The Akron Legal News

Neurologist who irresponsibly prescribed meds loses appeal

ANNIE YAMSON
Special to the Legal News
Published: October 7, 2016

The 10th District Court of Appeals last week affirmed a judgment suspending an Ohio neurologist for irresponsibly prescribing pain medication.

Dr. Marvin Rorick appealed from the findings of the Ohio State Medical Board and the sanctions that resulted from those findings after already having an appeal rejected by the Franklin County Court of Common Pleas.

"Dr. Rorick has a long history of assisting patients in managing their pain," according to the opinion issued by the 10th District and authored by Judge Gary Tyack. "Because of concerns in recent years about physicians generally prescribing pain medications which can be highly addictive as part of pain management, the board has paid special attention to physicians who prescribe pain medications in significant quantities."

According to court documents, the pain management practices of Dr. Rorick came under review and a complaint was filed with the board.

Subsequent hearings resulted in an extensive report which found violations of proper medical practices in the handling of 12 different patients.

After reviewing the evidence presented at the hearings, a hearing examiner prepared a recommendation for the board, which imposed a total suspension of 30 days and a probationary term of two years.

"We are to reverse the common pleas court only if we find that the common pleas court abused its discretion in finding that the board had reliable, substantial and probative evidence before it in support of its factual findings," Tyack wrote. "However, we are directed to give special deference to the board's interpretation of the medical issues before it due to the expertise of the members of the board."

In its review of the case, the 10th District court's three-judge appellate panel overruled arguments from Rorick in which he claimed that the board was wrong to rely on the testimony of a fellow neurologist who reviewed patient records from Rorick's practice and who concluded that 12 patients had not been properly handled.

Rorick also argued that the board improperly used information from the Ohio Automated Rx Reporting System, or OARRS.

Under the Ohio Revised Code, the OARRS is not to be used as evidence in any civil or administrative proceeding.

"As currently written, OARRS data as to Dr. Rorick was appropriately released to the board as a group responsible for the licensure and discipline of healthcare professionals," Tyack wrote. "Counsel for Dr. Rorick does not contest that the board is entitled to have the OARRS data, but argues that the OARRS data was used as evidence in the administration proceedings against Dr. Rorick."

According to the Board, the data was not used to prove any violation and it was Rorick himself who placed the data from the OARRS in his patient files, which were then turned over to the board under subpoena.

The court of appeals ruled that, technically, the OARRS data should have been removed from the patient files before they were submitted to as evidence.

"Even more technically, Dr. Rorick should not have been permitted to use the OARRS data to defend himself during his testimony at his hearing," Tyack wrote. "This latter technical interpretation raises huge due process problems by barring a physician from defending himself or herself by showing how rarely they prescribed certain controlled substances."

The appellate panel concluded that the OARRS data did not prejudice Rorick and instead helped him and its use did not constitute reversible error.

The judges also found that there was evidence that Rorick turned to pain medication before attempting alternative treatments with several patients.

A patient who complained of back pain, for instance, was prescribed Oxycodone and Hydrocodone with the patient file stating that the patient was "encouraged to engage in a physical fitness program," though any other options were not explored.

"Placing a patient on highly addictive pain medication before other options are pursued, especially an option that in essence is 'get yourself more physically fit and maybe it will help your back pain,' could reasonably be interpreted by the board as a failure to pursue reasonable, non-addictive options," Tyack wrote.

The panel also reviewed evidence that Rorick kept at least one patient on medications to which she had become addicted.

After considering all of Rorick's assignments of error, the court of appeals ruled to affirm the board's findings and the judgment of the common pleas court.

Tyack was joined by Judges Lisa Sadler and William Klatt to form the majority.

The ruling comes at a time when the medical board and the Ohio State Pharmacy Board are taking a closer look at doctors' prescribing methods in the midst of an opioid overdose epidemic.

In August, an audit by the pharmacy board found that potentially one third of doctors in the state are not using the OARRS properly in order to check patients'' prescription histories before prescribing pain meds.

The case is cited Rorick v. State Med. Bd. of Ohio 2016-Ohio-7070.

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