Milligan, D.O. v. Delaware Board of Medical Licensure & Discipline ( 2023 )


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  •          IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    JACK MILLIGAN, D.O.                         )
    )
    Appellant,                    )
    )
    v.                                          )    C.A. No. K22A-12-001 RLG
    )
    DELAWARE BOARD OF MEDICAL                   )
    LICENSURE & DISCIPLINE,                     )
    )
    Appellee.                     )
    Submitted: September 8, 2023
    Decided: December 20, 2023
    ORDER
    Upon Appeal from the Delaware Board of Medical Licensure & Discipline –
    AFFIRMED.
    James E. Liguori, Esquire, Liguori & Morris, Dover, Delaware. Attorney for
    Appellant.
    Kemba Lydia-Moore, Esquire, Deputy Attorney General, Dover, Delaware.
    Attorney for Appellee.
    GREEN-STREETT, J.
    1
    Dr. Jack Milligan appeals a final order of the Board of Medical Licensure and
    Discipline for the State of Delaware (the “Board”). The Board found that Dr.
    Milligan violated several state statutes and board regulations, and that he engaged in
    sexual misconduct with a patient.1 The Board’s Order suspended Dr. Milligan’s
    medical license for two years, and imposed other penalties the Board deemed
    appropriate.2 Dr. Milligan’s appeal argues that the Board violated his right to due
    process because the Chief Hearing Officer allowed the presentation of evidence
    regarding an alleged incident that occurred over 20 years ago.3 The Court finds that
    the Board’s Order did not give weight to the dated incident; is supported by
    substantial evidence; and lacks legal error.          Therefore, the Board’s Order is
    AFFIRMED.
    I.    FACTUAL AND PROCEDURAL BACKGROUND
    A.         Factual Background
    Dr. Milligan earned his Delaware medical license on February 25, 2000.4
    Over the course of his licensure, his practice largely focused on internal medicine
    1
    Delaware Board of Medical Licensure and Discipline Final Order (the “Order”) at 12 (Dec. 5,
    2022).
    2
    Id. at 13-15.
    3
    Appellant’s Opening Br. at 24-28.
    4
    Id. at 1.
    2
    and addiction treatment.5 Patient G.B. purportedly treated with Dr. Milligan from
    May 2000 until October 2000.6                 G.B. alleges that Dr. Milligan behaved
    inappropriately toward her at an office visit that occurred on or about October 5,
    2000.7 She contends that, at the end of her visit, Dr. Milligan exposed himself to her
    before grabbing her and forcing her hand in the direction of his penis.8 G.B. resisted
    Dr. Milligan, told him “no,” and pulled away.9 Dr. Milligan advanced upon G.B.
    again, at which time she immediately left his office to report the incident.10
    G.B. does not recall why she originally went to visit Dr. Milligan or where she
    reported the incident.11 G.B. never returned to Dr. Milligan’s office after October
    2000.12 Dr. Milligan does not recall ever treating G.B., and maintains that he has no
    record of her visiting his office at any time.13
    5
    Id.
    6
    App. to Appellant’s Opening Br. at A17.
    7
    Id.
    8
    Id. at A25.
    9
    Id.
    10
    Id.
    11
    Id. at A25-26.
    12
    Id. at A25.
    13
    Id. at A38.
    3
    Patient S.C. first visited Dr. Milligan’s office as a patient sometime in 2007.14
    She began treating with Dr. Milligan for fatigue and pain. Dr. Milligan prescribed
    her several medications to treat her symptoms.15 She described her first few visits
    with Dr. Milligan as routine.16 After her third visit, Dr. Milligan asked S.C. to come
    by his medical office after hours to “discuss divorce.”17 S.C. went to Dr. Milligan’s
    office as requested.18 S.C. testified that, at the end of their discussion, Dr. Milligan
    “slammed” her against a wall, attempted to kiss her, put his hand inside of her bra,
