Imhof v. Delaware Board of Medical Licensure and Discipline

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: June 1, 2022
Decided: August 22, 2022
ORDER
Upon Appellant’s Appeal from the Decision of the Delaware Board of Medical
Licensure and Discipline following Remand
AFFIRMED
1. The appellant, Kevin A. Imhof (hereinafter “Imhof”), filed this appeal
from an order on remand of the Board of Medical Licensure and Discipline
(hereinafter the “Board”). On remand, the Board was tasked by this Court to
consider a single legal issue that the Court had flagged as unclear in the Board’s
original order. Imhof appeals the Board’s reconsideration of that flagged issue based
upon both 1) the procedure chosen by the Board to consider the remanded issue, and
2) the substance of the Board’s order on remand. The background facts of this action
are set forth in Imhof v. Delaware Board of Medical Licensure and Discipline
(hereinafter Imhof I).1
1
2022 WL 247464, at *1 (Del. Super. Jan. 27, 2022).
1
2. In the Board’s original order dated June 1, 2021 (hereinafter the
“Board’s First Order”), the Board suspended Imhof’s license after finding that he
had engaged in conduct constituting crimes substantially related to the practice of
medicine in violation of 24 Del. C. § 1731(b)(2); that he 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 he had wilfully failed to report
certain conduct in a timely fashion in violation of 24 Del. C. § 1731(b)(14).
3. On January 27, 2022, the Court issued a decision that remanded to the
Board one succinct legal issue, i.e., whether Imhof had wilfully failed to report
conduct in violation of 24 Del. C. § 1731(b)(14). 2 The Court also directed the Board
to consider whether the discipline imposed should be modified in light of the Board’s
further consideration of this issue. Without giving notice to Imhof of its
deliberations, or allowing any legal or substantive argument, the Board met,
deliberated, and, subsequently issued a final order on April 8, 2022 (hereinafter the
“Order on Remand”),3 addressing the issues identified by the Court. The Order on
Remand found that Imhof’s action did not constitute “abuse” and therefore that 24
Del. C. § 1731(b)(14) was not violated; however, the Board did not modify the
discipline originally imposed.4
4. This Court issued a briefing schedule regarding the Order on Remand
on April 14, as it had maintained jurisdiction over the Board’s First Order. In the
briefings, Imhof makes multiple arguments regarding the propriety of the Board’s
Order on Remand. Inter alia, he argues that the “Board made this determination
2
Id. at *8. The hearing officer had concluded that Imhof had wilfully failed to report his own
“abuse” of his former spouse, and the Board had accepted the hearing officer’s recommendation
as to this point without further comment. The Court directed the Board on remand to consider this
finding in light of the fact that “abuse” is not defined in the statute, and the fact that Imhof’s
conduct did not involve any direct contact between himself and his former spouse.
3
See Bd. Order on Remand at 2–3 (D.I. 21, April 8, 2022).
4
Id. at 4–5.
2
without additional hearing, evidence, or argument as to the impact of the lack of a
finding of abuse upon the balance of the case.”5 Moreover, Imhof argues that if “the
Board finds there was no ‘abuse’ as described in the initial petition, to simply adopt
the remaining penalties without more, is improper.”6
5. The Board argues that this Court gave the Board the discretion to
determine whether any further evidentiary hearing was necessary,7 and that the
Board made the determination that “no further factual development is required.”8
The Board does not cite a case that directly supports this proposition, but does point
to prior decisions of this Court, in instances where a remand was ordered, that
explicitly state when a new hearing is required.9 Thus, the Board’s position can be
summed up by the proposition that the Court can grant discretion to the Board to
determine whether an additional hearing is necessary.10
6. When reviewing the decision of an administrative board, this Court
must determine whether the board’s findings are supported by substantial evidence
and are “free from legal error.”11 Substantial evidence is “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.”12 Questions
of law are reviewed de novo.13
5
Imhof’s Second Opening Br. at 5 (D.I. 26, May 19, 2022).
6
Id. at 6.
7
The Board points to the following language from Imhof I: “The Board will also determine whether
any such inquiry would require any further evidentiary hearings or supplemental findings of fact.”
