Imhop v. Delaware Board of Medical Licensure and Discipline ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
KEVIN IMHOF, )
)
Appellant, )
)
v. ) C.A. No. K21A-06-004 NEP
)
DELAWARE BOARD OF MEDICAL )
LICENSURE AND DISCIPLINE, )
)
Appellee. )
Submitted: October 26, 2021
Decided: January 26, 2022
Corrected: January 27, 2022
MEMORANDUM OPINION AND ORDER
Upon Appellant’s Appeal from the Decision of the Delaware Board of Medical
Licensure and Discipline
AFFIRMED IN PART and REMANDED
Bruce A. Rogers, Esquire, Bruce A. Rogers, P.A., Georgetown, Delaware,
Attorney for Appellant.
Kemba Lydia-Moore, Esquire, and Patricia A. Davis, Esquire, Deputy Attorneys
General, Department of Justice, Dover, Delaware, Attorneys for Appellee.
Primos, J.
Before this Court is the appeal of Kevin A. Imhof (hereinafter “Imhof”)
from the decision of the Board of Medical Licensure and Discipline (hereinafter
the “Board”) finding that he engaged in unprofessional conduct. A final order of
the Board (hereinafter the “Order”) found that Imhof, a Board-licensed
paramedic, engaged in conduct constituting crimes substantially related to the
practice of medicine in violation of 24 Del. C. § 1731(b)(2); engaged in
dishonorable, unethical, or other conduct likely to deceive, defraud, or harm the
public in violation of 24 Del. C. § 1731(b)(3); and wilfully failed to report certain
conduct in a timely fashion in violation of 24 Del. C. § 1731(b)(14).1 For the
reasons that follow, the Court finds that, while violations of the first two
provisions cited supra are supported by substantial evidence, it is unclear from
the facts in the record whether a violation of the third provision is supported by
substantial evidence. Therefore, the Order is AFFIRMED IN PART and
REMANDED.
I. FACTUAL AND PROCEDURAL HISTORY
In 2019, Imhof completed a questionnaire and underwent a pre-
employment polygraph test as part of his application for a position with the
Delaware State Police. On the questionnaire and during the test, Imhof made
certain admissions, including the following: 1) he had accessed his former wife’s
social media accounts, emails, and text messages without her permission during
the second half of 2018;2 2) he had driven to his former wife’s residence and had
1
24 Del. C. § 1731(b) (“’Unprofessional conduct’ includes any of the following acts or
omissions: . . . (2) Conduct that would constitute a crime substantially related to the practice
of medicine; (3) Any dishonorable, unethical, or other conduct likely to deceive, defraud, or
harm the public; . . . (14) Wilful failure to report to the Board as required by § 1730(b) of this
title . . . .”).
2
Imhof and his former spouse divorced in November 2018, but most of the conduct to which
he admitted during the polygraph test occurred while they were still married but separated.
Hearing Officer’s Recommendation at 12, 19.
2
watched through an outside window while she and another individual engaged in
sexual activity; 3) he had trespassed into his former wife’s house and committed
lewd acts within; and 4) he had committed acts of vandalism by keying his former
wife’s automobile, and then his own—to conceal his actions—and, thereafter, had
filed a fraudulent insurance claim related to such damages. In consequence, the
Delaware State Police made a criminal referral.
In September 2019, Imhof entered guilty pleas to the offenses of Criminal
Mischief, Violation of Privacy, and Trespass with Intent to Peer or Peep. The
remaining charges were dropped. Imhof did not inform the Board of the criminal
charges or his convictions until he applied to renew his license in May 2020.
The Delaware Department of Justice filed a disciplinary complaint against
Imhof with the Board in January 2020, which was twice amended. A hearing was
held on the complaint before a hearing officer on February 8, 2021. The hearing
officer, after reviewing all the submitted and testimonial evidence, issued a
written recommendation to the Board on March 24, 2021, including findings of
fact, recommended conclusions of law, and recommended discipline. The hearing
officer concluded that Imhof had violated the three statutory provisions listed
supra. Specifically, the hearing officer found that by pleading guilty to two
crimes the Board has determined to be “substantially related to medicine,” Imhof
had violated 24 Del. C. § 1731(b)(2); that Imhof had engaged in “dishonorable,
unethical, or other conduct likely to deceive, defraud, or harm the public” in
violation of 24 Del. C. § 1731(b)(3); and that Imhof’s report of his criminal
conduct “was grossly untimely” in that he had waited nine months following his
arrest to report the matter to the Board, thus violating 24 Del. C. § 1731(b)(14).3
3
Id. at 27.
