IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

NIHAR BHAVESH GALA, M.D.,
Appellant,
V.

DELAWARE BOARD OF MEDICAL
LICENSURE AND DISCIPLINE,

Appellee.

NIHAR BHAVESH GALA, M.D.,
Appellant,
Vv.

JEFFREY W. BULLOCK, in his official
capacity as SECRETARY OF STATE,

Appellee.

C. A. No.::

C. A. No::

Submitted: April 14, 2020
Decided: May 1, 2020

S19A-05-002 CAK

S19A-06-002 ESB

On Appeal from final Orders of the Delaware Board of Medical Licensure and
Discipline and the Delaware Secretary of State issued on June 4, 2019 and June 18,
2019, Respectively

AFFIRMED
MEMORANDUM OPINION AND ORDER

Benjamin A. Schwartz, Esquire, and Gwendolyn Osborn-Gustavson, Esquire,
Schwartz & Schwartz, Attorneys at Law, P.A., 1140 South State Street, Dover DE
19901, Attorneys for Appellant

Patricia A. Davis, Esquire, Delaware Deputy State Solicitor, 102 West Water Street,
Dover, DE 19904, Attorney for Appellee

KARSNITZ, J.

PROCEDURAL BACKGROUND

Appellees are the Delaware Board of Medical Licensure and Discipline (the
“Board”’) and Jeffrey W. Bullock, in his official capacity as the Delaware Secretary
of State (the “Secretary”). The Delaware General Assembly has charged the Board
with regulating the practice of medicine in Delaware in order to protect the public.
The Board was created as “the State’s supervisory, regulatory, and disciplinary
body for the practice of medicine.”'! The Board’s statute requires that it discipline
licensed medical doctors for unprofessional conduct.

The Delaware General Assembly has charged the Secretary with regulating
the registration and control of the manufacture, distribution and dispensing of
controlled substances within Delaware.* In order to lawfully write prescriptions

for controlled substances, Delaware physicians must obtain a controlled substance

 

124 Del. C. §1710(a).
2 16 Del. C. $4731.
registration (“CSR”) from the Secretary. The Secretary, after due notice and a
hearing, may limit, suspend, fine or revoke the registration of any prescriber who
has violated certain statutory requirements.

In October of 2018, the Delaware Department of Justice (“DOJ”) filed
disciplinary complaints against Appellant, Dr. Nihar Bhavesh Gala (“Dr. Gala”), a
Board-licensed Delaware physician and controlled substances registrant’ since
2015, with the Board, the Secretary and the Secretary’s designee, the State of
Delaware Controlled Substances Advisory Committee (the “Committee”).° The DOJ
complaint filed with the Board alleged that Dr. Gala violated six Delaware
medical profession statutes® and numerous Board regulations.’ The DOJ complaint
filed with the Committee and the Secretary alleged that Dr. Gala had violated four

controlled substances statutes.» To summarize, the State alleged that Dr. Gala

 

316 Del. C. § 4733.

* CSR No. DR-0010935.

> A-1. References to the Appendix to Appellant’s Opening Brief on Appeal will be by bates stamp
number beginning with the prefix “A-.”

® The use of any fraudulent, deceitful, dishonest, or unethical practice in connection with the
practice of medicine under 24 Del. C. § 1731(b)(1); conduct that would constitute a crime
substantially related to the practice of medicine under 24 Del. C. §1731(b)(2); unethical or
other conduct likely to deceive, defraud or harm the public under 24 Del. C. § 1731(b)(3); the
use, distribution or issue of prescriptions for a dangerous or narcotic drug for other than a
therapeutic or diagnostic purpose under 24 Del. C. §1731(b)(6); any pattern of negligence in the
practice of medicine under 24 Del. C. §1731(b)(11); and, a violation of Board regulations which
more probably than not will harm or injure the public or an individual under 24 Del. C.
§1731(b)(17).

™ Bd. Reg. 8.0 et seq.; Bd. Reg. 18.0 ef seq.

* Failure to maintain effective controls against diversion of controlled substances into other than
legitimate medical, scientific or industrial channels under 16 Del. C. § 4735(b)(1); failure to
comply with applicable federal, state or local law under 16 Del. C. §4735(b)(2); violation
prescribed controlled substances to a patient without proper evaluation, monitoring
or documentation in connection with the care of that patient, and that he prescribed
controlled substances for that patient in exchange for an inappropriate sexual
relationship with the patient.