Bd.’s Answering Br. at 8 (D.I. 27, May 19, 2022) (quoting Imhof I, 2022 WL 247464, at *8).
8
Id. (quoting Order on Remand at 2).
9
Id. at 9 (citing multiple cases that explicitly direct the Board to conduct a new hearing).
10
Id. at 8–10.
11
Optima Cleaning Sys. v. Unemployment Ins. Appeal Bd., 2010 WL 5307981, at *2 (Del. Super.
Dec. 7, 2010).
12
Id. (citing Histed v. E.I. DuPont de Nemours & Co., 621 A.2d 340, 342 (Del. 1993) (internal
quotations omitted)).
13
Person-Gaines v. Pepco Holdings, 981 A.2d 1159, 1161 (Del. 2009).
3
7. At the outset, Imhof makes arguments that are beyond the scope of
remand, and the Court will not address the propriety of the arguments, as they deal
with issues that have already been decided in Imhof I.14 However, the most pertinent
subject that both parties address is whether Imhof should have had the opportunity
to present evidence and make legal argument regarding the third charge and its
weight in shaping the discipline imposed.
8. This Court’s decision in Potter v. State Department of Corrections [sic]
is instructive.15 There, the Court found that when a board concludes that “the
existing record, made up of largely uncontroverted factual evidence, provide[s] all
the information it need[s] to reach the decision requested by this Court [on remand],”
it need not hold an evidentiary hearing or give notice to the parties of its deliberative
meeting.16 In Potter, as here, the parties had previously participated in a hearing in
accordance with the requirements of due process, and the board had been directed to
consider a single legal issue identified by the reviewing court. Therefore, the Potter
Court held that the appellant’s claim that the board had “reach[ed] a decision after
remand without providing notice or additional opportunity to be heard on the issue”
was not meritorious.17
9. Imhof’s second opening brief is devoid of any case law that would
challenge the persuasive reasoning of Potter and leaves the Court with no legal basis
14
Imhof argues that the entire matter is “ripe for dismissal” because without a “finding of abuse .
. . the underlying petition for discipline must fall as a house of cards.” Imhof’s Opening Br. at 7,
5. This Court has previously found that the Board’s findings as to the first two violations were
supported by substantial evidence and free from legal error, and thus arguments regarding those
violations are not germane. See infra n.22.
15
2013 WL 1437694 (Del. Super. Apr. 8, 2013), aff'd sub nom. Potter v. State Dep't of Correction,
80 A.3d 961 (Del. 2013) (TABLE).
16
Id. at *3.
17
Id. at *4.
4
to consider this issue differently.18 Thus, the Court finds that due process does not
require an additional hearing where the Court has granted discretion to the Board on
remand regarding whether it needs to conduct an evidentiary hearing on a sole legal
issue, and when the parties have already had an opportunity to present evidence and
argument that comported with the requirements of due process and the
Administrative Procedure Act (APA).19 Specific to this case, Imhof had an
opportunity, and, in fact, did make substantive argument at the original hearings on
both the legal issues—subsequently partially found in his favor on remand—and the
disciplinary issues, in front of both the Hearing Officer20 and the Board.21
10. Notably, the legal issue identified by this Court did not require
additional factual development for the Board to render a decision. The evidence had
been thoroughly described by the Hearing Officer, and, for the most part, was
derived directly from Imhof’s own admissions. Thus, all that was left for the Board
to decide on remand was whether such actions by Imhof, already in the record,
constituted abuse under the statute. The Board, upon consideration, found that
Imhof’s actions directed towards his former spouse did not rise to a level that would
constitute abuse, and consequently that Imhof did not violate 24 Del. C. §
18
In fact, Imhof’s opening brief cites no case authority as to any point. See Imhof’s Second Op.
Br. at 1–8. Moreover, Imhof’s subsequent letter to the Court indicated that “no Reply Brief will
be filed[.]” (Ltr. to Ct., June 26, 2022, D.I. 28).
19
This ruling does not extend to Delaware administrative boards (e.g., the Industrial Accident
Board) that are governed by statutes that explicitly state whether a hearing is required on remand.
