A hearing examiner for the state Board of Nursing has the discretion to limit or block a subpoena requested during a disciplinary hearing, the Ohio Supreme Court ruled today. The Supreme Court determined that all state administrative agencies granted the power to issue subpoenas have the related power to limit their use in licensure-related hearings.

Writing for the Supreme Court majority, Justice Judith Ann Lanzinger stated that agencies must have some minimal authority to control their hearings. While licensure-related hearings do not follow the same strict rules as criminal or civil judicial hearings, the agencies have a duty to maintain fairness and impartiality when considering requests for individuals to testify and produce documents.

Nurse Disciplined for Patient’s Death
In Clayton v. Board of Nursing, the Court considered the objections of Beverly Clayton, a former nurse at Mercy Hospital Western Hills in Cincinnati, to a hearing examiner’s decision to limit one of her subpoenas for patient records.

In August 2009, Clayton was assigned to care for a patient identified in court records as R.B., who had just been admitted to the Intensive Care Unit (ICU) at the time Clayton started her 12-hour shift. R.B. was 80 years old and diagnosed with several ailments. Clayton administered medication to him relying on physician instructions in the hospital computer. In addition to the intravenous administration of medication, Clayton also gave R.B. more than a liter of normal saline.

Although Clayton assessed R.B.’s condition every two hours, she did not review the treatment plan and physician orders attached to his chart by the lead internal-medicine physician at the hospital. Among those orders were different medications than those shown in the computer, orders to contact additional medical specialists, and a prohibition against administering normal saline.

Throughout the night R.B.’s condition deteriorated and he died the next morning. Clayton’s supervisor informed her that afternoon that R.B.’s death would be investigated and that she would be suspended without pay until the investigation was completed. Later that day, Clayton resigned.

The Board of Nursing initiated a professional disciplinary action against Clayton, alleging her failure to check and follow the physician’s orders constituted a failure to practice safe nursing care. Clayton requested a hearing.

Clayton Requests Numerous Hospital Records
During prehearing proceedings, Clayton asked the board to subpoena more than two dozen people. She also sought seven sets of documents, including all hospital records associated in any way with R.B., employment files of all hospital employees who had any association with R.B’s treatment, and the complete medical charts of all patients being treated in the ICU during the shift when R.B. was admitted.

The board filed a “motion to limit subpoena request” arguing the request was excessive, and that providing the ICU patient charts was unreasonable and would cause confidentiality problems. The hospital also objected to the ICU patient records and claimed that producing them would cause a significant undue burden. Clayton narrowed her subpoena request, but asserted that the records of the other ICU patients were necessary to establish the extenuating circumstances surrounding her ability to care for R.B.

Clayton objected to the board’s requested limitations, arguing the hearing examiner had no right to limit or reject subpoenas. The hearing examiner denied the records for the other ICU patients, ruling this information was likely irrelevant, outweighed by the privacy concerns of the patients, and that the same information could be obtained through other subpoenaed witnesses.

At the disciplinary hearing, Clayton called several witnesses, but she did not call the nursing supervisor or the two ICU nurses on shift duty with her that night. The witnesses agreed that the overall circumstances of the ICU were chaotic and that Clayton was overburdened with responsibilities, including supervising less experienced nurses.

The hearing examiner ultimately found Clayton failed to follow the proper orders, and did not notify medical specialists in time for them to adequately address R.B.’s condition. But the examiner also noted that the existing chaotic circumstances should serve to mitigate any eventual sanction. The board considered the hearing examiner’s recommendation and suspended Clayton’s license for at least one year, with certain probationary conditions.

Clayton Appeals the Suspension
Clayton appealed the administrative ruling to the Franklin County Court of Common Pleas, arguing that the examiner in failing to give her access to the records of other patients had denied her a meaningful hearing by rendering her unable to prove she was overburdened. The trial court affirmed the nursing board’s suspension and Clayton appealed to the Tenth District Court of Appeals.

The Tenth District also affirmed the board’s suspension, but noted R.C. 119.09 places a mandatory duty on the hearing officer to issue subpoenas and does not provide the discretion to reject or limit them. However, the appellate court ruled that Clayton did not meet her burden to show that the rejection of those records prejudiced her case. She appealed to the Supreme Court.

