      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                     )
PAUL J. HANNAN, M.D.,                )
                                     )
           Appellant,                )
                                     )
           v.                        )   C.A. No. N18A-02-001 JAP
                                     )
DELAWARE BOARD OF MEDICAL            )
LICENSURE AND DISCIPLINE,            )
                                     )
           Appellee.                 )


                        MEMORANDUM OPINION


       Appellant is a physician whose license was revoked by the

Board of Medical Practice and Licensure for, in the words of the

Hearing Officer, “enabling a criminal drug gang in Pennsylvania by

providing them with a regular source of controlled substance

prescriptions to be sold on the street.” The physician now seeks a

stay of the revocation of his license pending the results of this

appeal. It is manifest on the face of his application that he has not

alleged any substantial issue to be raised on the appeal. Therefore,

even though the State has stipulated to a stay, the court will deny

it.
                                   A. Facts

  The Board summarized the evidence before the Hearing Officer in

part as follows:

           Based on the testimony of the State’s expert, the
           hearing officer found as a matter of fact that Dr.
           Hannan’s practice of prescribing opioids ignored a
           number of “red flags,” that indicate that his patients
           were seeking controlled substances for non-
           therapeutic purposes. Dr. Hannan requested MRI
           reports from his patients at the time of their initial
           presentation, but made little to no effort to secure any
           charting of prior pain management physicians. Dr.
           Hannan ignored point-of-care urine screens that
           indicated patients may be taking prescriptions, or
           other opioids, that he was not prescribing. Dr. Hannan
           required the execution of a pain management contract,
           but did little to enforce the terms of these agreements.
           Physical examinations were never performed, pursuant
           to the testimony of the patients highlighted in this
           hearing, and this is corroborated by the medical
           records that include no indication that physical
           examinations were performed. Dr. Hannan’s medical
           records hardly ever included diagnoses, and
           medications were increased without documented
           rationale. Dr. Hannan’s files did contain “short form”
           and “long form” disclosures about the risks and
           benefits of taking controlled substances, but the
           hearing officer found these were fill in the blank forms
           that weren’t filled in, and referenced discussions of
           risks and benefits occurring elsewhere without
           documentation of any other discussion of the risks
           and benefits. The hearing officer found as a matter of
           fact the Dr. Hannan engaged in discussions with his
           patients including discussions of Dr. Hannan’s Nurse
           Practitioner’s family situation, as well as multiple
           conversations about Dr. Hannan being investigated by
           the DEA. Finally, the hearing officer found as a matter
           of fact that on April 22, 2015, Dr. Hannan was
           arrested and charged with knowingly and unlawfully
           carrying a concealed loaded handgun in his briefcase,
           a misdemeanor offense for which he pled guilty, but
           successfully completed probation before judgment.
                                      2
     The State based its case against Dr. Hannan on his treatment

of eight patients. The court need not detail the evidence relating to

each patient at this point. Suffice it to say, the Board found that

the “record of how these patients were treated is deplorable.” The

following are illustrative points:

         Dr. Hannan repeatedly prescribed opioid medications for

           patients without documenting any justification for doing

           so.   He increased dosages even though there was no

           report of new symptoms or increase pain, and in at least

           one case ordered an increase in dosage even though he

           recorded that the patient reported she was doing well.

         Urine drug screens frequently were negative for the

           opioids he was prescribing, suggesting that the patient

           might be diverting the medication rather than taking it.

         On some occasions Dr. Hannan prescribed Oxymorphone

           (a drug with twice the potency of Oxycodone) without any

           justification being apparent from his records.

         The    Pennsylvania        Prescription     Monitoring    Program

           (“PMP) record shows that roughly 53 of Dr. Hannan’s

           patients   filled   their       prescriptions   in   Pennsylvania
                                       3
  pharmacies. The PMP for one patient illustrates how

  quickly and freely he handed out prescriptions for pain

  killers:

     o Initial prescription: 90 Oxycodone (30 mg.) and 56

        Oxycodone (15 mg).

     o Prescription changed to 84 30mg and 84 15mg.

        later.

     o When patient reported this was “not enough” Dr.