See, e.g., State v. Steen, 719 A.2d 930, 935 (Del. 1998) (holding that 19 Del.C. § 2350(b)—the
statute governing this Court’s authority when reviewing the Industrial Accident Board’s (IAB)
orders—requires that on remand the IAB must conduct a hearing that enables the parties to present
“additional evidence and legal argument” regarding the legal issues noted by the reviewing court
(emphasis in original)).
20
Tr. of Administrative Hr’g before Chief Hr’g Officer at 268–278 (Tab 4) (Feb. 8, 2021)
(discussing in great length the substantive legal issues and aggravating factors, or lack thereof, and
mitigating factors to be accounted for in formulating the discipline).
21
Tr. of Proceedings before Bd. at 4–8 (Tab 2) (May 4, 2021) (discussing the legal and disciplinary
exceptions to the Hearing Officer’s Recommendations to the Board.).
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1731(b)(14). Accordingly, Imhof faced no prejudice from his lack of an opportunity
to make legal argument, as the Board made an exclusively legal determination in his
favor.22
11. Therefore, the only due process violation that can be alleged must relate
to the Board’s decision not to allow argument related to Imhof’s discipline.
However, Imhof had already made extensive argument regarding the mitigating and
aggravating factors the Board should weigh in imposing the proper discipline as to
all the violations. As mentioned supra, and in step with Potter, the Court does not
find that additional argument was either warranted or required by considerations of
due process. Additionally, the Court does not find that Imhof suffered any prejudice
because he was denied the opportunity to rehash legal arguments on this issue.
12. As to the discipline itself, an “administrative agency's choice of penalty
is a matter of discretion to be exercised solely by the agency as long as it is based on
substantial evidence and within its statutory authority.”23 In Imhof I, the Court found
that the two violations at issue here were supported by substantial evidence.24 Thus,
in reviewing discipline where the underlying violations are supported by substantial
evidence and within the statutory authority of the Board, the question for this Court
22
An alleged due process violation requires a showing of prejudice. Bailey v. State, 363 A.2d 312,
317 (Del. 1976) (requiring a demonstration by a defendant of “actual or inherent prejudice” in
order to find that a due process violation occurred). In rare cases there is a presumption of
prejudice. See Hughes v. State, 490 A.2d 1034, 1046 (Del. 1985) (finding that only in “egregious
circumstances” does “the law raise[] a presumption of prejudice, and consequently, a violation of
due process”).
23
Johns v. Council of Delaware Ass'n of Professional Engineers, 2004 WL 1790119, at *4 (Del.
Super. July 27, 2004) (citing Warmouth v. Delaware State Bd. of Examiners in Optometry, 514
A.2d 1119, 1123 (Del. Super. 1985), aff'd, 511 A.2d 1 (Del. 1986) (TABLE)).
24
Imhof I, 2022 WL 247464, at *5 (affirming 24 Del. C. § 1731(b)(2) violation); id. at *6 (“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.”).
6
is “whether [the] punishment is so disproportionate to the offense in light of all of
the circumstances as to be shocking to one's sense of fairness.”25
13. As mentioned in dicta by the Court in Imhof I, “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.”26 Moreover, the discipline
imposed on Imhof is within the disciplinary guidelines for the § 1731(b)(2) and §
1731(b)(3) violations. Thus, it cannot be said that the punishment is “shocking to
one’s sense of fairness” when the disciplinary guidelines applicable to the two
violations that were upheld support the punishment applied in the Board’s First
Order and confirmed in the Order on Remand.
WHEREFORE, for the reasons explained above, the Board’s Order on
Remand is supported by substantial evidence and is free from legal error. The Board
acted within its discretion, as authorized by instruction from this Court, not to
conduct further evidentiary hearings or legal argument, and the Board imposed a
discipline within its statutory authority. Accordingly, the Board’s Order on Remand
is AFFIRMED.
IT IS SO ORDERED.
25
Johns, 2004 WL 1790119, at *4 (citing Warmouth, 514 A.2d at 1123).
26
Imhof I, 2022 WL 247464, at *8 n.64.
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