IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT I. {Jaw a? m" Mitchell Edward Simone, M.D., Appellant-Appellant, No. USAF-1000 V. (REGULAR CALENDAR) State Medical Board of Ohio, Appellee-Appellee. JOURNAL ENTRY OF DISMISSAL Appellant, through counsel, having filed a motion to voluntarily dismiss this appeal, the same is approved and this appeal is hereby dismissed. Costs shall be assessed against appellant. 2% A. {7%Mw 9? .mw? 3% 1- - i3; {amtDEC. 29. 2006 ll:42AM LANE ALTON HORST NO 5679 2 IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO MITCHELL EDWARD M.O., Appellant, v. Case No. OBCVF-D10837 STATE MEDICAL BOARD OF OHIO, 3 Judge TERM BY: 1 moi APP LLANT MITCHELL EDWARD SIMONS NOTICE OF VOLUNTARY DISMISSAL Appellee. Pursuant to Civ. R. Appellant Mitchell Edward Simons, MD. voluntarily dismisses this administrative appeal. Respectfully submitted, LANE, ALTON 3: HORST, LLC inmate Jeff Uur lloo12107) 7th lo . 175 South Third Street Columbus, Ohio 43215 (614)228-6885 (Phone) (614) 228-0146 (Facsimile) iiuroa?lah?llaWLom 1'1 Counsel for Appellant, Inf-:7: Mitchell E. Simons, MD. a ?le: i'f .H Cm." .nli If"- E: '0 mini-Q {31m ?i .r 13:33 i ELL: :3 a: DEC. 29. 2006 LANE ALTON HORST NO. 5679 3 The undersigned hereby certi?es that a true and accurate copy of the foregoing was duly served. via facsimile and regular US. mail, postage prepaid. this 28?? day of December, 2006. upon the following: Barbara J. Pieifier, Esq. Assistant Attorney General Health and Human Services Section 30 East Broad Street. 26th Floor Columbus, Ohio 43215-3428 Attorney for Appelle State Medical Board of Ohio Ml .?uii a @0012107) 42703-1 DEC. 29. 2006 LANE ALTON HORST Ii: in THE COURT oF APPEALS oF FRANKLIN coUNTi/??tlio TENTH APPELLATE DISTRICT MITCHELL EDWARD SIMONS, M.D.. Appellant, v. STATE MEDICAL BOARD OF OHIO, Appellee. NO.5679 P.4 .. 3:335 arr-z; x. a" 15: Case No. 06AP E-1 0-1000 Accelerated Calendar (Appeal from the Court of Common Pleas, Franklin County, Case No. 060VF-010837 Judge APPELLAHNT MITCHELL EDWARD SIMONE, MOTION TO APPEAL Pursuant to App. R. 28, Appellant Mitchell Simons, MD. moves to voluntarily dismiss this appeal, as he has decided not to proceed further with this litigation. Respectfully submitted, LANE, ALTON 3x HORST, LLC TM Je?i?iy? Iduifcal/ (0012107) 7th Io r, 175 South Third Street Coiu bus, Ohio 43215 (614) 228-6885 (Phone) (614) 228-0146 (Facsimile) iiurca@lah4iaw.com Counsel for Appellant, Mitchell E. Simone. M.D. [f DEC. 29. 2006 LANE ALTON HORST NO. 5679 P. 5 CERTIFICATE OF The undersigned hereby certi?es that a true and accurate copy of the foregoing was duly served, via facsimile and regular US. mail, postage prepaid. this 28th day of December, 2006, upon the following: Barbara J. Pfeiffer, Esq. Assistant Attorney General Health and Human Services Section 30 East Broad Street, 26th Floor Columbus. Ohio 43215-3423 Attorney for Appellee State Medical Board of Ohio Je?d?Ul/iu/ce/ (0042107) 42703-1 i3": 353' THE COURT OF APPEALS OF OHIO {Elia TENTH APPELLATE DISTRICT 25" i Mitchell Edward Simone, M.D., Appellant-Appellant, v. No. State Medical Board of Ohio, (REGULAR CALENDAR) Appeilee-?Appeliee. JOURNAL ENTRY Appeilant?s November 13, 2006 motion for a stay of proceedings is denied. Judge William A. Kl?attf'PJ. 4; HEALTH Ea HUMAN DEC. 0-4 2006 SEWECES IN THE COURT OF APPEALS OF OHIO ill?? .. TENTH APPELLATE I glam-ltd. :??sl?tii-E} Mitchell Edward Simons, M.D., I Appellant~Appellant, v. N0. State Medical Board of Ohio, (REGULAR CALENDAR) Appel'ee"APPellee. Appellant?s Octob??xr' 4, {notion-for of did-decision of the State Medical Board of Ohio pending appeal is denied. I 1 Judge-2W lia'm'A': Klatt, 3- .. Judg? Brown IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO MITCHELL EDWARD SIMONS, M.D., .. .1, Ml.? Appellant, v. Case No. STATE MEDICAL BOARD OF OHIO, Judge Appellee. NOTICE OF APPEAL 30 =0 mag 30 Notice is hereby given that Appellant, Mitchell Edward Simone, M.D., hereby appeals to the Court of Appeals of Franklin County, Ohio, Tenth Appellate District, from the Decision and Entry entered in this action on the 18th day of September, 2006. A copy of the Decision and Entry is attached as Exhibit A. Respectfully submitted, LANE, ALTON HORST, LLC 00, Jeffrey/J. to? 1 ?(0012107) 7th F100 75 South Third Street Columbus, Ohio 43215 (614) 228-6885 (Phone) (614)228-0146 (Facsimile) 32;, iiurca?lah4lawcom Counsel for Appellant, Mitchell E. Simone, MD. 015:0 re ri- 100 9-002 - CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing was duly served, via regular US. mail, postage prepaid, this clay of October, 2006, upon the following: Barbara J. Pfeiffer, Esq. Assistant Attorney General Health and Human Services Section 30 East Broad Street, 26th Fioor Columbus, Ohio 43215-3428 Attorney for Appeite State Medical Board of Ohio ?ail MM JerryeWTAuEi-ca 0012107) 42703-1 A It in. $23 9002 DZ :88 . wanna a H?t?g IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO Mitchell Edward Simona, MD. Appellant, v. Case No. State Medical Board of Ohio, JUDGE Appellee. DECISION AND ENTRY DENYING MOTION TO FILED AUGUST 18, 2005 . 55%: are a. Rendered this day of September, 2006. {331? J. term I ?3 13$ This matter is before the court upon the motion of appellant to stay the ofi (9 the State Medical Board of Ohio pursuant to R.C. 119.12 pending appeal. The State Medical Board of Ohio (Board) filed- a memorandum contra. The court has considered all memoranda submitted. The Board?s Order, mailed August 8, 2006, requires that appellant obtain the Board?s prior approval prior to commencing the practice of medicine and surgery in Ohio. Further, the Board requires that a chaperone must be present when appellant has any personal contact with a female patient. The Board took disciplinary action against appellant pursuant to RC. following appellant?s execution of an agreed order with the Commonwealth of Kentucky Board of Medical Licensure requiring similar limitations for contact with female patients. Now, appellant moves for a stay of the Board?s Order, claiming that the permanent limitation creates a de facto revocation of appellant?s license and constitutes an ?unusual hardship? for the purposes of RC. 119.12. Appellant also claims that the de facto revocation will lead to its report to the National Practitioner Data Bank and that appellant will be terminated from reimbursements of insurance plans, HMOs, and PPOs. Therefore, appellant claims that a stay of the Board?s Order pending the appeal before this court is warranted at this time. The court disagrees. In order to obtain a suspension of an order under 119.12, the movant must demonstrate that he will suffer ?unusual hardship? if the stay is not granted. The Tenth District Court of Appeals discussed the following factors as considerations of whether it is appropriate to stay an administrative board?s order pending judicial review. Krihwan Pontiac-GMC Truck, Inc. v. GMC (2001), 141 Ohio App. 3d 777. Those factors are: (1) whether appellant has shown a strong or substantial likelihood or probability of success on the merits; (2) whether appellant has shown that it will suffer irreparable injury; (3) whether the issuance of a stay will cause harm to others, and (4) whether the public interest would be served by granting a stay. It is appellant?s position that, absent a stay, he will suffer unusual hardship, as he expects damage to his professional reputation and will be unable to earn an income during the appellate period. The court ?nds that foreseeable ?nancial hardship from the suspension of one?s license does not rise to the level of unusual hardship. See Kihwan Pontiac-GMC ruck, at 783 (noting that, ?virtually all license suspension or terminations involve some degree of hardship but only those involving ?unusual hardship? are candidates