Bilski v. Board of Medical Licensure and Discipline of the State of Delaware.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
WILLIAM F. BILSKI, D.O., )
Appellant, ) C. A. No.: N13A-10-005 VLM
)
v.
)
THE BOARD OF MEDICAL )
LICENSURE AND DISCIPLINE )
OF THE STATE OF DELAWARE, )
Appellee. )
OPINION
Submitted: March 26, 2014
Decided: June 30, 2014
Upon Consideration of Appellant’s Appeal of the Decision and Final Public Order
of the Board of Medical Licensure and Discipline of the State of Delaware,
AFFIRMED.
Victor F. Battaglia, Esquire, Biggs and Battaglia, 921 N. Orange Street,
Wilmington, DE 19801, Attorney for Appellant.
Patricia Davis Oliva and Jennifer L. Singh, Deputy Attorneys General, Department
of Justice, 102 W. Water Street, 3rd Floor, Dover, DE 19904, Attorneys for
Appellee.
MEDINILLA, J.
INTRODUCTION
A final order of the Board of Medical Licensure and Discipline of the State
of Delaware (“the Board”) found that Appellant, physician William Bilski D.O.,
(“Dr. Bilski”) acted unprofessionally and violated the Medical Practice Act,
pursuant to 24 Del. C. § 1731(b)(11). This is Dr. Bilski’s appeal pursuant to 24
Del. C. § 1736, 29 Del. C. § 10142, and Superior Court Civil Rule 72. This Court
finds that the Board’s order is supported by substantial evidence and free from
legal error. Therefore, the Board’s order is AFFIRMED.
FACTUAL AND PROCEDURAL HISTORY
On May 23, 2011, the Division of Professional Regulation (“Division”)
received a letter from a concerned parent regarding Dr. Bilski’s controlled
substance prescribing practices. The Division assigned an investigator, Ralph
Kemmerlin (“Kemmerlin”), who subpoenaed records and interviewed Dr. Bilski.
During the course of the investigation, Dr. Bilksi informed Kemmerlin of a second
patient whom Dr. Bilksi suspected had stolen a prescription pad. This prompted
Kemmerlin to open a second investigative complaint, wherein he subpoenaed
additional records and re-interviewed Dr. Bilksi regarding the second patient.
Following the investigation, on February 4, 2013, the Delaware Department
of Justice (“DOJ”) filed a disciplinary complaint with the Board alleging that Dr.
Bilski was guilty of unprofessional conduct. The DOJ specifically alleged that
1
beginning in 2009, while prescribing controlled substances to his patients, Dr.
Bilski failed to document the nature and intensity of his patient’s pain, current and
past pain treatments, underlying or coexisting diseases or conditions, the effects of
his patient’s pain on their physical and psychological functions, objectives to
measure success of controlled substance use over time, and discussions with
patients of the risks and benefits of using controlled substances. 1
The DOJ complaint asserted, in part, that Dr. Bilski’s conduct violated the
Federation of State Medical Boards’ Model Policy for the Use of Controlled
Substances (“Model Policy”), Board Regulation 31, 2 and alleged that his
misconduct constituted a pattern of negligence in the practice of medicine in
violation of 24 Del. C. § 1731(b)(11). On June 3, and 4, 2013, a Division of
Professional Regulation Hearing Officer (“Hearing Officer”) conducted an
evidentiary hearing pursuant to 29 Del. C. § 8735(v)(1)d.
The Hearing Officer heard evidence of deficient medical record keeping
practices related to two patients over the course of two years - collectively
resulting in the sum of more than sixty (60) deficient documentation practices.
1
Complaint at ¶7-10, 14-15, 22.
2
Board Regulation 31 was originally enacted as Board Regulation 30. See Complaint at ¶26e.1.