Clayton Argued Her Rights Were Violated
Clayton maintained on appeal that the hearing officer had no authority to deny her access to the patients’ records, but even if he had the authority, limiting her request denied her a fair hearing because the records were crucial to her case.

Justice Lanzinger wrote that R.C. Chapter 119 applies to all state agencies that have “the authority or responsibility of issuing, suspending, revoking, or canceling licenses.” The chapter outlines procedures allowing agencies like the Board of Nursing to follow state laws and agency rules, including adopting a process that allows a hearing examiner to hear a matter on behalf of the board.

Justice Lanzinger noted that R.C. 119.09 states that “the agency may, and upon the request of any party… shall, issue a subpoena for any witness” or documents. However, the language does not address whether the hearing officer has a right to limit or refuse a subpoena when the recipient objects to it.

The nursing board relied on a rule, Ohio Adm. Code 4723-16-08, which gives hearing examiners the authority to limit subpoenas. While state law does not expressly grant the permission to administrative agencies to limit subpoenas, Justice Lanzinger wrote that based on the Supreme Court’s 1981 State ex rel. Corrigan v Seminatore decision, the power “may be fairly implied where it is reasonably related to the duties of the public agency.”

“Accordingly, we hold that a hearing examiner has the discretion to limit or quash subpoenas requested during adjudication hearings for the purpose of conducting a fair and efficient hearing,” Justice Lanzinger concluded.

The Court also determined that the missing evidence would not help Clayton justify why she gave R.B. the normal saline instead of following the doctor’s order not to give it at all. Justice Lanzinger wrote the hearing examiner’s decision to limit the evidence was not “so irrational that it was an abuse of discretion or so capricious that it violated Clayton’s procedural due process rights.”

The Court affirmed the Tenth District’s judgment to uphold Clayton’s suspension.

Chief Justice Maureen O’Connor and Justices Judith L. French and William M. O’Neill joined the majority opinion.

Dissenting Justices Question Fairness of Limiting Evidence
In a dissenting opinion, Justice Paul E. Pfeifer questioned whether R.B.’s death was caused by Clayton’s failure or a larger, systemic failure at Mercy Hospital. He wrote that forcing Clayton to rely on the testimony of two “inexperienced co-workers, who may be called against their will to testify about their own incompetence” would not provide the same quality of evidence as the medical records. He noted an expert witness testifying on Clayton’s behalf expressed how important the documentation in the other patients’ records would have been in describing the chaotic circumstances that Clayton experienced.

“Beverly Clayton lost her license to perform her profession for at least a year. That is a crushing sanction, and the suspension carries a taint that will last forever. I would hold that a person fighting to maintain her right to practice her profession is entitled to fairly wide latitude in seeking documentary evidence to support her defense…,” he wrote.

Justice Terrence O’Donnell concurred in the dissent.

Other Dissent Finds Board Exceeded its Authority
In a separate dissenting opinion, Justice Sharon L. Kennedy wrote the board exceeded its authority in authorizing the examiner to limit or reject subpoenas, and that the majority has provided an administrative agency with “a new, unchecked power” that contradicts the mandatory language in R.C. 119.09 which states an examiner “shall” issue a subpoena when requested.

“Since 1917 this court has consistently limited the power of an administrative agency to those powers granted to it by statute,” she wrote. As a result, the board could only promulgate a regulation granting itself the power to quash subpoenas if this power could be tied to a specific statute.

She noted that R.C. 4723.07 gives the nursing board the right to develop administrative rules for only certain subject areas such as educational standards, licensing requirements, and administration of medication. This statutes does not give the board the power to make rules regarding subpoenas.

“In this case, with regard to subpoenas requested by a party, the General Assembly expressly limits the board’s and therefore the hearing examiner’s authority to the issuance of such subpoenas,” she wrote. “Neither the board nor a hearing examiner has the authority to quash a subpoena request for any reason.”

2014-1092. Clayton v. Ohio Bd. of Nursing, Slip Opinion No. 2016-Ohio-643.

View oral argument video of this case.

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