3
The hearing officer’s recommended discipline included suspension of Imhof’s
Paramedic license. 4
Following issuance of the hearing officer's recommendation, the parties
were allowed twenty days to submit to the Board written argument, objections or
exceptions to the hearing officer's recommendation. Imhof submitted written
exceptions to the Board.5
The Board considered Imhof’s oral and written arguments, along with the
State’s oral arguments in opposition, and in the Order adopted the facts found by
the hearing officer but squarely rejected a specific legal conclusion:
[T]he hearing officer’s discussion of Board Rule 8.1.3 is expressly
rejected as inapplicable as Mr. Imhof’s wife was not his patient and
4
The recommended discipline, in relevant part, was as follows:
1. That the Board of Medical Licensure and Discipline suspend the Paramedic
license presently held by Kevin Imhof for a period of two years . . . ;
2. That Mr. Imhof be permitted to petition the Board to lift such suspension not
sooner than one year after such period of license suspension begins, but if and
only if Mr. Imhof enrolls in the Delaware Professionals Health Monitoring
Program (DPHMP) within 30 days of the date of the Board’s final order . . . ;
3. That if Mr. Imhof fails to timely enroll in DPHMP . . . his license be or remain
on suspension until the full two years [sic] period of license suspension expires;
4. That if and when Mr. Imhof petitions the Board to lift his suspension and
return to practice, he shall appear before the Board and show proof the [sic] he
is fit to return to practice . . . ;
5. That Mr. Imhof be ordered to pay a monetary fine in the amount of $1,000
within 90 days of the date of the final order . . . ;
6. That Mr. Imhof be ordered to report to the Board any new criminal
investigations, arrests and/or convictions . . . ;
7. That the final order of the Board in this case constitute public disciplinary
action reportable to pertinent public practitioner data bases.
Id. at 29–30.
5
The State did not submit written exceptions to the Board but instead presented oral argument
in opposition to Imhof’s exceptions at the Board hearing held on May 4, 2021.
4
the hearing officer’s discussion of the “tenor” of that regulation is
rejected by the Board.6
In addition, the Board was persuaded by Imhof that the DPHMP requirement was
not an appropriate discipline (as Imhof had already completed all aspects of
probation and requirements arising from his participation in Veterans Court), and
to that degree the Board modified the discipline to Imhof’s benefit and discarded
the requirement for Imhof to participate in the DPHMP.7 The Order noted that
“[t]he Board is bound by the findings of fact made by the hearing officer,” but
“may affirm or modify the hearing officer’s conclusions of law and recommended
discipline.”8 In summary, the Board adopted the hearing officer’s factual findings
and affirmed the majority of the legal conclusions but lessened the discipline
imposed.
II. PARTIES’ CONTENTIONS
Imhof raises three primary grounds for appeal: 1) the findings of the hearing
officer contained both legal errors and typographical errors9 that are “part of the
6
Bd. Ord. at 2.
7
Id. at 3–4. The discipline imposed by the Board, in relevant part, was as follows:
1. Mr. Kevin Imhof’s License is suspended for a period of two years, effective
on the date of this Order; and
2. Mr. Imhof is permitted to petition the Board to lift such suspension not sooner
than one year after such period of license suspension begins, but the suspension
will only lift if Mr. Imhof can demonstrate to the satisfaction of the Board that
he is fit to return to the practice, has rehabilitated, and has not engaged in any
additional behavior of the type giving rise to this order; and
3. Mr. Imhof is ordered to pay a monetary fine in the amount of $1000 within
90 days of the date of this Order. . . .
Id. at 4.
8
Id. at 1.
9
Typographical errors, especially those referenced by Imhof on page 9 of his opening brief,
e.g., the hearing officer’s substituting another name for Imhof’s in a portion of the
5
parcel of findings” subject to collateral dispute on appeal;10 2) the crimes of Imhof
are not “substantially related to the practice of medicine,” and the Board did not
take into account the facts and circumstances of this matter but instead imposed
“strict liability” upon Imhof under the designated criminal charges listed in
24 Del. Admin. C. § 1700–15 in a manner not supported by the record;11 and 3)
Imhof’s actions did not “harm the public” in that they involved only his former
wife.12
recommendation, do not give rise to an appealable issue and are de minimis. See MRPC Fin.