        Hannan increased the Oxycodone 30mg tabs from

        84 to 160.

     o April     11,   2013:   Appellant   prescribed   160

        Oxycodone 30mg tabs for the patient.

     o Six days later (April 17) he prescribed 58 Oxycodone

        5mg tabs for the same patient.

     o May 10, 2013: Appellant prescribed 124 Oxycodone

        30mg and 62 Oxymorphone 5mg tabs to the patient.

 Many of Dr. Hannan’s patients came from out of state.

  According to one patient ostensibly living in Elkton, MD,

  Dr. Hannan knew that the patient actually resided in

  Kentucky and travelled by train to Elkton to obtain
                           4
          prescription. Another patient estimated that 35 to 40 of

          Dr.    Hannan’s      patients     resided     in    Shamokin,

          Pennsylvania, which is 115 miles (and roughly a three-

          hour drive) from appellant’s office.

        One patient wore an audio recording/transmitting device

          to a visit with Dr. Hannan.        The records prior to the

          recorded visit show that Dr. Hannan increased the

          patient’s dosage of Oxycodone even though the patient

          advised of a “2” on a pain scale of 0 to 10. The recording

          shows that the patient told Dr. Hannan that he sold half

          of his prescribed drugs to support his family, and later

          told appellant he intended to sell half of the drugs. Dr.

          Hannan advised the patient that such activity was a

          criminal offense, whereupon the patient told Dr. Hannan

          he intended to continue selling the drugs. Nevertheless

          Dr. Hannan prescribed 150 tabs of Oxycodone 30mg and

          60 tabs of Methadone 10mg “to prevent withdraw.”

The Hearing Officer observed that:

          The evidence in this case establishes that Dr. Hannan
          was enabling a criminal drug gang in Pennsylvania by


                                   5
          providing them with a regular source of controlled
          substance prescriptions to be sold on the street.

The Board had a similar view of the evidence, concluding:

          Dr. Hannan’s practices show a clear priority on
          money-making at the expense of appropriate patient
          care. There is a real concern for public safety.



           B. The court will not agree to the stipulated stay

     The State and the appellant have stipulated that this court

stay the Board’s decision pending the outcome of this appeal. It is

manifest from the papers that the sole purpose of the stay is to

prevent (for the time being at least) Florida medical authorities from

learning the Delaware Board’s revocation of Dr. Hannan’s license.

Dr. Hannan is now treating patients for pain management in

Florida, which apparently includes prescription of narcotic pain

medications. The purpose of the motion is to prevent (for the time

being at least) Florida authorities from learning that his license has

been revoked in Delaware. According to his motion:

          Appellant continues to practice in the area of pain
          management medicine in Tampa, Florida. Without a
          stay, and without being afforded his constitutional due
          process rights, the discipline will be made public and
          placed on the National Practitioner Database. * * *
          Appellant’s patients, for the most part, suffer from
          chronic and life-altering pain and rely upon his
          practice for obtaining relief from that pain through, in


                                     6
           many instances, the prescription      of   prescription
           medicine that contains narcotics.

Despite the fact that the Board (at the State’s urging) found that Dr.

Hannan poses a threat to the community, the State has agreed

stipulated stay which would effectively allow Dr. Hannan to

continue prescribing narcotic pain killers to patients in Florida.1

     As the parties recognize,2 the court is not bound by their

stipulation. The Administrative Procedures Act prohibits this court

from issuing a stay unless it finds, among other things, that the

appellant has a substantial chance of success on the merits. The

Administrative Procedures Act provides:

           When an action is brought in the Court for review of
           an agency regulation or decision, enforcement of such
           regulation or decision by the agency may be stayed by
           the Court only if it finds, upon a preliminary
           hearing, that the issues and facts presented for
           review are substantial and the stay is required to
           prevent irreparable harm.3




1   The stipulation would prevent Dr. Hannan from practicing medicine in
Delaware during the pendency of this appeal, which seems to be somewhat of a
Pyrrhic victory for the State of Delaware since he no longer resides here but
rather lives in Florida.
2    In a cover letter transmitting the stipulation to the court, the Deputy
Attorney General representing the Board wrote that the parties have agreed
“subject to the approval of the court, to a Stipulated Order.”
3 29 Del. C. § 10144 (emphasis added).