2
Specifically, from 2009 to 2011, as to the first patient, Dr. Bilski issued monthly
prescriptions including Oxycontin, Lortab, and Soma, for the treatment of pain. 3
Dr. Bilski consistently failed to document physical examinations, 4 any
comprehensive pain assessment, 5 or to indicate any treatment plan outline.6 His
medical records lacked any documentation evincing any doctor/patient discussions
of the risks associated with long-term use, misuse, or drug abuse, and of the pain
management medications as prescribed. 7 His medical records were unclear as to
when prescriptions were issued, when refills were ordered, 8 and at times failed to
identify which medication was being refilled. Dr. Bilski claimed that he was trying
to wean his patient off the medications, but nothing in the records documents such
a plan.9
The medical documentation of Dr. Bilski’s second patient is plagued with
similar deficiencies. Dr. Bilski prescribed Oxycodone and other controlled
substances to manage his patient’s pain from October 2009 to June 2011.10 During
that time, the evidence presented showed that Dr. Bilski did not document any
3
Appellee’s Answering Br. Appendix at 26 and 42.
4
Appellee’s Answering Br. Appendix at 19-21.
5
Appellee’s Answering Br. Appendix at 21-22.
6
Appellee’s Answering Br. Appendix at 24-25.
7
Appellee’s Answering Br. Appendix at 26-27 (Dr. Bilski claimed he did discuss the risks and
benefits, but Kemmerlin did not find any “written evidence”).
8
Appellee’s Answering Br. Appendix at 31-32.
9
Appellee’s Answering Br. Appendix at 56-57.
10
Appellee’s Answering Br. Appendix at 37-38.
3
comprehensive pain evaluation, 11 offer alternative treatment options,12 or make an
appropriate referral to a pain management specialist. 13 He failed to screen for risk
of drug abuse,14 or speak to his patient regarding the risks associated with
prolonged use of controlled substances. 15 This patient’s records, just as with the
first patient’s, are ambiguous as to when medicines were prescribed and refilled. 16
In order to justify asking for an early refill, on several occasions, one patient
merely had to tell Dr. Bilski that prescriptions had only been partially refilled. 17
The testimony included that Dr. Bilski suspected one patient might have been
selling pills or forging prescriptions. 18 Regrettably, the records do not contain any
indication that Dr. Bilski ever did anything about it, including checking with the
pharmacy filling the prescription. 19
Dr. Bilski did not dispute the lack of documentation regarding his patients’
treatment plans. However, he argued for dismissal of the charges based on the
following: (1) Because Board Regulation 31 was not adopted until 2012, and after
the relevant period of conduct, he was not in violation of said regulation, (2) the
Model Policy could not legally set mandatory requirements, and (3) the complaint
11
Appellee’s Answering Br. Appendix at 38.
12
Appellee’s Answering Br. Appendix at 36.
13
Appellee’s Answering Br. Appendix at 36-37
14
Appellee’s Answering Br. Appendix at 37.
15
Appellee’s Answering Br. Appendix at 38.
16
See Appellee’s Answering Br. Appendix at 67-97.
17
Appellee’s Answering Br. Appendix at 89-93.
18
Appellee’s Answering Br. Appendix at 86.
19
Appellee’s Answering Br. Appendix at 89-93.
4
failed to give adequate notice of the charges. 20 These arguments were presented
and considered by the Hearing Officer as well as the Board, and essentially mirror
those put forth in this appeal.
Following approximately eleven hours of hearing, wherein Dr. Bilski was
represented by counsel, the Hearing Officer found a set of facts and made
recommendations to the Board. Specifically, the Hearing Officer issued a ninety
page recommendation on July 10, 2013 in which he recommended the Board find
Dr. Bilski’s conduct rose to the level of misconduct and violated 24 Del. C. §
1731(b)(11):
Misconduct, including but not limited to sexual
misconduct, incompetence, or gross negligence or pattern
of negligence in the practice of medicine or other
profession or occupation regulated under this chapter.
The Hearing Officer recommended the Board discipline Dr. Bilski by
placing his medical license on probation for one year and that he be permitted to
petition to have his probationary period terminated after six months if he could
demonstrate that he had followed Board rules regarding pain management
practices for prescribing controlled substances, completed continuing education
20
By way of background, the Court notes that a large portion of the complaint, hearing and
Hearing Officer’s recommendation focused on Dr. Bilski’s violations of the Model Policy. The
Model Policy, adopted by the Board in 2009, describes conduct related to the distribution of pain
management medication and the documentation of such. In 2012, the Model Policy was enacted
as a formal Board regulation - Regulation 31. The evidence unambiguously shows, and Dr.
