Court: Ohio Court of Appeals; July 27, 2010; Ohio; State Appellate Court
Leonid Macheret appeals a judgment from the Franklin County Court of Common Pleas, which upheld the State Medical Board of Ohio's decision to suspend his medical license for at least one year. The board's disciplinary action stemmed from allegations that Macheret engaged in sexual contact with a patient (Patient 1) without terminating their physician-patient relationship and made false statements regarding this relationship in legal depositions. The board cited multiple violations, including making deceptive statements (R.C. 4731.22(B)(5)), failing to meet minimal standards of care (R.C. 4731.22(B)(6)), violating the American Medical Association's code of ethics (R.C. 4731.22(B)(18)), and failing to cooperate with the board’s investigation (R.C. 4731.22(B)(34)).
During a hearing, Patient 1 testified about her treatment for insomnia, fatigue, and lower back pain, for which Macheret prescribed various supplements and IV injections. Patient 1 developed romantic feelings for Macheret and, after confessing these feelings, they met outside the professional setting. Macheret claimed he informed her he could no longer treat her due to her emotional attachment, while Patient 1 denied this conversation occurred. They subsequently engaged in sexual intercourse after one of her appointments. Following this interaction, Macheret became distant, leading Patient 1 to express her desire to end their relationship, although she later sought his treatment again for a back injury.
Patient 1 confided in her husband about an inappropriate sexual encounter with Macheret, which led to a report to the Cincinnati Academy of Medicine. The Academy referred the case to a board that investigated the matter. During the investigation, Macheret admitted to the sexual intercourse but claimed he had ended the physician-patient relationship before it occurred, both verbally and in writing. Patient 1 contested this, stating she was unaware of any termination of their relationship and asserted that she had ended it herself. To support his claims, Macheret's former medical assistant, Cindy S. Hemme, testified that she mailed two letters instructing Patient 1 to find a new physician. However, these letters were not found in Macheret's medical records.
The hearing examiner found Macheret's testimony not credible and believed Patient 1’s account, concluding that Macheret had engaged in improper conduct. The examiner recommended the board permanently revoke Macheret's medical certificate, with a stay on the revocation, and impose a suspension for at least 180 days. At the board meeting, the suspension was increased to a minimum of one year, while the other recommendations were approved. Macheret appealed to the trial court, which upheld the board's order. Macheret then appealed again, arguing that he was not notified of certain violations, that the board's guidelines did not limit the suspension duration, and that he could not be punished for failing to terminate the relationship in writing prior to 2006 when the written termination rule was enacted.
The trial court's review of an administrative agency's order requires an examination of the entire record for substantial evidence. An appellate court, when reviewing the trial court's decision, must assess whether there was an abuse of discretion regarding the evidence and whether legal standards were met.
Macheret contends that the board improperly increased his sanction based on conduct not outlined in the August 9, 2007 notice of intent, arguing this violated his due process rights to fair notice of charges. The uncharged conduct relates to Macheret's admitted practice of exchanging hugs and air kisses with patients, which he described during his deposition and board hearing. He characterized these interactions as friendly and non-sexual, citing cultural practices.
During the hearing, board members raised concerns about Macheret's behavior. Dr. Dalsukh Madia expressed discomfort with Macheret greeting patients with physical affection, suggesting it could create misunderstandings. Dr. Carol Egner accused Macheret of lying about ending the physician-patient relationship with Patient 1 before engaging in sexual relations and criticized his continued affectionate practices, indicating a lack of confidence in his professionalism. Dr. Anita Steinbergh agreed, labeling Macheret's actions as inappropriate and proposing a minimum one-year suspension due to boundary issues. Dr. Darshan Mahajan supported this view, and both Dr. Jack Amato and W. Frank Hairston backed Steinbergh's proposal for increased sanctions.
Varyani expressed strong disapproval of Macheret's practice of hugging and kissing patients, referencing Ohio's sexual misconduct rules from 2003 and 2007. Although these rules may not apply directly, Macheret admitted to continuing this behavior. Varyani suggested a permanent revocation of Macheret's license, stayed with a suspension of at least one year. Following Varyani's remarks, the board extended Macheret's suspension from 180 days to a minimum of one year, while confirming the hearing examiner's findings and proposed order.
The excerpt also emphasizes the necessity of due process in administrative proceedings, referencing both the Fourteenth Amendment and the Ohio Constitution. It highlights the requirement for fair notice of charges prior to disciplinary hearings, supported by case law, including Mathews v. Eldridge and In re Ruffalo. In Ruffalo, the Supreme Court ruled that an attorney was denied due process when charges were introduced mid-proceeding without prior notice. Macheret's argument of due process violation was dismissed, as the board did not amend charges based on testimony during the hearing; rather, it disciplined him solely for the original four charges cited in the notice of intent.
The board increased the severity of Macheret's sanction, partly due to his inappropriate behavior of hugging and kissing patients, but did not add new charges. It is permissible for a disciplinary body to consider aggravating circumstances, including uncharged misconduct, when determining appropriate sanctions for rule violations. In the case of Columbus Bar Assn. v. Farmer, the Ohio Supreme Court ruled that while misrepresentations made during an investigation could not be used to find a rule violation due to lack of prior notice, they could still be considered as an aggravating circumstance in sanctioning. This principle was reaffirmed in Disciplinary Counsel v. Cox. The board acted within due process by disciplining Macheret solely for charged violations while appropriately considering aggravating circumstances. Macheret's first assignment of error regarding due process was overruled, and his second assignment, questioning the board's adherence to disciplinary guidelines, became moot. In his third assignment, Macheret argued that the board improperly applied Ohio Adm.Code 4731-27-01 retroactively for conduct prior to the rule's effective date. However, the board found that Macheret had failed to provide evidence of terminating the physician-patient relationship in writing, as required by the rule. The rule stipulates that failure to comply constitutes a departure from minimal standards of care, regardless of actual patient harm.
Macheret was disciplined by the board for providing false statements during an investigation, not for failing to comply with Ohio Adm.Code 4731-27-01. He claimed he had terminated the physician-patient relationship in writing before engaging in sexual relations with Patient 1. However, the notice of intent alleged these statements were false and charged him with violations of R.C. 4731.22(B)(5) and (34) for dishonesty. The board found insufficient evidence to support Macheret's claims, particularly because he could not produce a written termination letter. His only supporting witness, Hemme, testified that she sent termination letters to Patient 1 after the sexual encounter, contradicting Macheret’s assertions. The board deemed Macheret's statements untrustworthy based on this lack of evidence. Consequently, Macheret's assignments of error were overruled, and the judgment of the Franklin County Court of Common Pleas was affirmed. The proceedings preserved Patient 1's anonymity, and the document referenced the due process equivalency in Ohio law.