Mgmt. LLC v. Carter, 2003 WL 21517977, at *6 (Del. Super. June 20, 2003) (“Petitioner
complains that because the Board references the incorrect Referee, it must have considered facts
outside the ruling of Theresa Matthews. Clearly, the typographical error or substitution of one
name for another is of no consequence. It is the record and decision below which matter; and
the decision accurately reflects the record below. The error is de minimus [sic].”).
10
Imhof’s Opening Br. at 6–17; Imhof’s Reply Br. at 2–3.
11
Imhof’s Opening Br. at 6 (arguing that the Board appears to “check the box” of listed crimes
without addressing the specific facts of the case). In making this argument, Imhof contends
that it is inappropriate for the Board to have found that private conduct between spouses
unrelated to the actual practice of medicine should give rise to disciplinary action. Imhof’s
Reply Br. at 3.
12
Imhof’s Opening Br. at 9–11. As an additional argument, Imhof contends that his motion to
dismiss (filed before the hearing) should have been granted because the delay of the hearing
was a violation of his due process rights. Delaware courts have found that “[a]s a general rule,
an individual's due process rights are not violated, and will not effect [sic] the validity of an
administrative determination, unless actual prejudice is shown.” Sandefur v. Unemployment
Ins. Appeals Bd., 1993 WL 389217, at *5 (Del. Super. Aug. 27, 1993) (citing 73A C.J.S. Public
Administrative Law and Procedure § 137)). Moreover, in reference to delays in professional
licensure proceedings, “Delaware's interest in not applying the doctrine of laches or a general
statute of limitations to such proceedings is substantial.” See Kotler v. Bd. of Med. Prac., 630
A.2d 1102, 1993 WL 307621, at *3 (Del. 1993) (TABLE). Thus, a party asserting due process
violations or laches in such a context must show that the delay was unreasonable and has caused
actual prejudice. Id. at *2, *3.
The hearing officer found that any delay was not unreasonable given the Covid-19
pandemic (and orders that followed, e.g., Chief Justice’s Administrative Order tolling time
requirements under the Speedy Trial Guidelines during the judicial emergency, Admin.
Order No. 12 ¶ 4 (Nov. 2, 2020)) and issues related to technology. In addition, the hearing
officer found that Imhof had not shown actual prejudice by such delay. Ex. H.O. X1 at 2. This
Court finds that the hearing officer’s November 10, 2020, decision denying Imhof’s Motion to
Dismiss is based on substantial evidence and free from legal error.
6
The State opposes the appeal, stating that the hearing officer’s decision is
adopted only as to its factual findings and that the Board made a final rendering
as to the legal recommendations, i.e., choosing whether or not to accept or modify
the hearing officer’s conclusions of law and recommended discipline.13 Thus, the
State contends that when the Board rejects a recommendation based on a legal
error, this Court, on appeal, should disregard that error as it was not applied in the
“case decision.”14 As to Imhof’s second argument, the State contends that it is
undisputed that Imhof pled guilty to two offenses that the Board has listed as
“substantially related to the practice of medicine.” Therefore, no further inquiry
is required due to the guilty pleas. Lastly, the State contends that Imhof’s former
wife is part of the “public” and in addition that other members of the public were
harmed, including the insurance carrier that was defrauded.
III. STANDARD OF REVIEW
On appeal from an administrative board’s final order, this Court must
determine whether the board’s findings are supported by substantial evidence and
are “free from legal error.”15 Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”16
The Court does not weigh the evidence or make its own factual findings—
rather, it determines if the evidence was adequate to support the administrative
board’s factual findings.17 Upon review of the factual determinations of an
administrative board, the Court shall “take due account of the experience and
13
State’s Answering Br. at 12–13.
14
Id. at 14–15.
15
Optima Cleaning Sys. v. Unemployment Ins. Appeal Bd., 2010 WL 5307981, at *2 (Del.
Super. Dec. 7, 2010).
16
Id. (citing Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993) (internal
quotations omitted)).