for a stay?). If appellant is entitled to vindication from the underlying Order, the administrative appeals process will evaluate the merits of his claims. Further, the court agrees with the Board that unusual hardship cannot be demonstrated where appellant has not sought approval from the Board to practice in Ohio and, accordingly, to date no request has been denied. The court agrees that the Board?s approval is a safeguard requirement to ensure that appellant has the requisite chaperone in place before appellant commences practicing medicine in Ohio. The court also notes that the Board claims that the agreed order in Kentucky has already been reported to the National Practitioner Data Bank and that any adverse consequences to appellant have already occurred. Upon review, the court does not ?nd appellant?s position well taken, as appellant has failed to Show any unusual hardship as is required by Ohio law. Accordingly, the court DENIES appellant?s motion to stay IT IS SO ORDERED. Jul' M. Judge, Copies to: Jeffrey J. Jurca, Esq. Counsel for Appellant Barbara Pfeiffer, Esq. Assistant Attorney General IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO MITCHELL EDWARD SIMONS, MD. 81 Sweetbriar Avenue Fort Thomas, Kentucky 41075 Appellant, 06CVF08 1083? v. Case No. I 2 STATE MEDICAL BOARD OF OHIO 1 Judge 3 77 South High Street, 17th Floor m2 Columbus, Ohio 43215?6108 Appellee 3 NOTICEJOF APPEAL f, Mitchell Edward Simons, M.D., hereby gives notice of his appeal, pursuant to RC. 119.12, of the Order of the. State Medical Board of Ohio, mailed on August 8, 2006, a copy of which is attached hereto. Appellant states that the Board?s Order is not based on reliable, probative, and substantial evidence, and was not issued in accordance with law. Respectfully submitted, LANE, ALTON HORSTC53 :72: :n Jeffll'jy ?Fatlr a 7th 0 ,17 South Third SFeet? 36;; Columbus, Ohio 43215 (614)228-6885 (Phone) 33* (614) 228-0146 (1) Counsel for Respondent. Mitchell E. Simons, M.D. CERTIFICATE OF SERVICE The undersigned hereby certi?es that a true and accurate copy _of the foregoing was duly sewed, via regular US. mail, postage prepaid, this day of August, 2006, upon the following: 42703-1 Barbara J. Pfeiffer, Esq. Assistant Attorney General Health and Human Services Section 30 East Broad Street, 26th Floor Columbus, Ohio 43215?3400 Facsimile No. 614?466-6090 Attorney for State of Ohio CM: oavoa ?wdlt?h 3mg 1' \Eif'i?i =11 :21 8 ?3th State Medical Board of Ohio 77 S. High St., 17th Floor 0 Columbus, OH 43215-6127 0 (614) 466-3934 I Website: July 12, 2006 Mitchell Edward Simons, MD. 81 Sweetbriar Ft. Thomas, KY 41075 Dear Doctor Simons: Please ?nd enclosed certi?ed copies of the Entry of Order; the Report and Recommendation of Sharon W. Murphy, Attorney Hearing Examiner, State Medical Board of Ohio; and an excerpt of draft Minutes of the State Medical Board, meeting in regular session on July 12, 2006, including motions approving and con?rming the Findings of Fact and Conclusions of the Hearing Examiner, and adopting an amended Order. Section 119.12, Ohio Revised Code, may authorize an appeal from this Order. Such an appeal must be taken to the Franklin County Court of Common Pleas. Such an appeal setting forth the Order appealed from and the grounds of the appeal must be commenced by the ?ling of an original Notice of Appeal with the State Medical Board of Ohio and a copy of the Notice of Appeal with the Franklin County Court of Common Pleas. Any such appeal must be ?led within ?fteen (15) days after the mailing of this notice and in accordance with the requirements of Section 119.12, Ohio Revised Code. THE STATE MEDICAL BOARD OF OHIO Lance A. Talmage, M.D. Secretary LAT: am Enclosures CERTIFIED MAIL NO. 7003 0500 0002 4329 8821 RETURN RECEIPT REQUESTED Cc: Jeffrey J. Jurca, Esq. CERTIFIED MAIL NO. 7003 0500 0002 4329 9996 RETURN RECEIPT REQUESTED ?ax/226 Hap CERTIFICATION I hereby certify that the attached copy of the Entry of Order of the State Medical Board of Ohio; Report and Recommendation of Sharon W. Murphy, State Medical Board Attorney Hearing Examiner; and excerpt of draft Minutes of the State Medical Board, meeting in regular session on July 12, 2006, including motions approving and con?rming the Findings of Fact and Conclusions of the Hearing Examiner, and adopting an amended Order; constitute a true and complete copy of the Findings and Order of the State Medical Board in the matter of Mitchell Edward Simons, M.D., as it appears in the Journal of the State Medical Board of Ohio. This certi?cation is made by authority of the State Medical Board of Ohio and in its behalf. Lance A. Talmage, MD. 0 Secretary (SEAL) Ju1112?006 Date BEFORE THE STATE MEDICAL BOARD OF OHIO IN THE MATTER OF MITCHELL EDWARD SIMONS, M.D. ENTRY OF ORDER This matter came on for consideration before the State Medical Board of Ohio on July 12, 2006. Upon the Report and Recommendation of Sharon W. Murphy, State Medical Board Attorney Hearing Examiner, designated in this Matter pursuant to RC. 4731.23, a true copy of which Report and Recommendation is attached hereto and incorporated herein, and upon the modi?cation, approval and con?rmation by vote of the Board on the above date, the following Order is hereby entered on the Journal of the State Medical Board of Ohio for the above date. It is hereby ORDERED that: A. Dr. Simons? certi?cate will be PERMANENTLY LIMITED and RESTRICTED as follows: 1. Dr. Simons shall not commence practice in Ohio without prior Board approval. 2. Dr. Simons shall have a chaperone present throughout any personal contact with a female patient in his professional of?ce or in any other clinical setting. a. Any chaperone utilized by Dr. Simons must be approved, in advance, by the Board or its staff Dr. Simons may submit and the Board or its staff may approve more than one chaperone to ful?ll this requirement. Dr. Simons shall be solely responsible for payment of the costs of such chaperone(s). b. Any chaperone utilized by Dr. Simons must agree in writing to the following: In the matter of Mitchell Edward Simons, MD. Page 2 i. The chaperone shall remain present and within direct eyesight and within clear hearing distance of Dr. Simons and the patient throughout the entire period Dr. Simons is with a female patient; ii. The chaperone shall accurately record the chaperone?s presence, or absence, for the entire duration of such patient interaction in the patient?s chart, or the patient record maintained by that clinical setting; The chaperone shall immediately notify the Board of any violation of the chaperone requirement by Dr. Simons. 0. Upon request Dr. Simons shall immediately make available any requested patient charts for female patients and/or documentation about patient contacts outside of the of?ce. Dr. Simons shall also make available, upon request, the chaperone(s) for interview by Board agents regarding Dr. Sirnons? compliance with these conditions. d. If Dr. Simons is called upon to see a female patient at a hospital or an outpatient surgical center, he may treat that patient so long as a professional member of the hospital or outpatient surgical center staff is present and is able to hear and see all interactions between Dr. Simons and the patient, throughout Dr. Simons? entire interaction with the patient during the treatment. In such circumstances, Dr. Simons shall have the staff member note his or her presence in the patient?s chart. Dr. Simons shall maintain a log for all such circumstances, which shall contain: the patient?s name, the date of treatment, the reason for treatment, and the name and signature of the staff member attending. Dr. Simons may utilize a computer generated report from the hospital as the required log, so long as all necessary information is contained within the computer printout. Upon request of the Board, Dr. Simons shall make this log and any patient records available for review. Dr. Simons shall also take any steps necessary to permit, arrange or assist the Board?s agents to be able to interview the applicable hospital staff members, upon request. 