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Doc cites “one bite rule” in winning reversal of revocation

The Court of Appeals of Ohio, Tenth District, in a May 5 ruling, reversed the Ohio Medical Board's decision to revoke a physician's license, finding that the board did not act with sufficient probative evidence (Mansour v. State Medical Board of Ohio).

Physician Waleed Mansour was indicted on 86 drug-related felony counts involving controlled substances in 2010, for which he pled guilty to two drug-possession charges. The charges were reduced to misdemeanors and Mansour did not have to serve jail time as part of the plea deal.

Later that year, Mansour cooperated with board investigators regarding the indictment, and then submitted his biennial renewal application to practice medicine in the state of Ohio. When asked whether at any time since signing his last application for renewal, “Has any board , bureau, department, agency, or any other body, including those in Ohio other than this board,  filed any charges, allegations or complaints against you,” Mansour answered “No.”

The board concluded that Mansour’s answer had violated R.C. 4731.22(B)(5) by making a “false, fraudulent, deceptive, or misleading statement in his license renewal application” and suspended Mansour’s license for one year. The board agreed the probationary term should be doubled to at least two years due to concerns over Mansour’s mental state.

The panel rejected Mansour’s request for the board to produce Mansour’s interrogatory responses to investigators, which Mansour claimed would demonstrate his cooperation and transparency prior to filling out the renewal application.

The disciplinary measures were affirmed in September by the Franklin County Court of Common Pleas. Mansour appealed to the 10th District Court of Appeals in October.

In appealing the court of pleas decision, Mansour argued that he did not intend to deceive the board, and that the allegations made by the board regarding his mental state were baseless.

Mansour said that he “understood and believed” that his circumstances fit within the “one bite rule” which allows impaired licensees who seek and complete treatment with a board-approved provider to remain in the private sector for monitoring so long as their acts do not result in a criminal conviction or put patients or others at risk of harm.

On the issue of whether Mansour intended to deceive the board, the court noted that “even a well educated person” could have reasonably thought that a grand jury indictment did not apply to the question, which Mansour claimed to be the case. Moreover, Mansour did submit a written statement that he did not believe the question pertained to a grand jury indictment.

The board had no obligation to believe Mansour’s claim that he had no intent to deceive the board, the court of appeals wrote. However, other than Mansour’s answer on the application, there was no evidence deception was Mansour’s intent, given that the words “grand jury indictment” were not abridged in any way with the question.

The court was admittedly “troubled” by the claim made by the board’s president that Mansour’s mental state was of concern and a reason to extend his suspension.

“The board’s decision to increase a proposed penalty for another violation (that of making a false statement) was based on no more than one member’s “concerns” about a matter that was not the subject of any discipline.”

In overturning the board’s decision, the court of appeals upheld the board’s finding that Mansour intended to deceive the board.

Furthermore, the court found that “as a matter of law” the Board erred and the trial court erred when it upheld the Board’s decision to quash Mansour’s request for a subpoena to produce his interrogatory responses to board investigators.