17
Id. at *2 (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
7
specialized competence of the agency and of the purposes of the basic law under
which the agency has acted.”18 Questions of law are reviewed de novo.19 Hence,
if the administrative board’s decision is free from legal error and supported by
substantial evidence, it must be affirmed.20
IV. DISCUSSION
29 Del. C. § 10142(a) provides that any party against whom a
“case decision” has been decided may appeal that decision to this Court.21 The
provisions of the Delaware Administrative Procedures Act, including those
regarding judicial review, apply to the Board.22 A “case decision” means the
final order issued by the Board, not the legal recommendations of the hearing
officer.23 A hearing officer’s recommendation to the Board is “nothing more than
[a] recommendation of action.”24 It lacks both the authentication and formalities
required of a final order.25 Although neither the Board nor this Court is bound by
the hearing officer’s proposed conclusions of law or recommended discipline,
both the Board and this Court are generally bound by the findings of facts set out
18
29 Del. C. § 10142(d).
19
Person-Gaines v. Pepco Holdings, 981 A.2d 1159, 1161 (Del. 2009).
20
Motiva Enter. v. Sec’y of Dept. of Nat. Res. & Envtl. Control, 745 A.2d 234, 242 (Del. Super.
1999).
21
See 29 Del. C. § 10102(4) (“Court” is the Superior Court).
22
Gala v. Delaware Bd. of Med. Licensure and Discipline, 2020 WL 2111372, at *5 (Del.
Super. May 1, 2020), aff'd sub nom. Gala v. Bullock (hereinafter “Bullock”), 250 A.3d 52 (Del.
2021).
23
See Daimler Chrysler Corp. v. Del. Dept. of Ins., 2007 WL 914909, at *2 (Del. Super. Jan.
23, 2007) (holding that because a hearing officer only makes recommendations to the Insurance
Commissioner, it is the Commissioner’s decision, after consideration of those
recommendations, that is the final determination subject to judicial review under the APA, and
dismissing the appellant’s appeal of the hearing officer’s recommendations in that case as
impermissibly interlocutory).
24
Gala, 2020 WL 2111372, at *5 (quoting Quaker Hill Place v. Saville, 523 A.2d 947, 952–53
(Del. Super. Feb. 10, 1987), aff'd, 531 A.2d 201 (Del. 1987)).
25
Id. (citing Quaker, 523 A.2d at 953).
8
by the hearing officer.26 However, to the extent that the findings of facts implicate
legal issues, e.g., evidentiary rulings, those are ripe for appeal.27
A. Hearing Officer’s Recommendation
1. Imhof’s evidentiary objections and argument regarding the
scope of the Board’s inquiry are rejected.
Administrative agencies “operate less formally than courts of law.”28
Accordingly, “rules of evidence do not strictly apply to administrative hearings.”29
The Board may hear “all evidence which could conceivably throw light on the
controversy.”30 “Only when the hearsay is incompetent will the Board's reliance
on such testimony be deemed an abuse of discretion.”31 However, the Board
should apply the rules of evidence “insofar as practicable.”32
Imhof argues that the hearing officer committed legal error when the officer
allowed the polygraph operator to testify regarding evidence related to Imhof’s
character beyond the scope of his criminally charged conduct. In addition, Imhof
26
Spraga v. Delaware Bd. of Med. Licensure and Discipline, 2017 WL 3396490, at *3 (Del.
Super. Aug. 7, 2017) (“Unlike the Hearing Examiner's findings of fact, which the Board (and
the Court) are bound to follow, the Examiner also made proposed conclusions of law to which
neither are similarly bound.”); accord Bullock, 250 A.3d at 66 (“The Board is bound by a
hearing officer's findings of fact, but it has the discretion to consider a party's exceptions as to
conclusions of law and recommended penalties.”).
27
See, e.g., Tenaglia-Evans v. St. Francis Hosp., 913 A.2d 570, 2006 WL 3590385, at *3 (Del.
2006) (TABLE) (considering evidentiary rulings by an administrative board under an abuse of
discretion standard).
28
Leonard v. Delaware Bd. of Nursing, 2013 WL 422904, at *4 (Del. Super. Jan. 30, 2013)
(quoting Standard Distrib. Co. Through Pennsylvania Mfrs. Ass'n Ins. Co. v. Nally, 630 A.2d
640, 647 (Del. 1993)).
29
Tenaglia-Evans, 2006 WL 3590385, at *3.
30
Id. (quoting Ridings v. Unemployment Ins. Appeal Bd., 407 A.2d 238, 240 (Del.1979)).
31
Id. (citing Dixon v. Lower Kensington Envtl. Ctr., 1994 WL 380999 (Del. Super. Jul. 8,
1994)).
32
Standard Distrib., Inc. v. Hall, 897 A.2d 155, 157 (Del. 2006).
9
argues that the Board relied on factual findings not directly related to his pled
crimes.