3. Dr. Simons shall not have sexual contact with any patient. Within thirty days of the effective date of this Order, or as otherwise determined by the Board, Dr. Simons shall provide a copy of this Order to all employers or entities with which he is under contract to provide health care services or is receiving training; and the Chief of Staff at each hospital where he has privileges or appointments. Further, Dr. Simons shall provide a copy of this Order to all employers or entities with which he contracts to provide health care services, or applies for or receives training, and the Chief of Staff at each hospital where he applies for or obtains privileges or appointments. In the matter of Mitchell Edward Simons, MD. Page 3 Further, Dr. Simons shall provide this Board with a copy of the return receipt as proof of noti?cation within thirty days of receiving that return receipt, unless otherwise determined by the Board. Within thirty days of the effective date of this Order, or as otherwise determined by the Board, Dr. Simons shall provide a copy of this Order by certi?ed mail, return receipt requested, to the proper licensing authority of any state or jurisdiction in which he currently holds any professional license. Dr. Simons shall also provide a copy of this Order by certi?ed mail, return receipt requested, at time of application to the proper licensing authority of any state in which he applies for any professional license or reinstatement or restoration or restoration of any professional license. Further, Dr. Simons shall provide this Board with a copy of the return receipt as proof of noti?cation within thirty days of receiving that return receipt, unless otherwise determined by the Board. This Order shall become effective immediately upon mailing of noti?cation of approval by the Board. Lance A. Talmage, M.D. (SEAL) Secretary Jul?Ll 2L2006 Date STATE MEDICAL BOARD OF OHIO I?llb HAY 23 A l0 ?8 REPORT AND RECOMMENDATION IN THE MATTER OF MITCHELL EDWARD SIMONS, MD. The Matter of Mitchell Edward Simons, M.D., was heard by Sharon W. Murphy, Esq., Hearing Examiner for the State Medical Board of Ohio, on August 25 and October 27, 2005. INTRODUCTION 1. Basis for Hearing A. By letter dated May 18, 2005, the State Medical Board of Ohio [Board] noti?ed Mitchell Edward Simons, M.D., that it had proposed to take disciplinary action against his certi?cate to practice medicine and surgery in Ohio. The Board?s action was based on allegations that the Commonwealth of Kentucky Board of Medical Licensure [Kentucky Board] had ?led an Agreed Order setting terms and conditions under which Dr. Simons could practice medicine in Kentucky. The Board alleged that the Kentucky Board?s action constituted of the following actions taken by the agency responsible for regulating the practice of medicine and surgery in another jurisdiction, for any reason other than the nonpayment of fees: the limitation, revocation, or suspension of an individual?s license to practice; acceptance of an individual?s license surrender; denial of a license; refusal to renew or reinstate a license; imposition of probation; or issuance of an order of censure or other reprimand,? as that clause is used in Section 473] Ohio Revised Code.? Accordingly, the Board advised Dr. Simons of his right to request a hearing in this matter. (State?s Exhibit 1A) B. On June 10, 2005, Jeffrey J. Jurca, Esq, submitted a letter requesting a hearing on behalf of Dr. Simons. (State?s Exhibit 1B) 11. Appearances A. On behalf of the State of Ohio: Jim Petro, Attorney General, by Barbara J. Pfeiffer, Assistant Attorney General. B. On behalf of the Respondent: Jeffrey J. Jurca, Esq. EVIDENCE EXAMINED I. Testimony Heard J. Fox DeMoisey, Esq. Report and Recommendation In the Matter of Mitchell Edward Simons, M.D. Page 2 II. Exhibits Examined A. B. Presented by the State 1. State’s Exhibits 1A through 1F: Procedural exhibits. [State’s Exhibit 1A was paginated by the Hearing Examiner post hearing; moreover, pages 18 through 25 were excluded pursuant to an evidentiary ruling and proffered separately. See Hearing Transcript at 113-116; and Proffered Materials, below.] 2. State’s Exhibit 2: Certification by the Board that Dr. Simons’ certificate to practice in Ohio, issued in 1984, was current as of August 19, 2005. 3. State’s Exhibit 3: Certified copy of documents regarding Dr. Simons on file with the Kentucky Board of Medical Licensure. [Pages 15 through 22 were excluded pursuant to an evidentiary ruling and proffered separately. See Hearing Transcript at 113-116; and Proffered Materials, below.] 4. State’s Exhibit 4: Ohio State Medical Board’s Memorandum in Response to Respondent’s Oral Request to Postpone Issuance of a Report and Recommendation Until Final Disposition of Respondent’s Petition for Declaritory (SIC) Judgment Pending in the Commonwealth of Kentucky. 5. State’s Exhibit 5: Closing Brief of Ohio State Medical Board. Presented by the Respondent 1. Respondent’s Exhibit A: August 4, 2005, affidavit of Dr. Simons. 2. Respondent’s Exhibit B: Copy of the Board’s Disciplinary Guidelines, effective April 2002. 3. Respondent’s Exhibit C: Copy of Kerr v. Kentucky State Board of Registration (Ky. App. 1990), 797 S.W.2d 714, and Kentucky statutes. 4. Respondent’s Exhibit D: Copy of “Petition for Declaritory Judgment” [sic] in Simons v. Kentucky Board of Medical Licensure, filed in Jefferson Circuit Court, Kentucky, on October 26, 2005. 5. Respondent’s Exhibit E: Copy of Ky. Rev. Stat. § 311.597. 6. Respondent’s Exhibit F: Closing Brief of Respondent, Mitchell Edward Simons, M.D. Report and Recommendation In the Matter of Mitchell Edward Simons, M.D. Page 3 C. Presented by the Hearing Examiner, sua sponte Board Exhibit A: January 12, 2006, Entry extending the date for filing written closing arguments until February 15, 2006. PROFFERED MATERIALS Proffer A: The portions of State’s Exhibits 1A and 3 which contain the unproven allegations in the Administrative Complaint issued by the Commonwealth of Kentucky Board of Medical Licensure against Dr. Simons. (See Hearing Transcript at 113-116) PROCEDURAL MATTERS 1. At the close of the hearing, the parties agreed to submit written closing arguments. Pursuant to a schedule set forth by the Hearing Examiner, the final written argument was filed on February 15, 2006. The hearing record closed at that time. (See Hearing Transcript at 118-119; Board Exhibit A) 2. At hearing, Dr. Simons requested that the Hearing Examiner defer from filing this Report and Recommendation until pending matters in the Commonwealth of Kentucky have been resolved. The State objected to this request. The Hearing Examiner sustains the State’s objection. (See Hearing Transcript at 116-118; Respondent’s Exhibit F; State’s Exhibit 4) SUMMARY OF THE EVIDENCE All exhibits and transcripts of testimony, even if not specifically mentioned, were thoroughly reviewed and considered by the Hearing Examiner prior to preparing this Report and Recommendation. 