Bilski does not dispute, that his documentation practices did not conform to the requirements of
the Model Policy.
5
courses, and transferred care of his pain management patients to another physician
during his probationary period.
Following the Hearing Officer’s recommendation, the parties were provided
with twenty days to submit to the Board for their consideration written argument,
objections or exceptions to the Hearing Officer’s findings of facts and
recommended conclusions of law and discipline. Specifically, Dr. Bilski appeared
through his counsel at a September 10, 2013 meeting to present oral arguments
before the Board. The Board considered Dr. Bilski’s oral and written arguments,
and in its January 7, 2014 Public Order, the Board adopted the facts found by the
Hearing Officer, but
[r]eject[ed] the finding that a violation of [the Model
Policy] equates to per se unprofessional conduct in
violation of 24 Del. C. 1731(b). However, because the
findings of fact indicate that documentation errors
occurred over a period of time, the Board accept[ed] the
finding that Dr. Bilski violated 24 Del. C. 1731(b)(11) in
that his conduct amounted to a pattern of negligence.
The Board adopted the Hearing Officer’s recommended penalty of the
imposition of a one-year probationary period subject to a six month review, but
modified the penalty from the original recommendation that Dr. Bilski transfer his
pain management patients and instead ordered him to submit to a medical records
audit and complete additional continuing education courses in record keeping.
6
Dr. Bilski filed a Notice of Appeal with this Court on October 7, 2013 and
an Opening Brief on January 15, 2014. The Board filed an Answering Brief on
February 5, 2014. Dr. Bilski filed a Reply on February 21, 2014.
STANDARD OF REVIEW
On appeal, this Court determines whether the Board’s decision is supported
by substantial evidence and free from legal error. 21 Substantial evidence is such
relevant evidence that a reasonable mind would accept as adequate to support a
conclusion.22 This Court does not act as the trier of fact, nor does it have authority
to weigh the evidence, decide issues of credibility, or make factual conclusions. 23
In reviewing the record for substantial evidence, the Court must consider the
record in the light most favorable to the party prevailing below. 24 The Court’s
review of conclusions of law is de novo.25 Absent an error of law, the Board’s
decision will not be disturbed where there is substantial evidence to support its
conclusions.26
21
General Motors v. McNemar, 202 A.2d 803, 805 (Del.Super.1964); General Motors Corp. v.
Freeman, 164 A.2d 686, 688 (Del.Super.1960).
22
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del.Super.1994).
23
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del.Super.1965).
24
Benson v. Phoenix Steele, 1992 WL 354033, at *2 (Del Super. Nov. 6, 1992).
25
Reese v. Home Budget Center, 619 A.2d 907 (Del.Super.1992).
26
Dellachiesa v. General Motors Corp., 140 A.2d 137 (Del.Super.1958).
7
DISCUSSION
Dr. Bilski puts forth five arguments in support of reversal: (I) the Board
committed legal error by basing its determination upon its own expertise and not
on evidence in the record, (II) the Board’s decision was not supported by
substantial evidence because no expert testimony was provided at the evidentiary
hearing,27 (III) the Board’s finding that Dr. Bilski’s behavior amounted to a
“pattern” of neglect was not supported by substantial evidence, (IV) the DOJ did
not provide constitutionally sufficient notice of the allegations to Dr. Bilski, and
(V) the Board committed legal error in basing its decision on violations of the 2009
Model Policy. This Court reviews each argument separately and finds them to be
without merit.
I. The Board Did Not Commit Legal Error in Finding that Expert
Testimony was Not Required Pursuant to 18 Del. C. § 6853(e)
Dr. Bilski cites to the statutory authority in 18 Del. C. § 6853(e) which
establishes that “[n]o liability shall be based upon asserted negligence unless
expert medical testimony is presented.” Specifically, he argues that the Board
committed legal error by implicitly ruling that no expert testimony was necessary
to establish standard of care for purposes of their review, and suggests that this is
in violation of 18 Del. C. § 6853(e).