As to the latter, the Board is not restricted to evidence related only to
charged or convicted crimes, and in many cases the Board investigates uncharged
conduct.33 In this matter, the Board, through the hearing officer, heard evidence
that shed light on the pertinent actions of Imhof relating to the violations alleged
in the disciplinary complaint.
As to the evidentiary issue, Imhof’s conduct reported to the polygraph
operator, at times, overstretched the bounds of relevance to the proceeding, e.g.,
the statements regarding the kik application.34 However, neither the hearing
officer’s “Findings of Fact” nor the Order relied on these statements. Therefore,
to the extent that this evidence was improperly admitted, the admission
constituted harmless error.35
2. Imhof’s argument regarding the hearing officer’s legal
recommendation is not within the “case decision” and was
squarely rejected by the Board.
Imhof devotes significant argument to the hearing officer’s legal finding
that Imhof’s spouse could be considered a “patient” under the “tenor” of the
regulation.36 The Board, as mentioned supra, squarely rejected this legal
33
See, e.g., Bilski v. Bd. of Med. Licensure and Discipline, 2014 WL 3032703, at *1 (Del.
Super. June 30, 2014), aff'd, 115 A.3d 1214 (Del. 2015) (investigating medical record keeping
practices of a doctor).
34
Hearing Officer’s Recommendation at 10.
35
See Conley v. Capitol Homes, Inc., 2006 WL 2997535, at *7 (Del. Super. Aug. 31, 2006)
(finding that when the “[Industrial Accident] Board's opinion does not indicate it considered
this collateral evidence in rendering its decision,” such admitted evidence constitutes “harmless
error, if error at all.”).
36
See Opening Br. at 9; Reply Br. at 2–3.
10
recommendation, and therefore this issue is not part of the “case decision,” i.e., it
is not reviewable by this Court.37
B. The Board’s “Case Decision”
1. 24 Del. C. § 1731(b)(2)—Conduct that would constitute a crime
substantially related to the practice of medicine
Pursuant to 24 Del. C. § 1731(b)(2), “Unprofessional Conduct. . . [is]
[c]onduct that would constitute a crime substantially related to the practice of
medicine.” Crimes substantially related to the practice of medicine are
enumerated in 24 Del. Admin. C. § 1700–15 (hereinafter “Regulation 15”).
Regulation 15 states that “for purposes of licensing, renewal, reinstatement and
discipline, the conviction of any of the following crimes . . . or substantially
similar crimes in another state or jurisdiction, is deemed to
be substantially related to the practice of Medicine . . . in the State of Delaware
without regard to the place of conviction. . . .”38 The Board has the power and
duty to designate crimes that it deems substantially related to the practice of
medicine.39 In addition, this Court has previously found that the Board followed
the proper procedures under the Delaware APA in enacting Regulation 15.40
37
See Bullock, 250 A.3d 52, 67 (rejecting review of claims that are based upon findings
“appropriately disregarded” by the Board); accord Bilski, 2014 WL 3032703, at *7 (stating “the
court does not consider arguments” that the Board squarely rejected and bases its decision
“solely on the Board’s final decision”).
38
24 Del. Admin. C. § 1700–15.
39
24 Del. C. § 1713(e) ( “The Board shall promulgate regulations specifically identifying those
crimes which are substantially related to the practice of medicine . . . .”
40
Schaller v. Bd. of Med. Licensure and Discipline, 2015 WL 3654963, at *2, *6, *7 (Del.
Super. June 8, 2015) (“The Board found that Regulation 15 was enacted properly and that there
had been no violation of the Delaware Administrative Procedures Act. . . . This Court finds
that Regulation 15 was properly enacted . . . . [and] agrees with the Board and finds that no
error of law occurred when Regulation 15 was adopted without public hearing.”).
11
Imhof’s primary argument regarding the “case decision” is that his conduct
was not substantially related to the practice of medicine. However, two of Imhof’s
pled offenses, Violation of Privacy and Trespassing with Intent to Peer or Peep,
are listed among the crimes substantially related to the practice of medicine found
in Regulation 15.41 Thus, there is no dispute that Imhof pled guilty to two of the
listed crimes. As to this point, Imhof argues that “the evidence submitted by the
State” was “in essence, a claim of strict liability.” It is unclear what argument
Imhof is attempting to make in this regard. In the civil context, “strict liability”
refers to liability without reference to fault; in the criminal context, it refers to
liability without reference to the accused person’s intent (or lack thereof). Here,
however, there is no dispute that Imhof intended to commit the crimes in question
and bears responsibility for them—indeed, he entered guilty pleas to both crimes.