Since the complaints arose from a common nucleus of operative fact, they
were consolidated for purposes of an administrative hearing by the Division of
Professional Regulation (the “Division”) under the Delaware Administrative Procedure
Act (““APA”).? After a pre-hearing conference on March 5, 2019, the administrative
hearing on the complaints was held on March 11-15, 2019, and the hearing officer
(the “Hearing Officer”) issued separate written recommendations to the Board and
to the Committee and the Secretary on April 12, 2019 and April 18, 2019,
respectively.'° Dr. Gala filed exceptions to the recommendations of the Hearing
Officer with the Board and with the Committee and the Secretary on May 1, 2019
and May 6, 2019, respectively.!'

The Board deliberated on the Hearing Officer’s recommendations and Dr.

Gala’s exceptions on May 7, 2019 and issued its final order permanently revoking

 

of a rule of the Secretary related to controlled substances under 16 Del C. § 4735(b)(6); and,
engaging in any conduct the Secretary finds to be inconsistent with the public interest under 16 Del.
C. § 4735(b)(8).

9 A-3,

'° A-1 to A-131; A-132 to A-256,

l A-257; A276.
Dr. Gala’s medical license on June 4, 2019.'* The Committee deliberated on the
Hearing Officer’s recommendations and Dr. Gala’s exceptions on May 22, 2019
and issued a recommendation to the Secretary that Dr. Gala’s CSR be revoked."
On June 18, 2019, the Secretary revoked Dr. Gala’s CSR.!4

On May 28, 2019 and June 24, 2019, respectively, Dr. Gala filed two appeals
with this Court from the final order of the Board and the Secretary’s revocation of
his CSR (collectively, the “Orders”). On July 24, 2019, I consolidated the two
appeals for purposes of briefing and argument. Appellant filed his Opening Brief
challenging the Orders on October 31, 2019. Appellees filed their Answering Brief
on December 2, 2019. Appellant filed his Reply Brief on December 15, 2019. I
heard oral argument from the parties on April 14, 2020. For the reasons set forth
below, the Orders are AFFIRMED

JURISDICTION AND STANDARD OF REVIEW

Following the enactment of HB 459 by the 145th General Assembly in 2010,
a new administrative hearing process was created whereby a Division hearing
officer could conduct physicians’ disciplinary hearings.'> Pursuant to the newly
enacted statute, hearing officers are empowered to:

... conduct hearings, including any evidentiary hearings. The testimony
or evidence so taken or received shall have the same force and effect as

 

'2 4.280 to A-287.

13 A288.

4 4-288 to A-292.

'5 29 Del. C. § 8735(v)(1)a; 77 Del. Laws, c. 325, §§ 23-26 (2010).

4
if taken or received by the board or commission. Upon completion of
such hearing or the taking of such testimony and evidence, the hearing
officer shall submit to the board or commission findings and
recommendations thereon. The findings of fact made by a hearing
officer on a complaint are binding upon the board or commission.
The board or commission may not consider additional evidence.
When the proposed order is submitted to the board or commission, a
copy shall be delivered to each of the other parties, who shall have
20 days to submit written exceptions, comments and arguments
concerning the conclusions of law and recommended penalty. The
board or commission shall make its final decision to affirm or modify
the hearing officer’s recommended conclusions of law and proposed
sanctions based upon the written record. [Emphasis supplied.]!®

Three years later, the Secretary’s enabling statute regarding his regulation of
controlled substance registrants was also amended, making clear that investigations
would be conducted by the Division pursuant to the same statute, and that hearings
involving the discipline of controlled substance registrants would be conducted
pursuant to the APA.!’

It is clear from the enabling legislation that both the Board and the Secretary
were bound by the Hearing Officer’s findings of fact and could not receive additional
evidence. However, they could — and in fact did — reject modify or affirm the
Hearing Officer’s conclusions of law and recommended sanctions.

Ihave jurisdiction to entertain an appeal from final administrative orders of

the Board and the Secretary under the Delaware Administrative Procedures Act

 

'6 29 Del. C. § 8735(v)(1)d.
'716 Del. C. 8§ 4735(a) & 4736(a); 79 Del. Laws, c. 164, § 1 (2013).
(“APA”).'§ On appeal from their Orders, I must determine whether the decision is
supported by “substantial evidence” and the agency “made no errors of law.”!°
Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.””° I must review the record in a manner “most
favorable to the prevailing party below;”?' i.e., the Board and the Secretary. I have
neither weighed the evidence myself nor made my own factual findings; rather, I have
carefully reviewed the record to determine whether the evidence therein is adequate
to support the Board’s and the Secretary’s factual findings.”