    and pushed against her.19 S.C. pushed him away, at which time Dr. Milligan
    apologized.20 S.C. accepted Dr. Milligan’s apology, and again visited his office after
    hours.21 At S.C.’s next after-hours visit, sex occurred between S.C. and Dr.
    Milligan.22
    14
    Id. at A27.
    15
    Id.
    16
    Id. at A28.
    17
    Id.
    18
    Id.
    19
    Id.
    20
    Id. at A28-29.
    21
    Id. at A 29-30.
    22
    Id. at A30 (Although both S.C. and Dr. Milligan agree that they engaged in a consensual sexual
    relationship thereafter, they disagree about the nature of their initial sexual encounter. S.C.
    testified that Dr. Milligan sexually assaulted her. Dr. Milligan maintains that the sexual
    relationship was consensual at its commencement.); see also A40.
    4
    S.C. continued to visit Dr. Milligan after hours. At each visit, S.C. and Dr.
    Milligan engaged in sexual activity before Dr. Milligan would write her
    prescriptions.23 This relationship intermittently continued from 2007 until 2015.24
    During that time, S.C. and Dr. Milligan also exchanged sexually explicit text
    messages.25 S.C.’s sexual relationship with Dr. Milligan ended in 2015 after a series
    of surgeries left her in a “bad physical way.”26 S.C. attempted to get a prescription
    from Dr. Milligan again in 2018, but Dr. Milligan refused because S.C. was unable
    to visit his office.27
    Dr. Milligan does not dispute that he engaged in a consensual sexual
    relationship with S.C. from 2007 until 2015.28 He also admitted to prescribing her
    narcotics, including painkillers, without proper documentation.29 He agreed he did
    not follow proper procedure when writing prescriptions for S.C.30 Dr. Milligan
    23
    Id. at A31.
    24
    Id.
    25
    Id.
    26
    Id. at A32.
    27
    Id.
    28
    Id. at A40.
    29
    Id.
    30
    Id.
    5
    further agreed he did not properly consult S.C.’s medical charts before writing her
    prescriptions.31 S.C. reported the incidents with Dr. Milligan to the Dover Police
    Department in January 2021.32
    B.        Procedural Background
    The State filed a complaint (the “Complaint”) against Dr. Milligan on October
    19, 2021.33 The Complaint focused on Dr. Milligan’s treatment of two patients, S.C.
    and G.B.34 The State filed an amended complaint (the “Amended Complaint”) on
    May 26, 2022.35 The Amended Complaint retracted several allegations made in the
    original Complaint, but otherwise contained the same information.36
    Before the matter went to a hearing, Dr. Milligan made several applications
    with regard to G.B. First, Dr. Milligan wished to depose G.B. Alternatively, Dr.
    Milligan posited that any allegations related to G.B. should be barred by the doctrine
    of laches.37 G.B.’s allegations against Dr. Milligan stemmed from a single visit to
    31
    Id. at A41-42.
    32
    Id. at A33.
    33
    App. to Appellant’s Opening Br. at A10.
    34
    Id. at A7-8.
    35
    Id. at A19.
    36
    Id. at A16-19.
    37
    Appellee’s Answering Br. at 3-4.
    6
    Dr. Milligan’s office that occurred 20 years prior to the filing of the Amended
    Complaint.38 Dr. Milligan argued that too much time had passed for him to have full
    access to any documentation of the incident.39 He contended that, because the State
    was aware of G.B.’s allegations shortly after the alleged incident occurred, the
    doctrine of laches should bar G.B.’s allegations.40 The Hearing Officer denied both
    of Dr. Milligan’s requests.41
    The Hearing Officer conducted a hearing regarding the Amended Complaint
    against Dr. Milligan on May 25, 2022.42 Dr. Milligan again requested that any
    allegations related to G.B. be dismissed.43 The Hearing Officer declined to dismiss
    any of the allegations related to G.B.44              The Hearing Officer determined the
    allegations made by both patients were credible, and found that Dr. Milligan violated