27
Dr. Bilski’s first two arguments are, conceptually, two sides of the same coin. However, since
they are briefed as independent bases for appeal, this Court has addressed them as such.
8
Dr. Bilski seeks to transpose the requirements of “medical negligence” to the
Board’s procedures in interpreting its own statute for disciplinary proceedings. 18
Del. C. § 6853(e) applies to medical negligence as defined in 18 Del. C. § 6801(7):
“Medical negligence” means any tort or breach of
contract based on health care or professional services
rendered, or which should have been rendered, by a
health care provider to a patient. The standard of skill
and care required of every health care provider in
rendering professional services or health care to a patient
shall be that degree of skill and care ordinarily employed
in the same or similar field of medicine as defendant, and
the use of reasonable care and diligence. 28
The Court has, in the past, made clear that the technical requirements of
medical negligence claims are not identical to those of administrative board
claims. 29 The elements of negligence considered by the Board did not involve
claims against tortious or contractual disputes that sought compensable damages
against an injured patient. The parties here did not include patients seeking relief
from Dr. Bilski on theories of medical negligence. This Court agrees that had this
been a medical negligence case, expert opinion would have had to be offered to
establish that the defendant breached the applicable standard of care and that the
28
18 Del. C. § 6801(7) (emphasis added).
29
See Jain v. Del. Vd. Of Nursing, 2013 WL 3389287 (Del. Super. Feb. 13, 2013).
9
breach was a proximate cause of the injury or injuries claimed. 30 However, this is
not a medical negligence case.
Rather, the Board considered claims filed by the DOJ against Dr. Bilski at an
administrative level that are distinguishable from the legal processes of a typical
medical negligence case. While the Board may rely on expert testimony for
matters related to the various licensing issues it is asked to review, Dr. Bilski
provides no authority for the proposition that all Board decisions require expert
testimony in order to establish standard of care. 31
Similarly, Dr. Bilski claims that the Board impermissibly “use[d] its own
institutional expertise to create evidence.”32 Dr. Bilski suggests that because there
was no expert testimony at the evidentiary hearing, the Board must have
necessarily “created” the evidence through its own expertise. This Court disagrees
with Dr. Bilski’s contention. The inference that the Board created such evidence is
unfounded. The Board considered a robust record to accept the findings of the
30
See e.g. Dambro v. Meyer, 974 A.2d 121, 126 (Del. 2009); 18 Del. C. § 6853(e).
31
Dr. Bilski has provided the Court with case law emphasizing the expert testimony requirement
in civil tort contexts. See e.g. Stayton v. Clariant Corp., 2014 WL 28726 (Del. Jan. 2, 2014)
(“when professional negligence is at issue, evidence of the standard of care must come from
expert testimony.”). To be sure, this Court has also reviewed cases provided by Dr. Bilski in
which the Court relied on expert testimony to establish standard of care in reviewing appeals
from the Board. See e.g. Turbitt v. Blue Hen Lines, Inc., 711 A.2d 1214 (Del. 1998) (“the
[Industrial Accident] Board, when presented with uncontroverted expert medical opinion, may
not use its administrative expertise as a basis for rejecting competent medical evidence.”).
32
Opening Br. at 11.
10
Hearing Officer in order to support their decision – Dr. Bilski’s contention that
they had to create evidence is simply not supported by the record.
For the reasons above stated, the Court does not interchange or impose the
statutory requirements of the medical negligence statute to reviews considered by
the Board and rejects Dr. Bilski’s argument that expert testimony at an
administrative level is mandated pursuant to 18 Del. C. § 6853(e).
II. There Was Substantial Evidence to Support the Board’s Decision
In reviewing the factual determinations of the Board, this Court’s analysis is
guided by 29 Del. C. § 10142(d):
The Court, when factual determinations are at issue, shall
take due account of the experience and specialized
competence of the agency and of the purposes of the
basic law under which the agency has acted. 33
Dr. Bilski renews his argument that there was insufficient evidence because
there was no expert testimony in this case. 34 This argument has already been
addressed and rejected by this Court. However, this Court finds that the Board
rightfully accepted the numerous factual findings of Dr. Bilski’s deficient
documentation practices. Beyond the highlighted examples of Dr. Bilski’s careless
record keeping practices, in one telling example, Dr. Bilski admitted while
33
29 Del. C. 10142(d).
34
Opening Br. at 13 (no expert testified so there is no evidence, let alone substantial evidence of
negligence.”).