I have also carefully reviewed the record to determine whether the Board and
the Secretary could have “fairly and reasonably” reached their conclusions.’ “It
is a low standard to affirm and a high standard to overturn.”** “If the Board’s

findings and conclusions are found to be based upon substantial evidence and there

is no error of law, the Board’s decision must be affirmed.”?>

 

'8 16 Del. C. § 4736(b); 29 Del. C. §§ 10102(4) & 10142(a).

'929 Del. C. § 10142(d); Sekyi v. Del. Bd. of Pharmacy, 2018 WL 4177544, at *3 (Del. Super.
Aug. 29, 2018); Tri-State Liquor Mart, Ltd. y. Del. Alcoholic Beverage Control Comm’n, 1995
WL 656872, at *2 (Del. Super. Oct. 2, 1995),

9 Sekyi, 2018 WL 4177544, at *3 (quoting Anchor Motor Freight v. Ciabattaoni, 716 A2d 154,
156 (Del. 1998)).

*! Sekyi, 2018 WL 4177544, at *3 (quoting Bermudez v. PTFE Compounds, Inc., 2006 WL
2382793, at *3 (Del. Super. Aug 16, 2006)); Gaskill v. State, 2018 WL 3213782, at *1 (Del. Super.
Jun. 29, 2018).

2 Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).

3 Sekyi, 2018 WL 4177544, at *3 (citing Nat’l Cash Register y. Riner, 424 A.2d 669, 674-75
(Del. Super. 1980)).

** Rooney v. Del. Bd. of Chiropractic, 2011 WL 2088111, at *3 (Del. Super. Apr. 27, 2011).

25 Sokoloff v. Bd. of Med. Practice, 2010 WL 5550692, at *5 (Del. Super. Aug. 25, 2010).
For the reasons set forth below, I find that, based on the record before me,
both the Board’s decision to permanently revoke Dr. Gala’s medical license and the
Secretary’s decision to revoke Dr. Gala’s CSR are based upon substantial evidence
and free from legal error.

FACTS

As discussed above, the Board and the Secretary were bound by the facts as
determined by the Hearing Officer, and I am bound by the facts as determined by the
Board and the Secretary, so long as the evidence of record is adequate to support
those facts and the Board and the Secretary have fairly and reasonably reached their
conclusions. I will briefly state the facts of record that I have considered, utilizing
these standards.

This is not a case where a physician early in his career exhibited an isolated
lapse in judgment or made a technical error under the regulations. Sadly, it is a case
where he used his newly acquired medical license and his CSR to feed and
exacerbate a patient’s preexisting addiction to drugs, and to engage in inappropriate
sexual relationships with that patient, continuing over an extended period of time.
Such actions by a physician are anathema to the medical profession.

Medications.

Beginning in December of 2015, and continuing through the 2016 calendar

year, the patient was taking Suboxone as a medication-assisted treatment for opioid
dependence.”° After being discharged by her prior physician and filling her last
Suboxone prescription from that physician, the patient presented to Dr. Gala on
September 23, 2016.?’ She reported to Dr. Gala at that first visit that she had a
history of addiction.’ He recorded her primary complaint as “pain management”
and listed primary diagnosis as “opioid dependence.”*? He did not, however,
discuss the risks and benefits of prescribing controlled substances with the patient,
the side effects of opiate treatment, or any alternate treatment options.°? Dr. Gala
did not request her prior treating records from her prior physician.*' He simply
wrote her a prescription for Oxycodone at that first appointment.>? When the patient
had difficulty getting this Oxycodone prescription covered by insurance, she texted
Dr. Gala on his personal cell phone (he gave her the number at the first appointment),
asking for help getting the Oxycodone prescription covered by Medicaid.*? During
a text exchange over the few days following her first appointment, Dr. Gala invited
her to “come hang out,” but the two did not see each other again until her next

appointment.*4

 

°° B-11 to B-12; B-35; B-68 to B-69. References to the Appendix to Appellees’ Answering Brief
on Appeal will be by bates stamp number beginning with the prefix “B-.”

77 B-15; B-9; B-36; B-69 to B-70.

8 B71.

9 B-10 to B-11.

°° B-13 to B-14; B-37; B-40.