The Board, under its powers and duties, “shall” and did designate certain
crimes to be substantially related to the practice of medicine and went through the
proper administrative procedures to do so by enacting Regulation 15. There was
substantial evidence both through Imhof’s own admissions in his questionnaire
and polygraph, and by means of his guilty pleas, to find that the crimes were
committed.42 Hence, by the authority of Regulation 15, the crimes are deemed
“substantially related to the practice of medicine.” Imhof neither cites authority
nor explains why the Board must, independently of Regulation 15, state why such
41
24 Del. Admin. C. § 1700–15 (“The Board finds that for purposes of licensing, renewal,
reinstatement and discipline, the conviction of any of the following crimes . . . is deemed to be
substantially related to the practice of Medicine . . . . 15.3.4 §820. Trespassing with intent to
peer or peep into a window or door of another . . . . 15.6.10 §1335. Violation of privacy . . . .”).
42
See, e.g., Schaller, 2015 WL 3654963, at *2 (stating that a conviction on the stated charge
amounts to “sufficient substantial evidence to find that Dr. Schaller engaged in conduct that
constitutes a crime substantially related to the practice of medicine in Delaware.” (internal
quotations omitted)).
12
crimes are “substantially related” to his profession. This Court finds no case law
or statutes to support that proposition.
2. 24 Del. C. § 1731(b)(3)—Any dishonorable, unethical, or other conduct
likely to deceive, defraud, or harm the public
The Board has promulgated a list of “dishonorable or unethical” conduct
under 24 Del. Admin. C. § 1700–8 (hereinafter “Regulation 8”). According to
Regulation 8, “[t]he phrase ‘dishonorable or unethical conduct likely to deceive,
defraud, or harm the public’ as used in 24 Del.C. § 1731(b)(3) shall include, but
not be limited to . . . [a]ny . . . act tending to bring discredit upon the profession.”43
Imhof’s assertion that the Board’s conclusions were “summary [in]
nature”44 are not supported by the Order, which found that Imhof committed acts,
to which he admitted, that included 1) intentionally damaging his spouse’s
vehicle, (2) committing insurance fraud in connection with contemporaneous
damage to his own vehicle, 3) accessing his spouse’s home without permission
and destroying clothing and bedding within; and 4) peering through the window
of his spouse’s home to watch her and another individual engage in sexual
activity.45 It is not difficult to perceive how these actions would bring discredit
to the profession.46
Imhof argues that because his actions involved “private conduct between
spouses,” it was not likely to “deceive, defraud, or harm the public.” Imhof’s
actions, however, affected not just his spouse, but others as well: e.g., during both
the “keying” incident and the incident involving surreptitious entry into his
43
24 Del. Admin. C. § 1700–8 at 8.1, 8.1.16.
44
Imhof’s Opening Br. at 17.
45
Bd. Ord. at 2.
46
See id. at 3 (“The Board finds that as a paramedic, Imhof has been placed in a position of
trust and through his behavior as found herein, he was proven to be untrustworthy on multiple
levels. These were not minor offenses; these are serious breaches of trust.”).
13
spouse’s home, he left his children unattended in his vehicle,47 and his actions also
led to the defrauding of his insurance carrier. Because the word “public” is not
separately defined under the statute,48 it must be given its ordinary meaning,49 and
certainly a reasonable, and ordinary, definition of the term would render it
applicable to all those individuals and entities not under the professional oversight
of the Board—which would include both members of Imhof’s family and his
insurance carrier. Hence, there is substantial evidence to support the finding by
the Board that Imhof violated 24 Del.C. § 1731(b)(3) by committing acts likely to
“harm the public” and “discredit” the profession.
3. 24 Del. C. § 1731(b)(14)—Wilful failure to report to the Board as
required by § 1730(b) of this title
The Medical Practice Act requires a licensee to report certain conduct to
the Board within 30 days.50 Imhof argues that the information regarding the
“transfer” of information between certain data systems demonstrates that it could
not be determined whether he failed to report.51 However, the hearing officer
noted that Imhof, through his counsel, conceded that his reporting was late.52 This
was illustrated by counsel’s representations that the lack of reporting came
47
Hearing Officer’s Recommendation at 20. Imhof was ultimately charged with two counts of
endangering the welfare of a child, although he did not enter guilty pleas to those charges. See
exhibits to Imhof’s letter submission to the Board dated April 1, 2021.