1. On November 3, 2003, the Commonwealth of Kentucky Board of Medical Licensure [Kentucky Board] filed an Administrative Complaint against Mitchell E. Simons, M.D. (State’s Exhibit [St. Ex.] 3 at 14, 27) On January 20, 2005, Dr. Simons entered into an Agreed Order with the Kentucky Board. (St. Ex. 3 at 2-13) The Agreed Order set forth stipulated facts, including the following: 14. On September 26, 2001, a Complaint and Jury Demand was filed in the Court of Common Pleas in Hamilton County, Ohio against the licensee [Dr. Simons]. The Complaint was filed on behalf of a former patient and alleged that the licensee inappropriately treated the patient and subjected the patient to sexual harassment. Report and Recommendation In the Matter of Mitchell Edward Simons, M.D. Page 4 15. On December 19, 2001, the licensee signed and submitted his 2002 Application for Renewal of Kentucky Medical/Osteopathic License for Year 2002. The licensee answered “NO” in response to question twenty-one (21): “Since you last registered * * * are any malpractice or other civil actions against your medical practice presently pending in any court?” (St. Ex. 3 at 8) 2. In the Agreed Order, Dr. Simons also stipulated to facts surrounding the patients’ complaints, including the following: 2. The licensee’s medical specialty is Pain Management. 3. On December 27, 2002, the Board received a letter from Lisa Hinkle, an attorney, reporting allegations of inappropriate conduct by the licensee towards a patient. 4. Patient A was interviewed and reports that she injured her shoulder and hip * * *. Two and a half years ago (2000), she started seeing the licensee for pain management. * * * Each visit Patient A was given a gown and asked to disrobe from the waist up, leaving her bra on. During one visit she disrobed as instructed * * *. During the examination, Patient A alleged that the licensee touched her breast. Patient A alleges that such an examination occurred on approximately three (3) more occasions. On another occasion while examining her for a hip injury, the licensee began the exam by having her walk toward him while he was seated on a stool. When she reached him, he turned her around, so that he was behind her. Still seated, he felt her lower hip (buttocks). He turned her facing him, commenting, and touching her tattoo, which is located in the center of her abdomen. During this visit, Patient A alleged that the licensee touched her breast and kissed her. 5. Patient B alleged inappropriate contact by the licensee. * * * Although Patient B was primarily treated by other physicians in the office, she reports that within a year she was treated by the licensee three times. During her first visit, Patient B alleged that the licensee touched her breast and inquired about her breast implants. * * * 6. Nancee Burlington, R.N., stated that she has worked with the licensee for approximately six weeks. She has received no complaints from female patients regarding inappropriate touching. Ms. Burlington stated that the licensee and his Physician Assistant, Tom Feeny, do not use chaperones during female exams. If a female patient is new, she is asked to disrobe to her underwear and given a gown, but during follow up visits they are seldom asked to disrobe. Ms. Burlington stated that she was amazed that nothing Report and Recommendation In the Matter of Mitchell Edward Simons, M.D. Page 5 has been said regarding the use of chaperones, because her past employers required them. She did not see how inappropriate touching could occur, because the patient schedule is very heavy, not allowing time for something of that nature, and the licensee does not engage in small talk. * * * 10. * * * [T]he licensee advised that he does not use chaperones. The licensee could not think of a reason he would need to examine breasts. He might need to examine in close proximity to the breasts due to the muscle structure and occasionally need to examine the hip area. The licensee denies touching any patient inappropriately. (St. Ex. 3 at 2-5) The Agreed Order further states that Dr. Simons’ staff, including his medical assistant, physician assistant, and electro-diagnostic technologist, reported that they had received no complaints regarding inappropriate touching by Dr. Simons. (St. Ex. 3 at 4) The Stipulated Facts in the Agreed Order also include Dr. Simons’ lengthy descriptions of his treatment of Patients A and B. Moreover, Dr. Simons denied the allegations against him made by Patients A and B, including the following: Dr. Simons denied that he had instructed Patient A to take Valium before office visits, that he had instructed his staff to give certain patients the “4:30 appointments,” and that he had had inappropriate contact with Patient A. In addition, Dr. Simons asserted that he had examined Patient B’s breast because she had expressed concern over a possible rupture of a breast implant. (St. Ex. 3 at 5-7) 3. The Agreed Order quoted several passages from the American Medical Association’s Code of Medical Ethics on Sexual Misconduct in the Practice of Medicine. The quotation of Opinion 8.21 included the following: “From the standpoint of ethics and prudence, the protocol of having chaperones available on a consistent basis for patient examinations is recommended.” (St. Ex. 3 at 7) 4. The Agreed Order also set forth Stipulated Conclusions of Law, including the following: While the licensee denies that he violated any provision of the Kentucky Medical Practice Act, the parties agree that that [sic] the Hearing Panel could conclude from the evidence presented at an evidentiary hearing that the licensee has engaged in conduct which violates the relevant provisions of the Kentucky Medical Practice Act, KRS 311.595(9) and/or KRS 311.597. Accordingly, the parties agree there are legal grounds for the parties to enter into this Agreed Order. (St. Ex. 3 at 8) 5. The Agreed Order states that the “license to practice medicine held by Mitchell E. Simons, M.D., is subject to the terms and conditions of this AGREED ORDER for an Report and Recommendation In the Matter of Mitchell Edward Simons, M.D. Page 6 indefinite term, or until further order of the Board.” (St. Ex. 3 at 9) The Agreed Order further states that Dr. Simons “may continue with the full active practice of medicine” in Kentucky subject to the following “TERMS AND CONDITIONS”: a. The licensee SHALL have a chaperon present throughout any personal contact with a female patient in his professional office or in any other clinical setting. b. Any chaperon utilized by the licensee must be approved, in advance, by the Board or its staff and must agree in writing to 1) remain present and within direct eyesight and within clear hearing distance of the licensee and the patient throughout the entire period the licensee is with a female patient; 2) accurately record the chaperon’s presence, or absence, for the entire duration of such patient interaction in the patient’s chart, or the patient record maintained by that clinical setting; 3) immediately notify the designated contact person at the Board’s offices to report any violation of the chaperon requirement by the licensee. The licensee may submit and the Board or its agents may approve more than one chaperon to fulfill this requirement. The licensee shall be solely responsible for payment of the costs of such chaperon(s). c. Upon request, the licensee SHALL immediately make available any requested patient charts for female patients and/or documentation about patient contacts outside of the office. The licensee shall also make available, upon request, the chaperon(s) for interview by Board agents regarding his compliance with that condition. d. If the licensee is called upon to see a female patient at the hospital or an outpatient surgical center, he may treat that patient so long as a professional member of the hospital’s staff is present and is able to hear and see all interactions between the licensee and the patient, throughout the physician’s entire interaction with the patient during the treatment. In such circumstances, the licensee will have the staff member note their presence in the patient’s chart and he shall maintain a “log” for all such circumstances, which shall contain: the patient’s name, date of treatment, reason for treatment in the hospital, and name of staff member attending. The