31 B-15,

32 B-16; B-38.

3. B-41 to B-42.

B42.
At the second appointment on October 20, 2016, Dr. Gala increased
her opioid prescription, refilling her Oxycodone and adding a thirty-day supply of
Fentanyl.*>

At her third appointment on October 28, 2016, Dr. Gala discontinued the
Fentanyl (but allowed the patient to keep the unused Fentanyl), refilled her
Oxycodone prescription, and prescribed OxyContin.*®

The patient’s fourth appointment on November 23, 2016 produced no
treatment record.

Dr. Gala also prescribed medications for the patient that were not
documented as having been provided to her in connection with documented office
visits. On November 9, 2016, Dr. Gala wrote the patient a prescription for
Oxycodone.*’ There is no office visit or treatment record that corresponds to this

prescription. On November 30, 2016, Dr. Gala wrote the patient a prescription

for Dilaudid, again without any office visit or treatment record.°8

 

3° B-17 to B-18. The Secretary of State has classified F entanyl as a Schedule I controlled
substance in the State of Delaware. 16 Del. C. § 4716(c)(6). It has a high potential for abuse,
is approved for medical use only with severe restrictions, and its abuse may lead to severe psychic
or physical dependence. 16 Del. C. § 4715.

© B-39; B-45; B-123 to B-124.

37 B-21,

38 B-21.
Sexual Relationship.

After her October 20, 2026 appointment, Dr. Gala and the patient met in the
parking lot of a convenience store and she performed oral sex on him as he drove
his car.*? Through December of 2016, Dr. Gala and the patient met several times
at Dr. Gala’s house, where she would perform various sex acts with Dr. Gala
(and others) and in exchange he would give her controlled substances without
prescriptions.*” Eventually, on December 10, 2016 the patient reported Dr. Gala to his
medical practice and then to the police.*!

Other Matters in the Record.

In his recommendations of the Hearing Officer to the Board and the Secretary,
the Hearing Officer editorializes about the “re-victimization””? of a “vulnerable
addict”*? by Dr. Gala’s counsel’s cross-examination of the patient, and about the
patient being a “psychological hostage”“* of Dr. Gala. In his exceptions to the
Hearing Examiner’s recommendations filed with the Board and the Committee and
the Secretary, and again in his appeal to this Court, Dr. Gala asserts that this is a Due
Process violation under the Fourteenth Amendment to the United States

Constitution. Like the Board and the Secretary below, I disregard these

 

3° B-46 to B-48.
© B-49 to B-51.
41 B.59,

42 4-108.

43 4-79,

44 4-130.

10
characterizations as they are beyond the scope of the Hearing Examiner’s mandate
and expertise. These characterizations emanated only from the Hearing Officer.
They did not underpin the Orders, and they play no part in my decision here.

The Hearing Officer’s recommendations also contained substantial factual
findings about certain medical records introduced into evidence’ by Dr. Gala two
years after the State’s subpoena and one month before the hearing, and the alleged
falsification thereof by Dr. Gala.“* In his exceptions to the Hearing Examiner’s
recommendations filed with the Board and the Secretary, and again in his appeal to
this Court, Dr. Gala asserts that this is a Due Process violation under the Fourteenth
Amendment to the United States Constitution, because Dr. Gala was not adequately
on notice that he would have to defend against an allegation of falsification of
medical records. The Board agreed, and expressly rejected the Hearing Officer’s
recommended conclusion of law that Dr. Gala violated Delaware law by falsifying
medical records. The Board found that, since the falsification of medical records
was not pled in the State’s complaint to the Board, Dr. Gala was not adequately on
notice that he would have to defend against this allegation.” Thus, that allegation

was dropped by the Board, the Board disregarded it for purposes of imposing

 

* The State initially objected to the introduction of these medical records as evidence, but
subsequently dropped that objection.

* A-227 to A-229; B-5; B-7 to B-8; B-25; B-31 to B-34; B-39; B-79; B-86 to B-94.

“7 In an administrative hearing, the respondent is entitled to adequate notice of the charges, so that
he can prepare his defense thereto. Cyric W. Cain, P.A. v. Del. State Bd of Accountancy, 1989
WL 135766 (Del. Super. Oct. 3, 1989).

11
sanctions, and neither that allegation nor the related medical records are before me
on appeal. Since Dr. Gala, and not the State, introduced the medical records at the
original hearing, the Secretary pointed out that the consideration of the medical
records went only to the limited issue of Dr. Gala’s credibility. Like the Board and
the Secretary below, I disregard the substantive recommendations of the Hearing
Officer with respect to falsification of medical records, and the related evidence.
These recommendations emanated only from the Hearing Officer. They did not
underpin the Orders, and they play no part in my decision here.
ANALYSIS

Hearing Officer’s Recommendations.

