Borko Djordjevic, M.D. appealed a judgment from the Franklin County Court of Common Pleas that affirmed a decision by the State Medical Board of Ohio granting his application for reinstatement of his medical license, subject to specific conditions. Djordjevic, who earned his medical degree in 1968 and has held licenses in multiple states, had his Ohio license expire in 1990 due to non-renewal. Following a series of disciplinary actions in California, New Jersey, and New York from 2007 to 2009, he faced sanctions that affected his ability to practice medicine.
In 2016, Djordjevic applied for reinstatement of his Ohio license. The board notified him of its intent to review his application in light of the previous sanctions, as Ohio law allows for denial of reinstatement based on disciplinary actions in other states. Following an administrative hearing, the board conditionally reinstated his license on November 8, 2017, requiring him to pass the Special Purpose Exam (SPEX) within six months, complete a four-month preceptorship with a board-certified plastic surgeon, and undergo a two-year probation with additional terms.
Djordjevic attempted the SPEX on May 15, 2018, but did not pass, resulting in his application for reinstatement being deemed abandoned. The court upheld the board's decision, emphasizing the conditions tied to the reinstatement process.
On October 8, 2018, the appellant applied for reinstatement of his Ohio medical license. The board, in a December 12, 2018 letter, indicated its intent to review the reinstatement application, citing potential grounds for refusal based on disciplinary actions in California, New Jersey, and New York, as well as the appellant's previous failure to pass the SPEX within the required six-month period, which led to the abandonment of his prior application. After a hearing, where the appellant, a medical colleague, and his attorney provided testimony, the hearing examiner recommended reinstatement under conditions similar to those set in November 2017. The examiner noted the consistency of the appellant's situation since the earlier proceedings and upheld requirements for completion of the SPEX within six months, a four-month preceptorship, and a monitoring physician plan due to the appellant's lack of recent practice in the U.S. since 2007 and his failure to pass the SPEX.
The appellant objected to these recommendations, requesting an extended 12-month period for the SPEX and challenging the practicality of the preceptorship and monitoring requirements, arguing that it would be difficult to find willing supervisors given his age and the nature of his practice. As an alternative, he suggested completing the Physician Assessment and Clinical Education Program (PACE). At a board meeting on October 16, 2019, the appellant's attorney reiterated these points. Ultimately, the board adopted the hearing examiner's recommendations but amended the SPEX completion timeline to 12 months, specifying that failing to complete it would result in application abandonment. The board issued its amended order on October 16, 2019.
Appellant challenged the board's order in the common pleas court, claiming it lacked reliable, probative, and substantial evidence and was not in accordance with law. The court upheld the board's decision, referencing the case Henry's Café, which limits its review to whether the board's order meets the necessary evidentiary standards; if it does, the order must be affirmed without modification. The court found that the sanctions against the appellant for violating R.C. 4731.22(B)(22) were supported by sufficient evidence and lawful.
On appeal, the appellant argues that the lower court abused its discretion by affirming the board's order as lawful and by claiming that Henry's Café precluded further scrutiny. In administrative appeals under R.C. 119.12, the common pleas court must evaluate the entire record for substantial evidence supporting the agency's order, while the appellate review is more limited and focuses on whether the lower court abused its discretion.
The appellant does not contest the evidence supporting the 2019 Order but argues that, considering his unique circumstances and the ongoing COVID-19 pandemic, the order was not lawful. He asserts that the 12-month deadline imposed for passing the SPEX exam presents a significant risk of failing to meet the requirement, potentially leading to additional complications in restoring his medical license. The appellant emphasizes the challenges posed by the pandemic, including testing site closures and risks associated with in-person examinations for someone of his age, which he believes further complicate the situation.
Appellant argues that the requirements for preceptorship and practice monitoring imposed by the 2019 Order are excessively burdensome and likely unachievable, particularly due to the unlikelihood of finding a board-certified plastic surgeon willing to serve as a preceptor or supervise him during the two-year probation. He claims these restrictions will effectively prevent him from practicing medicine in Ohio again. Appellant also contends that the board overlooked the PACE Program, which could provide similar assurances of his competency without the complications associated with the preceptorship requirements. He summarizes his position by stating that the 2019 Order creates a cycle of application and denial that hinders his ability to practice, asserting that the conditions are unrelated to his capability to practice safely, given his experience since 1977. He further argues that the board's order is not lawful because it does not grant or deny his application for reinstatement as mandated by R.C. 4731.22(B), but instead treats his failure to complete the SPEX as abandonment of his application. Appellant asserts that while the board could have suspended a granted application with conditions, it did not follow the proper procedures under R.C. 4731.22(B) for imposing such conditions.
Appellant argued that his case was misjudged regarding the board's authority to impose a conditional grant of reinstatement based on the precedent set in Henry's Café. He claimed the common pleas court erred by stating it could not modify the board's sanction, asserting that the board lacked the statutory authority for such a sanction. However, upon reviewing his briefs, the court found that he did not adequately preserve this legal theory, as he failed to cite Henry's Café in his common pleas court brief and did not reference relevant statutes (R.C. 4731.22(B) or 4731.222) in his appellate brief. His arguments focused on the conditions of reinstatement being unreasonable rather than challenging the board's statutory authority. The court noted that parties cannot introduce new arguments on appeal and that appellant provided no legal authority supporting his claim that challenging conditions for reinstatement were contrary to law. Furthermore, he conceded that the board had the authority to grant or deny his reinstatement application, and substantial evidence supported the board's decision. Consequently, the court affirmed the common pleas court's judgment, overruling appellant's assignment of error.