licensee may utilize a computer generated report from the hospital as the required “log,” so long as all necessary information is contained within the computer printout. Upon request of the Board’s agent(s), the licensee shall make this log and any patient record(s) available for review. The licensee shall also take any step(s) necessary to permit, arrange or assist the Board’s agent(s) to be able to interview the applicable hospital staff member(s), upon request. e. The licensee SHALL NOT have sexual contact with any patient. Report and Recommendation In the Matter of Mitchell Edward Simons, M.D. Page 7 f. The licensee SHALL complete the “Maintaining Proper Boundaries” course through the Center for Professional Health at Vanderbilt University Medical Center in Nashville, Tennessee within six (6) months from entry of this Agreed Order. g. The licensee SHALL provide written proof that he has successfully completed the “Maintaining Proper Boundaries” course to the Board’s agent assigned to supervise his probation and the Board’s General Counsel or Assistant General Counsel. (St. Ex. 3 at 9) 6. The Agreed Order provides that, should Dr. Simons violate any term of the Agreed Order, that violation may serve as basis for additional disciplinary action * * *.” (St. Ex. 3 at 11)(emphasis added) 7. On August 24, 2005, Dr. Simons stated in an affidavit that he had completed the “Maintaining Proper Boundaries” course described in the Agreed Order. He further stated that he has followed and will continue to follow all the terms and conditions set forth in the Agreed Order in his practice in Ohio and Kentucky.1 (Respondent’s Exhibit [Resp. Ex.] A) LEGAL ARGUMENT 1. 1 At hearing, Dr. Simons argued that the Board may not discipline his certificate based on the Kentucky Board action because the Kentucky Board action was illegal and unconstitutional. As basis for this argument, Dr. Simons advised that, on October 25, 2005, he had filed a Petition for Declaritory Judgment [sic] in the Jefferson Circuit Court in Kentucky. In this petition, Dr. Simons alleged that, in June 2005, the Kentucky Board had filed an Adverse Action Report with the National Practitioner Data Bank [NPDB], reporting Dr. Simons’ Agreed Order as a “final disciplinary action.” Dr. Simons provided a copy of his dispute to the NPDB regarding the Kentucky Board’s report, along with a copy of the Kentucky Board’s policy for reporting to the NPDB. Dr. Simons further alleged that the Kentucky Board had declined to grant his request to withdraw its designation of the matter to the NPDB. Dr. Simons claimed, among other things, that the Kentucky Board’s policy for reporting its orders to the NPDB is illegal and unconstitutional. (Resp. Ex. D and attached exhibits; see, also, Resp. Exs. B-C, E, F; St. Ex. 5) During the hearing on October 27, 2005, Dr. Simons’ counsel acknowledged that, when practicing in Ohio, Dr. Simons’ compliance with the terms and conditions of the Agreed Order is voluntary and not pursuant to any order. See Hearing Transcript at 117-118. Report and Recommendation In the Matter of Mitchell Edward Simons, M.D. Page 8 In addition, J. Fox DeMoisey2 testified at hearing on behalf of Dr. Simons. Mr. DeMoisey testified that he had been Dr. Simons’ attorney during the proceedings in Kentucky. Mr. DeMoisey further testified regarding Kentucky law and the Kentucky Board. He stated that it had been his understanding that Dr. Simons’ Agreed Order would not be deemed by the Kentucky Board to be a “disciplinary action” reportable to the NPDB. Although Mr. DeMoisey acknowledged that no agreement to that effect appears in the Agreed Order, he argued that the language of the Agreed Order legally requires that it must be “something other than a final disciplinary action in Kentucky.” (Tr. at 25-111; Resp. Ex. C; see also, St. Ex. 5) The Hearing Examiner finds this argument unpersuasive, especially since the Agreed Order provides that, “should Dr. Simons violate any term of the Agreed Order, that violation may serve as basis for additional disciplinary action * * *.” (Emphasis added.) 2. Dr. Simons also argued that the Kentucky Board’s action against him is not actionable by this Board because Section 4731.22(B)(22), Ohio Revised Code, provides a list of penalties that are actionable if imposed by another state. More specifically, that section provides that the Board may act based on the action of another state only when the other state imposes one or more of the following penalties: the limitation, revocation, or suspension of an individual’s license to practice; acceptance of an individual’s license surrender; denial of a license; refusal to renew or reinstate a license; imposition of probation; or issuance of an order of censure or other reprimand. R.C. 4731.22(B)(22). Dr. Simons acknowledged that the statute includes limitations, but argued that the penalties imposed by the Kentucky Board were conditions rather than limitations. Therefore, he reasoned, the action of the Kentucky Board is not actionable under Section 4731.22(B)(22), Ohio Revised Code, because the penalties imposed by the Kentucky Board are not included in the actionable penalties listed in that statute. (Tr. at 29-111; Resp. Exs. C, F; see also, St. Ex. 5) This argument is without merit. The Agreed Order imposes requirements on Dr. Simons that limit and restrict him as a physician, in that Kentucky law does not require all physicians to have a chaperone present during contact with female patients. Pursuant to the Agreed Order, if Dr. Simons does not obtain a chaperone, he is restricted from treating female patients in Kentucky. Moreover, Kentucky law does not require that all physicians complete a course in “Maintaining Proper Boundaries.” Thus, Dr. Simons is practicing under limitations that do not apply to other physicians in Kentucky, regardless of whether the Agreed Order explicitly designated the requirement as a “restriction” or “limitation.” 2 In his August 24, 2005, affidavit, Dr. Simons stated that he had been represented before the Kentucky Board by his attorney, J. Fox DeMoisey. Moreover, Dr. Simons authorized Mr. DeMoisey to testify on his behalf before the Ohio Board within narrow parameters, as follows: “I hereby authorize attorney DeMoisey to testify for the limited purpose of discussing his legal analysis of the Agreed Order dated February 17, 2005.” (Resp. Ex. A) Report and Recommendation In the Matter of Mitchell Edward Simons, M.D. Page 9 3. Finally, Dr. Simons argued that, because the Kentucky Board’s Agreed Order contains neither findings that the patients’ allegations are true nor admissions of guilt by Dr. Simons, the Board cannot take action against him based on the Kentucky Board’s Agreed Order. However, Section 4731.22(B)(22), Ohio Revised Code, does not require that the action of another board specify findings or admissions of guilt. The statute merely requires that, for the Board to take action against a licensee based on the action of another state’s agency, the other state shall have acted “for any reason other than the nonpayment of fees.” Therefore, the Board may take action based on the Kentucky Board action and may consider the penalties imposed in the Agreed Order. Nevertheless, because the patients’ allegations were not found to be true in the Kentucky Board Agreed Order, they are not considered to be factual in this Report and Recommendation. FINDINGS OF FACT On February 17, 2005, the Commonwealth of Kentucky Board of Medical Licensure [Kentucky Board] filed an Agreed Order regarding Mitchell Edward Simons, M.D. In that Agreed Order, the Kentucky Board ordered, and Dr. Simons agreed, that his license to practice medicine in the Commonwealth of Kentucky would be subject to certain “terms and conditions” as set forth in the Agreed