48
See 24 Del. C. § 1702 (“public” not included in defined terms applicable to statute).
49
Coastal Barge Corp. v. Coastal Zone Indus. Control Bd., 492 A.2d 1242, 1245 (Del. 1985)
(“Words used in a statute that are undefined should be given their ordinary, common meaning.”
(citing Diamond v. Chakrabarty, 447 U.S. 303, 308 (1980))).
50
24 Del. C. §§ 1731(b)(14), 1730(b).
51
“The Chief Investigator for the Board admitted the transfer of information from the former
information management system (DELPROS) to L2K was ongoing. . . This supports the
proposition that it could not be determined if a report had been made of the offenses.” Imhof’s
Opening Br. at 10.
52
Hearing Officer’s Recommendation at 27 (“In his closing argument counsel for Mr. Imhof
admitted that Mr. Imhof’s reporting was late.”).
14
because of “bad advice” given to Imhof during his criminal proceedings.53 Imhof
himself testified that he had failed to disclose his criminal charges until his
reapplication in May 2020.54 Imhof cannot shield any duty to report, and any
wilful failure not to do so, behind either the reporting systems or “bad advice.”
However, in order for a violation to occur, there must be a duty to report
under § 1730(b). The hearing officer appeared to rely on two statutory
provisions55 concerning this duty to report: § 1730(b)(1)(c)56 and § 1730(d).57 The
State appears to argue that Imhof’s duty to report arose under § 1730(b)(2), which
requires a licensee to report “any civil or criminal investigation . . . which
concerns that person’s certification or license or other authorization to practice
medicine.” However, the hearing officer did not rely upon this provision in
finding a violation under § 1731(b)(14), and the Board merely accepted the
hearing officer’s recommendation as to this point without further comment.58
53
Imhof’s counsel stated in the hearing before the Board that “for the information about no
reporting was he had bad advice from his attorney who was representing him in the criminal
matter [sic] . . . .” Transcript of Proceedings (May 4, 2021) at 5.
54
Tr. of Feb. 8, 2021 Adm. Hrn’g before Chief Hearing Officer (Imhof’s Testimony) at 250-
51.
55
See Hearing Officer’s Recommendation at 25 (finding that “Sections 1730(b)(1) and 1730(d)
are [the] pertinent” subsections that gave rise to Imhof’s reporting requirements in this matter).
56
24 Del. C. § 1730(b)(1) (“Every person to whom a certificate to practice medicine is issued .
. . has a duty to report to the Board within 30 days: . . . (c) Any reasonably substantiated
incidents involving violence, threat of violence, abuse, or neglect by a person toward any other
person.”). At one point, the hearing officer refers to “24 Del. C. Sec. 1730(b)(1)(b),” but this
appears to be a mis-citation, as that subsection refers to disciplinary action taken by a medical
society against the licensee, while the hearing officer is clearly referencing a subsection
referring to acts of abuse toward another person—i.e., § 1730(b)(1)(c). Hearing Officer’s
Recommendation at 27.
57
Id. § 1730(d) (“Every person to whom a certificate to practice medicine is issued has a duty
to report, within 30 days of the day each such person becomes aware, of the existence of a report
to the Department of Services for Children, Youth and Their Families under Chapter 9 of Title
16 against that person concerning child abuse or neglect or a report to the Division of Health
Care Quality under Chapter 85 of Title 11 against that person concerning adult abuse, neglect,
mistreatment, or financial exploitation.”).
58
Bd. Ord. at 2.
15
The hearing officer’s reliance upon § 1730(d) is problematic for two
reasons. First, § 1731(b)(14) references a failure to report under § 1730(b), not
under § 1730(d). Second, substantial evidence does not support a finding that
there was a failure to report under § 1730(d). A § 1730(d) violation would require
that Imhof was “aware” of the “existence of a report to the Department of Services
for Children, Youth, and Their Families” related to his actions. The hearing
officer, although mentioning that the subsection was “pertinent,” did not point to
the existence of a report to any agency. Without the report, or mention of it, in
the record, it would be impossible to ascertain whether Imhof was “aware” of such
a report. Thus, even though the record supports the fact that there were multiple
charges of endangerment of child welfare alleged,59 Imhof’s awareness of the
conduct related to his children does not equate to awareness of a “report” to a
different agency.