11
testifying from his own records that he was unsure whether he wrote five separate
prescriptions for a patient during a single office visit in January 2009, or during the
course of multiple undocumented office visits from January to February. 35 In
finding that Dr. Bilski’s conduct violated 24 Del. C. 1731(b)(11), the Board was
well within its capacity to evaluate the evidence.36
III. There was Substantial Evidence to Support the Board’s Finding
of a “Pattern” of Negligence
Dr. Bilski argues that the there was not substantial evidence to support the
Board’s finding that Dr. Bilski’s conduct amounted to a “pattern of negligence in
the practice of medicine” in violation of 24 Del. C. § 1731(11). In support, Dr.
Bilski cites to the Supreme Court of Delaware’s analysis of an alleged “pattern” of
negligence in In re Reardon to suggest there was not enough in this record to find a
“pattern” of negligence. 37
The In re Reardon Court explained:
A pattern may be discerned from two or more
recognizably consistent acts that serve as a predictor of
future misconduct. Whether the acts are recognizably
consistent may depend upon a combination of factors
including, among other things, the temporal proximity of
the acts, the number of acts of misconduct, the number of
35
Appellee’s Answering Br. Appendix at 42.
36
See Turbitt v. Blue Hen Lines, Inc., 711 A.2d 1214, 2126 (1998) (“‘institutional experience’ or
administrative expertise the board possesses may be used as a tool for evaluating evidence but
not as a source for creating evidence.”).
37
See ABA STANDARDS FOR IMPOSING LAWYER SANCTIONS, Standard 4.42 (1986 and
as amended 1992).
12
clients or cases involved, the similarity of the duties
violated and the resulting injuries, and the lawyer's state
of mind. 38
Dr. Bilski argues that “[a]t best the evidence in the record is that [he] did not
abide by the Model Policy with respect to two patients over a narrow period of
time . . . [e]ven if failing the policy is wrong, it is a single wrong, not a pattern.” 39
The Court does not agree with Dr. Bilski that his actions constituted a “single
wrong.”
Dr. Bilski, a professional caregiver, was given licensing privileges in
Delaware to medically care for patients in family medicine with a small percentage
of his practice dedicated to patients with chronic pain issues. The Board
considered facts which demonstrated a pattern of carelessness and disregard in Dr.
Bilski’s record-keeping. Dr. Bilski failed to document physical examinations or
perform comprehensive pain assessments. He did not document his treatment
plans or what, if anything, he communicated to his patients regarding the risks
associated with long-term use of the pain management medications prescribed.
Multiple entries in his records were unclear as to when prescriptions were issued or
refills ordered and, sometimes failed to identify which medications were refilled.
He failed to show comprehensive pain evaluations or alternative treatment options.
Even where there was suspicion of wrongdoing (i.e., sale of drugs or forgery), Dr.
38
In re Reardon, 759 A.2d 568, 577 (Del. 2000).
39
Opening Br. at 14.
13
Bilski’s records do not document the suspicion or indicate an attempt to contact the
system partners, such as the pharmacy, to prevent potential illegal activity.
While it is true that the misconduct may have only involved two patients, the
carelessness and lack of attention to them spanned over the course of two years and
included more than sixty (60) plus specifically identified instances of inadequate
documentation practices. This was more than a single wrong.
For the reasons above, this Court finds that there is substantial evidence to
support the Board’s decision that Dr. Bilski’s conduct amounted to a pattern of
negligence.