    several regulations regarding professional conduct.45
    38
    Appellant’s Opening Br. at 9.
    39
    Id.
    40
    Id. at 25.
    41
    Id.
    42
    Id. at 5.
    43
    Id.
    44
    Id. at 6.
    45
    App. to Appellant’s Opening Br. at A78-83.
    7
    The Hearing Officer issued a recommendation to the Board on July 6, 2022.46
    That recommendation included findings of fact, conclusions of law, and proposals
    for discipline.47        The Hearing Officer concluded that Dr. Milligan committed
    violations regarding both patient G.B. and patient S.C.48 The Hearing Officer
    recommended Dr. Milligan’s license be suspended for one year; that he complete 18
    hours of continuing medical education; that, upon reinstatement of his medical
    license, a probationary period of three years be imposed; that he only be permitted
    to treat female patients in the presence of a third party; and that a $5,000 fine be
    levied.49
    On November 1, 2022, the parties presented oral argument before the Board.50
    On December 5, 2022, the Board issued its Order, which it based solely on the
    allegations of patient S.C.51          The Board expressly stated that the allegations
    regarding patient G.B. did not factor into its deliberation or decision.52 The Board
    46
    See App. to Appellant’s Opening Br. at A20-85.
    47
    Appellee’s Answering Br. at 6.
    48
    App. to Appellant’s Opening Br. at A57-70.
    49
    Id. at A84-85.
    50
    Appellee’s Answering Br. at 7.
    51
    Appellant’s Ex. 1 at 8.
    52
    Id.
    8
    declined to adopt the Hearing Officer’s recommended discipline, and instead
    imposed more severe sanctions.53 Those sanctions included a two-year suspension
    of Dr. Milligan’s license, as well as other terms and conditions for his potential
    reinstatement.54 Dr. Milligan filed his appeal to the Board’s Order on December 8,
    2022.55 Dr. Milligan also filed a Motion to Stay the Final Order of the Board of
    Medical Licensure and Discipline, which this Court denied.56
    II.    STANDARD OF REVIEW
    29 Del. C. § 10142 governs this Court’s review of the Board’s decision. “Any
    party against whom a case decision has been decided may appeal such decision to
    the [Superior] Court.”57 The Court reviews the record and determines if the Board’s
    decision “was supported by substantial evidence on the record” and free from legal
    error.58 “Unless the [B]oard erred as a matter of law, did not support its decision by
    substantial evidence, or abused its discretion, the Court will uphold the [B]oard’s
    53
    Id. at 13.
    54
    Id. at 13-14.
    55
    Appellant’s Opening Br. at 3.
    Milligan v. Delaware Bd. of Med. Licensure & Discipline, 
    2023 WL 3726637
    , at *2 (Del. Super.
    56
    May 26, 2023).
    57
    29 Del. C. § 10142(a).
    58
    29 Del. C. § 10142(d).
    9
    decision.”59 “Substantial evidence is evidence that would lead a reasonable mind to
    support a conclusion.”60 “The Court is not the trier of fact and does not have the
    authority to weigh the evidence or make its own factual findings.”61 This Court
    reviews “the Board’s decision, not the Hearing Officer’s recommendation.”62 The
    Court reviews questions of law de novo.63
    III.   DISCUSSION
    Dr. Milligan’s appeal to this Court almost exclusively focuses on the fact-
    finding and legal shortcomings of the Hearing Officer. The Delaware Supreme
    Court has held that “the challenged findings of [a] Hearing Officer do not provide
    [an appellant] a basis for relief.”64 While the Board may be bound by a Hearing
    Officer’s findings of fact, the Board retains “the discretion to consider a party’s
    exceptions as to conclusions of law and recommended penalties.”65 The Board
    59
    Cooper v. Delaware Bd. of Nursing, 
    2021 WL 754306
    , at *3 (Del. Super. Feb. 26, 2021), aff'd,
    
