THE HEARING PROCESS

In Ohio a healthcare licensee or applicant has a right to a hearing when a licensing board intends to render an adverse action against a license or application. The Medical Board can lodge formal charges against a physician for over forty different reasons as specified in Revised Code Sections 4731.22(A) and (B). Other boards and agencies have almost as many specific charging criteria in their respective statutes. The charged professional is referred to as the "Respondent" during the proceedings. It is imperative that an earnest effort be made to protect the application or license because this will be the Respondent's only chance to lay an evidentiary foundation or counter the allegations against them. The charging board will have an assistant attorney general who will prosecute the case.

The hearing process is similar to civil litigation but with some significant differences, one of which is the inability to discover precisely what the state intends to use to make their case. Discovery depositions, by which a witness is questioned under oath prior to trial, are used every day in civil court but are not allowed in medical board hearings. There are also other procedural rules which are unique to medical board litigation. Thus, it is imperative that the physician's attorney has a thorough understanding of the agency tribunal as well as experience with the procedural and substantive rules and protocol.

Medical board hearings are convened before a single hearing examiner who is one of three attorneys employed by the board solely to conduct hearings. The state puts on evidence in support of the allegations and the doctor defends or mitigates. Examination of witnesses proceeds as in a civil or criminal trial and documents are produced and may be included in the body of evidence. Objections are made by the attorneys and the hearing examiner will announce rulings on contested matters.

The Pharmacy Board generally holds their hearings before the full board. Dental and nursing cases are usually assigned to contract hearing officers who are private practice attorneys who sit on certain cases. In the cases with hearing examiners or officers, once the record is deemed complete, the presiding officer will issue a report and recommendation which summarizes the evidence, memorializes significant rulings, lists salient facts, derives from those facts conclusions, and suggests an outcome. After receiving the report and recommendation the Respondent can file formal, written objections. These are not intended to retry the case but should point to specific deficiencies or errors in the report and recommendation. The Respondent may also petition to personally appear at the board meeting when the matter will be finally decided. If aggrieved by the board action, an appeal to a court of law is available under Revised Code 119.12. But it must be filed promptly or the right is lost forever. Some appeals must be filed in Franklin County while others must be filed elsewhere.