As discussed above, Dr. Gala argues that the Hearing Officer committed
legal error and violated his Due Process rights under the Fourteenth Amendment
by characterizing the patient as a “psychological hostage” who, as a “vulnerable
addict,” was “re-victimized” by Dr. Gala’s counsel’s cross-examination of her, and
by finding that Dr. Gala falsified medical records. He asks me to find that both the
Board and the Secretary were so prejudiced by the Hearing Officer’s
recommendations that the only remedy is for me to reverse both Orders. | decline
to do so. Any error attributable to the Hearing Officer was cured because, as Dr.
Gala himself concedes, neither the Board nor the Secretary adopted the

recommendations of which he complains (see full discussion, post). The Orders

12
of the Board and the Secretary -- not the Hearing Officer’s recommendations -- are
the only decisions under review on this appeal.

The procedure the Board follows upon receipt of the Hearing Officer’s
findings and recommendations* closely tracks the APA-created procedure utilized
by the Secretary, and contemplates delegation to a subordinate body for holding
evidentiary hearings.” Pursuant to the APA, whenever a subordinate body, such
as the Hearing Officer in this case, presides over a formal hearing, “the subordinate
shall prepare a proposed order for the consideration of the agency which shall
include: (1) [a] brief summary of the evidence and recommended findings of fact
based upon the evidence; (2) [rlecommended conclusions of law; and (3) [a

rjecommended decision.” °

Any party against whom a “case decision” has been decided may appeal such
decision to the Court,*! defining “Court” as the Superior Court of the State of
Delaware.” The provisions of the APA, including those regarding judicial review,

apply to the Board.*? Any holder of a CSR aggrieved by a decision of the Secretary

 

“8 29 Del. C. § 8735(v)(1)d.

See 29 Del. C. § 10126.

°° 29 Del. C. § 10126(a). Further, the APA, like 29 Del. C. § 8735(v)(1)d, requires that when the
subordinate body’s “proposed order is submitted to the agency, a copy shall be delivered to each
of the other parties who shall have 20 days to submit in writing to the agency exceptions,
comments and arguments respecting the proposed order.” 29 Del. C. § 10126(b).

>! 29 Del. C. § 10102(4).

229 Del. C. § 10142(a).

329 Del. C. § 10161(a)(22).

13
may appeal such decision to the Superior Court.** A “case decision” means the
final order issued by the Board and the Secretary, not the findings and
recommendations of the Hearing Officer.** The opinion of a subordinate body
“does not constitute a ‘case decision’ under the Administrative Procedures Act.
Rather, it is a proposed order.”°° A hearing officer’s recommendation to a Board
is “nothing more than [a] recommendation of action ... It [i]s neither properly
authenticated nor [does] it contain the formalities required of a final order.”°” Only
final orders of an agency may be appealed; e€.g., an appeal of a decision of the
Industrial Accident Board, short of a final award, will be dismissed as

interlocutory.*®

 

16 Del. C. § 4736(b).

** 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 only 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 recommendations in that case as
impermissibly interlocutory).

*6 29 Del. C. § 10126(a); Quaker Hill Place v. Saville, 523 A.2d 947, 952 (Del. Super. 1987).

°7 Td, at 952-953. 29 Del. C. § 10128(b) provides that “[e]very case decision of any agency shall
be incorporated in a final order which shall include, where appropriate: (1) [a] brief summary
of the evidence; (2) [flindings of fact based upon the evidence; (3) [c]onclusions of law; (4)
[aJny other conclusions required by law of the agency; and (5) [a] concise statement of the
agency’s determination or action on the case.” The formalities of a final case decision required
by the APA continue in subsection (c), which requires “every final order . . . be authenticated by
the signatures of at least a quorum of all agency members, unless otherwise provided by law.” 29
Del. C. § 10128(c).

*8Clendaniel v. McDaniel Constr., Inc., 787 A.2d 100, 100 (Del. 2001); Eastburn v. Newark Sch.
Distr., 324 A.2d 775 (Del. 1974).

14
Thus, the Orders of the Board and the Secretary are the only “case decisions”
subject to my review. I do not accept Dr. Gala’s invitation to relitigate the Hearing
Officer’s recommendations.

