 provides: "Every agency authorized by law to
adopt, amend, or rescind rules shall comply with the procedure
prescribed in sections 119.01 to 119.13, inclusive, of the
Revised Code, for the adoption, amendment, or rescission of
rules. Unless otherwise specifically provided by law, the failure
of any agency to comply with such procedure shall invalidate any
rule or amendment adopted, or the rescission of any rule."
Pfeifer, J., concurring. While there is an overwhelming
amount of evidence that Dr. Murray violated the standard of care
owed to his patients, I am concerned that the State Medical
Board has discretion under R.C. Chapter 119 to revoke or suspend
doctors' licenses through a trial by ambush. During my short
tenure on this court, I have seen repeated occasions where the
State Medical Board has attempted to provide accused doctors with

as little due process as possible by continuously denying
defendants' requests for information, interrogatories, and
depositions. On future occasions, I will be less likely to
uphold medical board decisions revoking or suspending licenses
when the accused doctor has not been permitted to conduct
elementary discovery procedures.
This court and the General Assembly should consider whether
administrative bodies, such as the State Medical Board, should be
permitted to deny discovery requests on a whim, or whether a more
exacting due process standard should be enacted.