IV. Dr. Bilski Received Constitutionally Sufficient Notice
A professional license is a protected property interest, and to comport with
due process the licensee has a right to be heard at a meaningful time and in a
meaningful manner. 40 This requirement mandates notice of charges sufficient for a
respondent to prepare a defense. 41
Dr. Bilski argues that he did not receive proper notice and compares the
notice provided in this case to the insufficient notice in Cain v. Delaware Bd. Of
40
Mullane v. Central Hanover Bank, 339 U.S. 306 (1950); Slawik v. State, 480 A.2d 636, 645
(Del. 1984).
41
Goldberg v. Kelly, 387 U.S. 254 (1970); Cyric W. Cain, P.A. v. Delaware State Bd. of
Accountancy, 1989 WL 135766 (Del. Super. Oct. 3, 1989).
14
Accountancy.42 This Court disagrees with Dr. Bilski’s proposition regarding the
adequacy of his notice.
In Cain, a licensed accountant received a copy of a complaint filed by a
former client, along with notification from the Board of Accountancy that a
hearing would be held. 43 On appeal, the Superior Court held that the complaint in
Cain did not provide adequate notice that Cain’s adherence to GAAP would be at
issue. The Cain Court clearly set out the applicable standard for notice in this type
of hearing:
To be effective, the notice must be such that the
individual to whom it is directed knows what
professional violations are in issue. This does not mean
that a complaint issued by an administrative board must
satisfy the pleading rules of this Court. Nor does this
mean that the complaint and the ultimate holding of the
Board must mesh with precision. A complaint is
sufficient if a reasonable person reading it knows what
conduct and alleged professional responsibilities are at
issue. Where this standard has been met due process is
preserved since the party before the Board has an
adequate opportunity to prepare a defense. 44
42
Cyric W. Cain, P.A. v. Delaware State Bd. of Accountancy, 1989 WL 135766 (Del. Super. Oct.
3, 1989).
43
The former client’s complaint “focused primarily on a fee dispute and charged [Cain] with
unethical and fraudulent conduct . . . it did not allege that [Cain’s] conduct violated any specific
or general provisions of GAAP,” Generally Accepted Accounting Principles. The day after Cain
received the notice, he and the client reached an agreement whereby Cain returned the clients
records and fees in exchange for the withdrawal of the complaint with the Board. Nonetheless,
the Board proceeded with the hearing and ultimately concluded that Cain’s records were not
prepared in accordance with GAAP. See Id.44
Id.15
The complaint here satisfies the standard of notice under Cain. Dr. Bilski
was provided with a DOJ complaint that identifies his failure to properly document
medical charts while prescribing substances. The complaint further states that this
conduct “violated the following provisions of . . . [24 Del. C. §] 1731(b)(11) in that
he engaged in misconduct and . . . a pattern of negligence in the practice of
medicine.”45 Therefore, this Court finds that Dr. Bilski received proper notice.
V. Any Impropriety in the Hearing Officer’s Reliance on the Model
Policy Was Cured by the Board’s Decision
In his final claim, Dr. Bilski argues that the Hearing Officer erred as a matter
of law by concluding that the Model Policy created mandatory requirements. This
Court is not persuaded by this argument. Under appellate review is the Board’s
decision, not the Hearing Officer’s recommendation. While it is true that the
Board is, in general, bound by the findings of fact made by the Hearing Officer,46
in this case, the Board specifically noted that it did “not accept the hearing officer’s
rationale that a violation of the Model Policy prior to its promulgation as a
regulation can act as a per se deviation from the standard of care.” 47 As the Board
rejected this recommendation and determined that Dr. Bilski engaged in
misconduct and a pattern of negligence in the practice of medicine, this Court does
45
Complaint at ¶26(d).
46
29 Del. C. 8735(v)(1)d.
47
Board Order at 3.
16
not consider arguments with respect to the Model Policy and this decision is based
solely on the Board’s final decision.
CONCLUSION
In light of the forgoing, this Court concludes that there was substantial
evidence to support the decision of the Board and that it was free from any errors
of law. Accordingly, it is hereby AFFIRMED. 48
IT IS SO ORDERED.
/s/ Vivian L. Medinilla
Judge Vivian L. Medinilla
cc: Prothonotary
48
Dr. Bilski’s demand for attorney’s fees, premised on the illegality of the Board’s decision is
also denied.
17