    264 A.3d 214
     (Del. 2021) (citing Eckeard v. NPC Int'l, Inc., 
    2012 WL 5355628
    , at *2 (Del. Super.
    Oct. 17, 2012)).
    60
    
    Id.
     (citing Olney v. Cooch, 
    425 A.2d 610
    , 614 (Del. 1981)).
    61
    Villabona v. Bd. of Med. Prac. of State, at *2–3 (Del. Super. Apr. 28, 2004), aff'd, 
    858 A.2d 961
    (Del. 2004) (citing Johnson v. Chrysler Corp., 
    213 A.2d 64
    , 66 (1965)).
    62
    Bilski v. Bd. of Med. Licensure & Discipline of State, 
    2014 WL 3032703
    , at *7 (Del. Super.
    June 30, 2014), aff'd, 
    115 A.3d 1214
     (Del. 2015).
    63
    Villabona, 
    2004 WL 2827918
    , at *2.
    64
    Gala v. Bullock, 
    250 A.3d 52
    , 66 (Del. 2021).
    65
    
    Id.
    10
    unequivocally and expressly chose to disregard any portion of the Hearing Officer’s
    recommendation that dealt with G.B. With that express disavowal, the Board cured
    any legal error. Consequently, Dr. Milligan presents no reviewable arguments on
    appeal.
    Dr. Milligan first argues that the Hearing Officer committed legal error by
    refusing to apply the doctrine of laches to bar any of patient G.B.’s allegations.66
    The Board explicitly stated, however, that those allegations did not factor into its
    decision.67 By refusing to adopt any recommendation made by the Hearing Officer
    regarding patient G.B., the Board “cured any legal error resulting therefrom.”68 This
    Court must limit its review to the Board’s Order, and not any recommendation made
    by the Hearing Officer which the Board rejected.69 Because Dr. Milligan’s first
    argument on appeal centers around an issue that only pertains to the Hearing
    Officer’s recommendation, and not the Board’s Order, this Court will not consider
    Dr. Milligan’s first argument.
    66
    Appellant’s Opening Br. at 24-25.
    67
    Appellant’s Ex. 1 at 8 (“The 22 year old allegations as to Patient D.B. [sic] did not factor into
    deliberations and did not form a basis for the Board’s decision.”).
    68
    Gala, 250 A.3d at 66.
    69
    Bilski, 
    2014 WL 3032703
    , at *7.
    11
    Dr. Milligan next argues that the Hearing Officer’s inclusion of patient G.B.’s
    allegations in the record deprived Dr. Milligan of due process. 70 Dr. Milligan
    contends that these allegations impermissibly “tainted the entire proceeding.”71 Dr.
    Milligan submits that the Board’s decision to disregard the allegations pertaining to
    patient G.B. “demonstrates that these allegations were simply unreliable, and should
    not have been considered by the Chief Hearing Officer.”72 Again, Dr. Milligan’s
    appeal must be limited to the Board’s Order, not the conduct or decision making of
    the Hearing Officer.73
    Dr. Milligan posits that, by merely allowing the Board to consider patient
    G.B.’s allegations, the Hearing Officer created an incurable violation of due
    process.74 Dr. Milligan compares the Board to a jury, and argues that allowing the
    Board to consider G.B.’s “unreliable, decades-old allegations tainted the entire
    proceeding[,] and amounted to a denial of due process.”75 Dr. Milligan asserts that
    the Board was unable to disregard the Hearing Officer’s findings of fact and consider
    70
    Appellant’s Opening Br. at 29.
    71
    
    Id.
    72
    Id. at 30.
    73
    See Bilski, 
    2014 WL 3032703
    , at *7.
    74
    Appellant’s Opening Br. at 29.
    75
    
    Id.
    12
    S.C.’s allegations without the inherent bias created by the inclusion of G.B.’s
    allegations.76 Yet, unlike the metaphorical jury alluded to in Dr. Milligan’s written
    submission, the Board can cure errors made by the Hearing Officer by declining to
    adopt the Hearing Officer’s recommendations.77 By explicitly disregarding G.B.’s
    allegations, the Board cured any error made by the Hearing Officer related to G.B.’s
    allegations.78
    In his appeal, Dr. Milligan does not dispute any part of the Board’s Order
    related to the allegations of patient S.C. The Board based its findings and Order
    entirely on those allegations.79 Because Dr. Milligan does not dispute the actual
    basis of the Board’s Order, the Order must be affirmed if the Board relied on
    substantial evidence and the Court finds the Order free from legal error.80 As no
    argument or appeal was proffered with regard to the substantive basis of the Board’s
    decision, the Court finds the Order is supported by substantial evidence and free
    from legal error.
    76
    
    Id.
    77
    Gala, 250 A.3d at 66.
    78
    Bilski, 
    2014 WL 3032703
    , at *7.
    79
    Appellant’s Ex. 1 at 8.
    80
    Bilski, 
    2014 WL 3032703
    , at *7.
    13
    IV.   CONCLUSION
    Accordingly, the Board’s Order must be upheld.          Dr. Milligan almost
    exclusively contests decisions made by the Hearing Officer in this matter. The Board
    expressly rejected much of the Hearing Officer’s recommendation. The Hearing
    Officer’s decision falls outside this Court’s scope of review on appeal. The Board’s
    Order is hereby AFFIRMED.
    IT IS SO ORDERED.
    14
    

Document Info

Docket Number: K22A-12-001 RLG

Judges: Green-Streett J.

Filed Date: 12/20/2023

Precedential Status: Precedential

Modified Date: 12/21/2023