Editorializing by Hearing Officer

As discussed above, Dr. Gala asserts that the Hearing Officer’s statement that

the patient was Dr. Gala’s “psychological hostage” and was a “vulnerable adult” who
was “victimized again” by Dr. Gala’s counsel’s cross-examination “were made
without any substantiation in the record,” and that those statements informed the
Orders of the Board and the Secretary. The record, however, does not show that
either the Board or the Secretary relied on those statements in reaching their
Orders. Indeed, the Board expressly rejected “the hearing officer’s characterization
of S.G. as a ‘psychological hostage’ insofar as this diagnosis is outside of the hearing
officer’s expertise.”*? The Board’s rejection of the Hearing Officer’s statements
cured any legal error by the Hearing Officer.

Medical Records

As discussed above, there was considerable time spent by the Hearing Officer

discussing the authenticity of certain later-produced medical records introduced into

 

°9 A-285.
 Bilski v. Ba. of Med. Licensure & Discipline, 2014 WL 3032703 (Del. Super. Jun. 30, 2014),
aff'd, 115 A.3d 1214 (Del. 2015); see also Leonard v. Del. Bd. of Nursing, 2013 WL 422904 (Del.
Super. Jan. 30, 2013)

15
evidence by Dr. Gala. However, the Board expressly rejected the Hearing Officer’s
recommended conclusion of law that Dr. Gala violated Delaware law by falsifying
medical records.°' Because falsifying medical records was not pled in the State’s
complaint, Dr. Gala was not adequately on notice that he would have to defend
against this allegation. The Board stated that Dr. Gala would not be disciplined for
falsifying medical records because he was not given adequate notice that he was
charged with a disciplinable offense. Thus, despite the Hearing Officer’s erroneous
conclusion of law, the Board’s express rejection of that legal conclusion cured any
legal error by the Hearing Officer. Moreover, the contested medical records are not
in the record before me for review. If anything, as the Secretary explained in his
Order, “the issue of the patient’s medical records, created by Dr. Gala after treatment
had been rendered, went to the issue of Dr. Gala’s credibility.”©
Substantial Evidence
I must affirm the Board’s and the Secretary’s Orders if they are supported
by “substantial evidence” and free from “legal error.” “Substantial evidence is

evidence which affords a substantial basis of fact from which the fact in issue can

 

61 A-285,

° Cyric W. Cain, P.A. v. Del. State Bd. of Accountancy, supra.

63 A-288.

6429 Del. C. § 10142(d); Morris v. Real Estate Comm n, 2008 WL 1735072, at *1 (Del. Super,
Apr. 11,2008).

16
be reasonably inferred.” “The Court does not re-weigh the evidence, nor does
the Court substitute its judgment for the factual determinations made by the
Board ... below.’

Medications

Substantial evidence exists on this record to support the Board’s and the
Secretary’s findings that Dr. Gala engaged in inappropriate prescribing practices
with the patient. Dr. Gala admits that he wrote six prescriptions for Oxycodone,
Fentanyl, OxyContin and Dilaudid for her from September 23, 2016 to December
20, 2016.°’ Dr. Gala agreed that if he accepts a patient with a prior record of treatment,
obtains and reviews the prior treatment records, and performs an assessment,
diagnosis, examination, or writes a prescription, it should be documented in the
patient’s record.°® Dr. Gala admits that the patient told him she had a history of
addiction and opioid dependence and that she was taking Suboxone at her first
appointment.” Dr. Gala testified that he classified the patient as a moderate risk

patient according to the opiate risk tool.” Nevertheless, he admitted that the record

 

°° McCain v. Del. Council on Real Estate Appraisers, 2009 WL 1515594, at *2 (Del. Super. May
29, 2009) (internal citations omitted).

°°Hoopes v. Del. Council of Real Estate Appraisers, 2006 WL 3308203, at *1 (Del. Super. Oct.
19, 2006) (internal citations omitted).

°7 B-63 to B-64.

°8 B-66 to B-67.

° B-71 to B-72.

” B-72 to B-73.

17
from her initial appointment was lacking documentation of a treatment plan, missing
any discussion of other pain management treatment, and did not reflect any
risk/benefit analysis.”! Dr. Gala conceded that he never reviewed the patient’s prior
treatment records from the physician who was prescribing her Suboxone before she
first presented to him.7?