Order. Among these conditions, Dr. Simons must have a chaperone present throughout any personal contact with female patients in his professional office or in any other clinical setting, and the chaperone must be approved in advance by the Kentucky Board or its staff. Dr. Simons further agreed to complete the “Maintaining Proper Boundaries” course through the Center for Professional Health at Vanderbilt University Medical Center in Nashville, Tennessee. CONCLUSIONS OF LAW The action taken by the Commonwealth of Kentucky Board of Medical Licensure against Mitchell Edward Simons, M.D., as set forth in the Findings of Fact, constitutes one of “the following actions taken by the agency responsible for regulating the practice of medicine and surgery * * * in another jurisdiction, for any reason other than the nonpayment of fees: the limitation, revocation, or suspension of an individual’s license to practice; acceptance of an individual’s license surrender; denial of a license; refusal to renew or reinstate a license; imposition of probation; or issuance of an order of censure or other reprimand,” as that clause is used in Section 4731.22(B)(22), Ohio Revised Code. PROPOSED ORDER It is hereby ORDERED that: A. The certificate of Mitchell Edward Simons, M.D., to practice medicine and surgery in the State of Ohio shall be SUSPENDED for thirty days. Report and Recommendation In the Matter of Mitchell Edward Simons, M.D. Page 10 B. Upon reinstatement, Dr. Simons’ certificate will be PERMANENTLY LIMITED and RESTRICTED as follows: 1. Dr. Simons shall not commence practice in Ohio without prior Board approval. 2. Dr. Simons shall have a chaperone present throughout any personal contact with a female patient in his professional office or in any other clinical setting. a. Any chaperone utilized by Dr. Simons must be approved, in advance, by the Board or its staff. Dr. Simons may submit and the Board or its staff may approve more than one chaperone to fulfill this requirement. Dr. Simons shall be solely responsible for payment of the costs of such chaperone(s). b. Any chaperone utilized by Dr. Simons must agree in writing to the following: i. The chaperone shall remain present and within direct eyesight and within clear hearing distance of Dr. Simons and the patient throughout the entire period Dr. Simons is with a female patient; ii. The chaperone shall accurately record the chaperone’s presence, or absence, for the entire duration of such patient interaction in the patient’s chart, or the patient record maintained by that clinical setting; iii. The chaperone shall immediately notify the Board of any violation of the chaperone requirement by Dr. Simons. c. Upon request Dr. Simons shall immediately make available any requested patient charts for female patients and/or documentation about patient contacts outside of the office. Dr. Simons shall also make available, upon request, the chaperone(s) for interview by Board agents regarding Dr. Simons’ compliance with these conditions. d. If Dr. Simons is called upon to see a female patient at a hospital or an outpatient surgical center, he may treat that patient so long as a professional member of the hospital or outpatient surgical center staff is present and is able to hear and see all interactions between Dr. Simons and the patient, throughout Dr. Simons’ entire interaction with the patient during the treatment. In such circumstances, Dr. Simons shall have the staff member note his or her presence in the patient’s chart. Dr. Simons shall maintain a log for all such circumstances, which shall contain: the patient’s name, the date of treatment, the reason for treatment, and the name and signature of the staff member attending. Dr. Simons may utilize a computer generated report from the hospital as the required log, so long as all necessary information is contained within the computer printout. Upon request of the Board, Dr. Simons shall Report and Recommendation In the Matter of Mitchell Edward Simons, MD. Page 1 1 make this log and any patient records available for review. Dr. Simons shall also take any steps necessary to permit, arrange or assist the Board?s agents to be able to interview the applicable hospital staff members, upon request. 3. Dr. Simons shall not have sexual contact with any patient. Within thirty days of the effective date of this Order, or as otherwise determined by the Board, Dr. Simons shall provide a copy of this Order to all employers or entities with which he is under contract to provide health care services or is receiving training; and the Chief of Staff at each hospital where he has privileges or appointments. Further, Dr. Simons shall provide a copy of this Order to all employers or entities with which he contracts to provide health care services, or applies for or receives training, and the Chief of Staff at each hospital where he applies for or obtains privileges or appointments. Further, Dr. Simons shall provide this Board with a copy of the return receipt as proof of noti?cation within thirty days of receiving that return receipt, unless otherwise determined by the Board. Within thirty days of the effective date of this Order, or as otherwise determined by the Board, Dr. Simons shall provide a copy of this Order by certi?ed mail, return receipt requested, to the proper licensing authority of any state or jurisdiction in which he currently holds any professional license. Dr. Simons shall also provide a copy of this Order by certi?ed mail, return receipt requested, at time of application to the proper licensing authority of any state in which he applies for any professional license or reinstatement or restoration or restoration of any professional license. Further, Dr. Simons shall provide this. Board with a copy of the return receipt as proof of noti?cation within thirty days of receiving that return receipt, unless otherwise determined by the Board. This Order shall become effective immediately upon mailing of notification of approval by the Board. mM/w/ aron W. Murphy, Esq. Hearing Examiner State Medical Board of Ohio 77 S. High St., 17th Floor 0 Columbus, OH 43215~6127 I (614) 466-3934 0 Website: wwmedohiogov EXCERPT FROM THE DRAFT MINUTES OF JULY 12,1)06 REPORTS AND RECOMMENDATIONS Dr. Robbins announced that the Board would now consider the ?ndings and orders appearing on the Board's agenda. He asked whether each member of the Board had received, read, and considered the hearing records, the proposed ?ndings, conclusions, and orders, and any objections ?led in the matters of: Douglas Paul Bosack, John Hanagan, Mitchell Edward Simons, and Frank Murray Strasek, D.P.M. A roll call was taken: ROLL CALL: Mr. Albert - Dr. Egner - Dr. Talmage Dr. Varyani - Dr. Kumar Mr. Browning - Dr. Davidson - Dr. Madia - Dr. Steinbergh - Dr. Robbins - Dr. Robbins asked whether each member of the Board understands that the disciplinary guidelines do not limit any sanction to be imposed, and that the range of sanctions available in each matter runs from dismissal to permanent revocation. A roll call was taken: ROLL CALL: Mr. Albert - Dr. Egner Dr. Talmage - Dr. Varyani - Dr. Kumar - Mr. Browning - Dr. Davidson - Dr. Madia - Dr. Steinbergh Dr. Robbins - Dr. Buchan returned to the room at this time. EXCERPT FROM THE DRAFT MINUTES OF JULY 12, 2006 Page 2 . IN THE MATTER OF MITCHELL EDWARD SIMONS, MD. Dr. Robbins asked Dr. Buchan Whether he had received, read, and considered the hearing records, the proposed ?ndings, conclusions, and orders, and any objections ?led in the matters of: Douglas Paul Bosack, John Hanagan, Mitchell Edward Simons, and Frank Murray Strasek, D.P.M. Dr. Buchan replied that he had. Dr. Robbins asked Dr. Buchan whether he understands that the disciplinary guidelines do not limit any sanction to be imposed, and that the range of