The hearing officer’s reliance upon § 1730(b)(1)(c) is also problematic, but
for different reasons. That subsection required that Imhof report “[a]ny
reasonably substantiated incidents involving violence, threat of violence, abuse,
or neglect by a person toward any other person.”60 The hearing officer concluded
that Imhof’s conduct “constituted ‘abuse’ of his former spouse.”61 Imhof’s
actions, including accessing his then-spouse’s social media accounts without her
permission, spying on her, secretly entering her home and ejaculating on her bed,
and damaging her automobile, are certainly reprehensible for the reasons
explained supra. However, reasonable minds could differ as to whether they
constitute “abuse,” particularly given that none of them involved direct contact
between Imhof and his spouse. 24 Del. C. § 1731(b)(14), however, requires
59
See supra note 47.
60
24 Del. C. § 1730(b)(1)(c).
61
Hearing Officer’s Recommendation at 27.
16
wilfulness, and while the hearing officer specifically found that Imhof’s failure to
report was wilful, the hearing officer failed to discuss the required element of
wilfulness in the context of the meaning of the term “abuse,” which is not defined
under the statute. The Court is concerned that, if Imhof did not consider his
treatment of his spouse to constitute “abuse”—and, again, reasonable minds could
differ on this point—he might legitimately have been unaware of his duty to report
under this provision. The problem is compounded by the fact that, as noted supra,
the Board accepted this recommended legal conclusion of the hearing officer
without any significant explanation or discussion.62
Given the hearing officer’s failure to address the definitional issue noted
above in the context of wilfulness—and the Board’s cursory acceptance of the
hearing officer’s recommendation—meaningful review on this issue by this Court
has been precluded. Therefore, without reversing the Board on this point, the
Court will remand the matter to the Board for further consideration of whether a
wilful failure to report has been established pursuant to 24 Del. C. § 1731(b)(14),63
and to consider whether the discipline imposed should be modified in light of any
additional consideration of these matters by the Board.64
V. CONCLUSION
For the foregoing reasons, the Court affirms the Board’s finding that Imhof
engaged in conduct constituting crimes substantially related to the practice of
62
Bd. Ord. at 2.
63
The Court will leave it to the Board to determine whether additional findings of fact may be
needed on this issue.
64
In this regard, it is apparent from the hearing officer’s recommendation that, under the
Board’s disciplinary guidelines, the potential discipline for the failure to report charge is the
least serious of the three potential violations: for the §1731(b)(2) and § 1731(b)(3) violations,
suspension is a potential disciplinary action, while only a fine and probation are potential
disciplinary actions for a § 1731(b)(14) violation. Hearing Officer’s Recommendation at 28.
17
medicine in violation of 24 Del. C. § 1731(b)(2) and that he engaged in
dishonorable, unethical, or other conduct likely to deceive, defraud, or harm the
public in violation of 24 Del. C. § 1731(b)(3). However, further inquiry by the
Board is needed regarding whether Imhof wilfully failed to report certain conduct
in violation of 24 Del. C. § 1731(b)(14), and whether, as a result of that inquiry,
the discipline imposed should be modified. Therefore, the Board’s decision is
AFFIRMED IN PART, but the matter is REMANDED for further proceedings
consistent with this opinion as follows:
1. With regard to the third alleged violation, the Board will consider
whether there was a wilful failure to report in violation of 24 Del. C. §
1731(b)(14) in light of the fact that “abuse” is not defined in the statute.
In this regard, the Board should consider whether that term could be
open to interpretation, e.g., regarding whether it requires physical
contact between the perpetrator and the victim, and whether and how
any issues of interpretation could impact the required statutory element
of wilfulness. The Board will also determine whether any such inquiry
would require any further evidentiary hearings or supplemental findings
of fact.
2. The Board should also consider whether the discipline previously
imposed should be modified as a result of this inquiry and any further
decisions by the Board following from it.
3. The Board will record any findings and conclusions regarding this
matter in writing to facilitate further review by this Court.
18
4. The Board will submit a supplemental order to this Court consistent with
the above directives within 90 days of the date of this Order.65
Pursuant to the above, jurisdiction is retained by this Court.
IT IS SO ORDERED.
NEP/wjs
Via File & ServeXpress
oc: Prothonotary
cc: Counsel of Record
Delaware Board of Medical Licensure and Discipline (via U.S. mail)
65
Should additional time be needed by the Board for an adequate consideration of this matter
on remand, an appropriate request may be submitted to this Court.
19