When Dr. Gala wrote the patient a prescription for Fentanyl, he admits that her
medical record contained no discussion of risks and benefits of additional opioids
and no documentation of any discussion of additional treatment other than
medication.” Dr. Gala admitted he wrote the patient a prescription for Oxycodone
on a Sunday, but there is no medical record anywhere in the patient’s file for this or
any other date.” For her fourth office visit, Dr. Gala conceded there was almost
nothing noted in the patient’s file.7> Dr. Gala admitted that, by her fourth
appointment, the patient was overusing her medication and beginning to show signs
of “aberrant drug-seeking behavior.””6 Nevertheless, seven days later he wrote her

a prescription for Dilaudid.”’ Dr. Gala admitted that the medical records include no

 

"| B-74 to B-75,

” B-84 to B-85.
® B-77,

 B-80,

"5 B-78 to B-79.

6 B-96 to B-97.

” B-97 to B-98.

18
treatment note at all for that date.” Dr. Gala admits to writing a December 20, 2016
prescription for Oxycodone without an office visit.”

The State’s expert witness, Dr. Thomas, whom I find imminently credible,
opined that the prescriptions written for the patient by Dr. Gala were not for any
legitimate medical purpose.*°

On this record, J find that there is substantial evidence to support the Board’s
finding that Dr. Gala violated four statutes and the Board’s Regulations, as
follows. First, he engaged in conduct constituting a crime substantially related
to the practice of medicine®! by delivering controlled substances to the patient for
other than a therapeutic medical purpose. Second, he engaged in dishonorable or
unethical conduct likely to deceive, defraud or harm the public® by failing to
follow the Board’s regulations regarding the prescribing of controlled substances.®3
Third, he used, distributed, or issued a prescription to the patient for other than a
therapeutic purpose.*4 Fourth, his behavior over the four-month period constituted

a pattern of negligence in the practice of medicine.®>

 

8 B-81 to B-83.

” B-64 to B-65.

8 A-290 to A-291,

8194 Del. C. § 1731(b)(2),

8? 24 Del. C. § 1731(b)(3).
*° Board Regulation 8.1.12: Board Regulation 18,
8424 Del. C. §1731(b)(6).
85.94 Del. C. § 1731(b)(11).

19
On this record, I further find that there is substantial evidence to support the
Secretary’s finding that Dr. Gala violated three statutes and the Secretary’s
Controlled Substance Regulations, as follows. First, Dr. Gala failed to maintain
effective controls against diversion of controlled substances.®° Second, he failed
to comply with applicable law regarding the prescribing and dispensing of
controlled substances.®” Third, he failed to comply with the Secretary’s Controlled
Substance Regulations*® by violating the regulation requiring that every controlled
substance prescription be for a legitimate medical purpose.®°

Sexual Relationship

At first Dr. Gala denied any sexual relationship with the patient, but now
admits that there was a sexual relationship but that it was consensual.” I do not find
this credible in light of the patient’s extensive testimony about her repeated attempts
to get off opioids and to end her sexual relationship with Dr. Gala. She pleaded with
Dr. Gala more than a few times to go back to Suboxone and to stop their sexual
relationship, but he persisted.?!

One example of Dr. Gala’s intimidation of the patient is the evening he

requested her to engage in sex acts with him and a female prostitute. She told him

 

86 16 Del. C. § 4735(b)(1).

8716 Del. C. § 4735(b)(2).

"816 Del. C. § 4735(b)(6).

8° Controlled Substance Regulation 4.2.1.
°° B-99 to B-102.

°1 B-59,

20
that she did not want to do this, and he offered to pay for her Oxycodone if she
would do so. After ingesting alcohol and a number of pills left for her in an
unmarked bottle on Dr. Gala’s kitchen counter, she engaged in the threesome.

The next day, Dr. Gala wrote her his personal check to pay for the Oxycodone.”

The patient’s testimony about this evening is corroborated by the testimony
of two staff members who then worked for Dr. Gala. They testified that Dr. Gala
himself recounted to them the events of that evening with the two women, with
only minor inconsistencies.”> Only Dr. Gala denied these conversations occurred.

Dr. Gala also complains that the testimony of Dr. Thomas concerning the
power dynamic between doctor and patient was only general in nature as to the
asymmetric power position between patients and their doctors. However, I
read Dr. Thomas’ testimony to generally condemn any sexual relationship
between patient and doctor, which, when the dynamic of the patient’s
addiction to controlled substances is added to the mix, is beyond the pale.”