sanctions available in each matter runs from dismissal to permanent revocation. Dr. Buchan stated that he does understand. Dr. Robbins noted that, in accordance with the provision in Section Revised Code, specifying that no member of the Board who supervises the investigation of a case shall participate in further adjudication of the case, the Secretary and Supervising Member must abstain from further participation in the adjudication of these matters. In the matters before the Board today, Dr. Talmage served as Secretary and Mr. Albert served as Supervising Member. Dr. Robbins stated that, if there were no objections, the Chair would dispense with the reading of the proposed ?ndings of fact, conclusions and orders in the above matters. No objections were voiced by Board members present. The original Reports and Recommendations shall be maintained in the exhibits section of this JournalMITCHELL EDWARD SIMONS, MD. Dr. Robbins directed the Board?s attention to the matter of Mitchell Edward Simons, M.D. He advised that objections were ?led to Hearing Examiner Murphy?s Report and Recommendation and were previously distributed to Board members. Dr. Robbins continued that a motion to deny Dr. Simons? defacto motion to reopen the hearing record and to exclude materials included in Dr. Simons? objections was presented by the Of?ce of the Attorney General. He asked for a motion to grant or overrule Ms. Pfeiffer?s motion. MR. BROWNING MOVED TO GRANT MS. MOTION TO EXCLUDE THE MATERIALS FROM THE HEARING RECORD. DR. ST EINBERGH SECONDED THE MOTION. A vote was taken: Vote: Mr. Albert abstain Dr. Egner - Dr. Varyani Dr. Buchan Dr. Kumar EXCERPT FROM THE DRAFT MINUTES OF JULY 12, 2006 Page 3 IN THE MATTER OF MITCHELL EDWARD SIMONS, M.D. Mr. Browning - Dr. Davidson - Dr. Madia - Dr. Steinbergh - The motion carried. Dr. Robbins stated that Ms. Pfeiffer?s motion is granted and the materials will be excluded. Dr. Robbins advised that a request to address the Board has been timely ?led on behalf of Dr. Simons. Five minutes would be allowed for that address. Dr. Simons did not appear before the Board. His attorney, Jeffrey J. Jurca, addressed the Board on Dr. Simons? behalf. Mr. urca thanked the Board for the opportunity to address it, and for deferring this matter for one month to accommodate his schedule. Mr. Jurca stated that this case involves, primarily, a legal argument that has been addressed at some length throughout the transcript and in his objections. Dr. Simons? position is that the Agreed Order in Kentucky does not constitute a limitation, revocation or suspension of that license that would allow the triggering of ?473 Ohio Revised Code. Their position is that the appropriate action by this Board would be to dismiss the charges in Ohio. Mr. Jurca stated that he?s briefed that at some length. Mr. urea stated that the other part of their objections, without waiving the legal argument that?s been briefed, relates to the proposed Report and Recommendation to the extent that it actually includes a suspension of Dr. Simons? Ohio license. Mr. Jurca stated that it would appear that in the absence of any ?nding of wrongdoing by either Kentucky or Ohio, or any admission of wrongdoing by Dr. Simons, the Order, if adopted, would punish him in the absence of any misconduct. Mr. urca stated that they think that result would be unfair. Mr. Jurca noted that the conditions set forth in both the Kentucky Agreed Order and repeated in the Report andRecommendation are presumably designed to protect the public and, of course, would protect Dr. Simons as well. To add a suspension of his Ohio license would seem unfair, given the fact that there?s simply no ?nding of any misconduct on his part. Mr. Jurca stated that, for those reasons, they object to the Report and Recommendation, as drafted; they urge the Board to dismiss the charges or, in the alternative and without waiving that argument, remove the suspension provisions. Mr. urca stated that he would respond to any questions if Board members had any. EXCERPT FROM THE DRAFT MINUTES OF JULY 12, 2006 Page 4 IN THE MATTER OF MITCHELL EDWARD SIMONS, MD. Dr. Robbins asked Whether the Assistant Attorney General Wished to respond. Ms. Pfeiffer stated that Dr. Simons agreed in the Kentucky Order to certain ?limitations? on his license, the gist of which require him to have a chaperone present throughout all personal contact with a female patient in his of?ce or in the hospital. He also had to take and complete the ?Maintaining Proper Boundaries? course. Ms. Pfeiffer stated that this Board is allowed to take disciplinary action against Dr. Simons? Ohio license if the Board ?nds that his Kentucky license has been limited, revoked or suspended. The question in this case is whether or not the Kentucky license has been limited. Ms. Pfeiffer stated that the answer is pretty simple, and it?s ?yes.? Ms. Pfeiffer stated that Rule of the Board?s administrative rules have de?ned the term, ?limitation,? as follows: ?Limitation? means to preclude the certi?cate holder from engaging in a particular conduct or activity, to impose conditions on the manner in which that conduct or activity may be performed, or to require the certi?cate holder to abide by speci?c conditions in order to continue practicing medicine. A limitation shall be either temporary or permanent. Ms. Pfeiffer stated that Dr. Simons had conditions on his Kentucky license. He had to have a chaperone present for female patients. Ms. Pfeiffer stated that this allows the Ohio Board to take disciplinary action. Ms. Pfeiffer noted that Ms. Murphy, in her Report and Recommendation, pointed out that because the patient?s allegations in the Kentucky Board action were neither admitted to, nor was there a factual ?nding of the truth of those admissions, they are not to be considered factual for purposes of this Report and Recommendation. Ms. Pfeiffer stated that she would agree with Mr. Jurca. The Board is in a position where it must decide what, if any, disciplinary action to take against the Ohio license, based simply on the fact that Kentucky has imposed the limitations it has imposed upon his license in Kentucky. DR. STEINBERGH MOVED TO APPROVE AND CONFIRM MS. FINDINGS OF FACT, CONCLUSIONS, AND PROPOSED ORDER IN THE MATTER OF MITCHELL EDWARD SIMONS, M.D. DR. KUMAR SECONDED THE MOTION. Dr. Robbins stated that he would now entertain discussion in the above matter. Dr. Steinbergh stated that she does agree that Dr. Simons? license was limited in Kentucky. The Kentucky Board put stipulations on his ability to practice and imposed requirements on him. The Proposed Order, disregarding the suspension upon reinstatement of the license, is consistent with the Kentucky Board agreement. The Board does need to make a decision as to whether or not suspension is apprOpriate in this case. Dr. Steinbergh stated that she thinks that the Board did have the responsibility to bring this matter to hearing and to make a decision, based upon the fact that Kentucky did limit his license through an agreement with the doctor. Dr. Steinbergh commented that she?s up in the air about the suspension, but she absolutely believes that the Proposed Order itself, and the Report and Recommendation, is very consistent with the ?nding that his license was limited. She does agree with the Proposed Order in terms of the EXCERPT FROM THE DRAFT MINUTES OF JULY 12, 2006 Page 5 IN THE MATTER OF MITCHELL EDWARD SIMONS, M.D. reinstatement stipulations. Whether or not the Board stays the proposed suspension is up for discussion. Dr. Buchan stated that his sense was that Dr. Simons? license was limited, and added that he doesn?t have any question about that, and the Board had every right to respond to the Kentucky agreement. He also felt that the Kentucky Order on its face was