I find that the patient’s testimony, the testimony of the two staff members,
and the testimony of the expert physician constitute substantial evidence to support
a finding that Dr. Gala engaged in an inappropriate sexual relationship with his

patient.

 

2 B-55 to B-57.
3 B-60 to B-62.
4 B-23 to B-24; A-294 to A295.

21
On this record, I find that there is substantial evidence to support the Board’s
finding that Dr. Gala violated two statutes and the Board’s Regulations, as
follows. First, Dr. Gala engaged in unethical conduct” by virtue of his sexual
relationship with the patient. Second, Dr. Gala engaged in dishonorable or unethical
conduct likely to deceive, defraud or harm the public ® because his conduct
constitutes “exploitation of the doctor/patient privilege for personal gain or sexual
gratification,” as well as “sexual impropriety including, but not limited to, sexually
suggestive behavior, gestures, expressions, statements and a failure to respect his
patient’s privacy” under Board Regulations.®”

On this record, I further find that there is substantial evidence to support the
Secretary’s finding that Dr. Gala engaged in acts inconsistent with the public
interest.”®
Legal Error

I review the Board’s and the Secretary’s Orders for legal error de novo. In
doing so, I must review whether the “mandates of due process and fairness” were

adhered to, whether the Board and the Secretary “correctly allocate[d] the burden

of proof .. . and that its findings of fact, inferences, deductions and conclusions

 

°5 24 Del. C. § 1731(b)(1).

6 94 Del. C. § 1731(b)(3).

*7 Board Regulations 8.1.2 & 8.1.3 (clarifying the definition of “dishonorable or unethical conduct”
as that term is used in 24 Del. C. § 1731(b)(3)).

8 16 Del. C. § 4735(b)(8).

22
are... supported by substantial evidence .. . [and] are .. . the product of an orderly
and logical deductive process.”””

The legal errors asserted by Dr. Gala (with respect to editorializing by the
Hearing Officer and the allegation of falsifying medical records) were appropriately
dealt with by the Board and the Secretary below, and are discussed fully above. Dr.
Gala asserts no errors in the procedures that were followed by the Hearing Officer,
the Board, the Committee and the Secretary under the applicable statutes and
regulations. I find no other errors of law in the record before me.

Propriety of Sanctions

Lastly, Dr. Gala asserts that the Board'” and the Secretary !°! imposed
sanctions (permanent revocation of his Delaware medical license and revocation of
his Delaware CSR, respectively) which are far more severe than those warranted by
the facts,'°’ and which resulted at least in part from the Board’s and the Secretary’s
consideration of evidence improperly contained in the Hearing Officer’s
recommendations. As I have pointed out above, however, both the Board and the

Secretary rejected that evidence on the merits.

 

»° Quaker Hill Place v. Saville, 523 A.2d 947, 967 (Del. Super. 1987).

100 A-257 to A-258: A-260.

101 A278 to A-279.

'®? Dr. Gala does not assert that the sanctions exceed the authority of the Board or the Secretary.

23
In determining the appropriate sanctions, the Board considered Dr. Gala’s
assertion of a wide range of mitigating factors which are available to it under its
enabling statutes and regulations.' In addition, the Board considered the State’s
assertion of a wide range of aggravating factors which are available to it under its
enabling statutes and regulations.'* The choice of a sanction by an administrative
agency, if based on substantial evidence and not outside its statutory authority, is a
matter of discretion to be exercised solely by the agency. In reviewing for an abuse
of discretion, the question is not whether I would have imposed these sanctions, but
whether such sanctions are so disproportionate to the allegations in light of all the
facts as to be “shocking to one's sense of fairness.”!°> They are not. I defer to the
expertise and discretion of the Board and the Secretary.

CONCLUSION

For the reasons set forth in this Opinion, the final order of the Delaware Board

of Medical Licensure and Discipline permanently revoking Dr. Gala’s medical

license, and the revocation of Appellant’s controlled substances registration by the

 

13 A-257 to A-258.

104 A-286.

°° Warmouth v. Del. State Ba. of Examiners in Optometry, 514 A.2d 1119, 1123 (Del. Super. 1985)
(Internal citations omitted); Decker v. Del. Bd. Of Nursing, 2013 WL 5952103 (Del. Super. Nov.
7, 2013).

24
Delaware Secretary of State, issued on June 4, 2019 and June 18, 2019, respectively,

are AFFIRMED.

IT ISSO ORDERED.

cc: Prothonotary’s Office

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