reasonable. Dr. Buchan stated that he?s not too interested in suspending Dr. Simons? license, based on what he sees. He?s more interested in bootstrapping the Kentucky Order. Dr. Kumar stated that, pertaining to whether or not Dr. Simon?s Kentucky license was restricted or limited, there?s no question in his mind, and the evidence is very clear, that it was limited in some fashion. The Board had an absolute right to look at this case and to protect the citizens of Ohio. As far as bootstrapping the Kentucky Order, Dr. Kumar stated that he absolutely agrees with that. He stated that he sees no purpose at this point to suspend Dr. Simons? license, even with a stayed suspension. He noted that Kentucky did not rule on the allegations before it; Kentucky only took a position on what it needed to do to protect its citizens. DR. KUMAR MOVED TO AMEND THE PROPOSED ORDER IN THE MATTER OF MITCHELL EDWARD SIMONS, M.D., BY REMOVING THE PROPOSED SUSPENSION LANGUAGE AND TO CHANGE THE LANGUAGE IN THE UPDATED PARAGRAPH BY REMOVING THE OPENING PHRASE, REIN DR. STEINBERGH SECONDED THE MOTION. Dr. Davidson stated that she might be wrong, but her understanding of the Report and Recommendation as regarding the suspension was that the Board was punishing Dr. Simons for lying on his application. The Board has suspended other physicians for such an act. Dr. Kumar stated that the fraud in the application on the record relates to alleged fraud on Dr. Simons? Kentucky application, not Ohio?s renewal application. A vote was taken: Vote: Mr. Albert abstain Dr. Egner - Dr. Varyani - Dr. Buchan Dr. Kumar - Mr. Browning - Dr. Davidson - Dr. Madia Dr. Steinbergh - The motion carried. EXCERPT FROM THE DRAFT MINUTES OF JULY 12, 2006 . IN THE MATTER OF MITCHELL EDWARD SIMONS, MD. Page 6 DR. STEINBERGH MOVED TO APPROVE AND CONFIRM MS. FINDINGS OF FACT, CONCLUSIONS, AND PROPOSED ORDER, AS AMENDED, IN THE MATTER OF MITCHELL EDWARD SIMON S, MD. DR. VARYANI SECONDED THE MOTION. A vote was taken: Vote: The motion carried. Mr. Albert Dr. Egner Dr. Varyani Dr. Buchan Dr. Kumar Mr. Browning Dr. Davidson Dr. Madia Dr. Steinbergh abstain - - State Medical Board of Ohio 77' 8, High 51., 17th Floor 0 Columbus, OH 43215-6127 0 {614) 466-3934 ?Website: ohiogov May 18, 2005 Mitchell Edward Simons, MD. 81 Sweetbriar Ft. Thomas, KY 41075 Dear Doctor Simons: In accordance with Chapter 119., Ohio Revised Code, you are hereby notified that the State Medical Board of Ohio [Board] intends to determine whether or not to limit, revoke, permanently revoke, suspend, refuse to register or reinstate your certificate to practice medicine and surgery, or to reprimand you or place you on probation for one or more of the following reasons: (1) On or about February 17, 2005, the Commonwealth of Kentucky Board of Medical Licensure [Kentucky Board] filed an Agreed Order in which you agreed that your license to practice medicine in the Commonwealth of Kentucky would be subject to certain terms and conditions set forth in said Order, including that you would have a chaperone present throughout any personal contact with female patients in your professional office or in any other clinical setting, which chaperone would be approved in advance by the Kentucky Board or its staff. You further agreed to complete the ?Maintaining Proper Boundaries? course through the Center for Professional Health at Vanderbilt University Medical Center in Nashville, Tennessee. The Kentucky Board Agreed Order, a copy of which is attached hereto and incorporated herein, sets forth in additional detail the terms and conditions of the Agreed Order, as well as the stipulated facts and conclusions of law that served as the factual and legal bases for the Agreed Order The Kentucky Board Agreed Order, as alleged in paragraph (1) above, constitutes ?[a]ny of the following actions taken by the agency responsible for regulating the practice of medicine and surgery, osteopathic medicine and surgery, podiatric medicine and surgery, or the limited branches of medicine in another jurisdiction, for any reason other than the nonpayment of fees: the limitation, revocation, or suspension of an individual's license to practice; acceptance of an individual's license surrender; denial of a license; refusal to renew or reinstate a license; imposition of probation; or issuance of an order of censure or other reprimand,? as that clause is used in Section Ohio Revised Code. MAILED 5?H-a5 Mitchell Edward Simons, MD. Page 2 Pursuant to Chapter 119., Ohio Revised Code, you are hereby advised that you are entitled to a hearing in this matter. If you wish to request such hearing, the request must be made in writing and must be received in the offices of the State Medical Board within thirty days of the time of mailing of this notice. You are further advised that, if you timely request a hearing, you are entitled to appear at such hearing in person, or by your attorney, or by such other representative as is permitted to practice before this agency, or you may present your position, arguments, or contentions in writing, and that at the hearing you may present evidence and examine witnesses appearing for or against you. In the event that there is no request for such hearing received within thirty days of the time of mailing of this notice, the State Medical Board may, in your absence and upon consideration of this matter, determine whether or not to limit, revoke, permanently revoke, suspend, refuse to register or reinstate your certificate to practice medicine and surgery or to reprimand you or place you on probation. Please note that, whether or not you request a hearing, Section Ohio Revised Code, provides that ?[w]hen the board refuses to grant a certificate to an applicant, revokes an individual?s certificate to practice, refuses to register an applicant, or refuses to reinstate an individual?s certificate to practice, the board may specify that its action is permanent. An individual subject to a permanent action taken by the board is forever thereafter ineligible to hold a certificate to practice and the board shall not accept an application for reinstatement of the certificate or for issuance of a new certificate.? Copies of the applicable sections are enclosed for your information. 1Very truly yours, Lance A. Talmage, M.D. Secretary LAbelt Enclosures CERTIFIED MAIL 7003 0500 0002 4340 6806 RETURN RECEIPT REQUESTED Rev. 213/04 Mitchell Edward Simons, MD. Page 3 cc: Otto Daniel Wolff, Esq. Attorney and Counsellor at Law The Ernst Mansion 405 Garrard Street Covington, Kentucky 41011 CERTIFIED MAIL 7003 0500 0002 4340 6813 RETURN RECEIPT REQUESTED cc: Jeffrey J. urea, Esq. Lane Alton Horst, LLC 175 S. Third St., Suite 700 Columbus, Ohio 43215 CERTIFIED MAIL 7003 0500 0002 4340 6820 RETURN RECEIPT REQUESTED Rev. 2.8!04 Telephone: 50214294150 Fax: 502142957 153 Danny M. Clark, MD. President Hurstbourne Office Park 310 Whittingmn Parkway, Suite 18 Louisville, Kentucky 40222 Date: April 27, 2005 guano MEDICAL BOARD APR 2 9 2005 From: C. Jill Lun, Open Records Custodian Via: First Class Mail Re: Mitchell E. Simons, MD. This record is certified not certi?ed Please find attached the document(s) you requested pursuant to the Kentucky Open Records Act. The Kentucky Board of Medical Licensure is a State agency which is responsible for maintaining the records concerning medical licensure pursuant to KRS 311.530. Thank you for allowing us to be of assistance. If you require additional information, please do not hesitate to call our office. CERTIFICATION I, C. Jill Lun, custodian of the records for the Kentucky Board of Medical Licensure, hereby certify that the attached are true and exact copies of the documents on ?le with this office. C. Jill Opal ?ecords Custodian To: Mark R. 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