                                     7
As discussed below, the court finds appellant has little, if any,

chance of success on the merits.            Put another way, he has not

presented issues and facts that are substantial.

      Moreover, there are policy considerations which weigh heavily

against granting the stay in this case. This court is reluctant to be a

party to what is essentially a contrivance (albeit a lawful one) to

prevent the Florida authorities from promptly learning of the

Delaware Board’s disciplinary action. Florida, like all states, relies

in part upon information supplied by the National Practitioner Data

Bank,4 and a stay would delay transmission of the Delaware

Board’s revocation to the Data Center which in turn would delay

the Florida authorities from learning of that revocation. This court

will not enter a stay for the sole purpose of preventing the Florida

Department of Health from learning information which may (or may

not be) relevant to the health and safety of the people of that state.




4   See Fla. Stat. Ann. § 456041(1)(b)(“The physician profiles shall reflect the
disciplinary action and medical malpractice claims as reported by the National
Practitioner Data Bank, and shall include information relating to liability and
disciplinary actions obtained as a result of a search of the National Practitioner
Data Bank.”).

                                        8
          C. Dr. Hannan’s contentions in his motion for a stay

    The following contentions can be gleaned from Dr. Hannan’s

motion:

             1. The Hearing Officer erred when he denied the

                doctor’s request for a continuance.

             2. The Hearing Officer erred when the State’s expert

                was permitted to testify by telephone.

             3. The Hearing Officer erred when he permitted the

                State to call its witnesses in a “piecemeal fashion,

                out of order.”

             4. The Hearing Officer erred when he allowed the

                State’s expert to offer an opinion “based on a review

                of records, but had no personal knowledge of the

                underlying facts.”

             5. It was constitutional error to permit the State’s

                witnesses to offer hearsay testimony.

             6. The State’s decision to use hearsay testimony and

                not call the eight patients involved deprived the

                Hearing Officer of the opportunity to assess the

                patient’s credibility.
                                     9
              7. The Hearing Officer erroneously excluded testimony

                 by Dr. Hannan about an electronic record system

                 reflecting prescriptions for one of the eight patients

                 because the State had not seen the system.

              8. The State called a witness whose only testimony

                 was that Dr. Hannan’s medical assistant was

                 “tattooed” and appeared to be a security guard.

              9. The Hearing Officer based his decision in part on

                 evidence that Dr. Hannan was arrested in Delaware

                 for carrying a concealed firearm in his briefcase

     Virtually all of Dr. Hannan’s arguments must be quickly

dismissed because of the limited scope of this court’s review in

administrative proceedings. In administrative appeals this court’s

review is limited to a determination whether the “decision is

supported by substantial evidence and is free from legal error.”5

This court has recently described the scope of its review of decisions

of the Board of Medical Practice and Licensure:

           The Superior Court has jurisdiction to review a
           decision of the Board on appeal pursuant to the
           Delaware Administrative Procedures Act. The duty of

5 Haggerty v. Board of Pension Trustees, 2018 WL 454501, at *4 (Del. Jan. 18,
2018).
                                     10
           the reviewing Court is to examine the record of the
           proceedings below to determine if (1) there is
           substantial evidence to support the Board’s findings
           and conclusions and (2) the Board’s decision is free
           from legal error. In making its assessment, the Court
           is not authorized to make its own factual findings,
           assess credibility of witnesses or weigh the evidence.
           Substantial evidence is greater than a scintilla and
           less than a preponderance. 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.6

The narrow scope of review is intended to prevent reviewing courts

from getting into the weeds of discretionary and evidentiary rulings

by the administrative tribunal. Yet that is exactly what Appellant is

asking this court to do.

     Dr. Hannan casts his arguments in due process terms.                He

fails to explain, however, why alleged errors by the Hearing Officer

have (either singly or collectively) deprived him of due process. For

example, the court is at a loss to understand how testimony that a

medical assistant was “tattooed and appeared to be a security

guard” deprived him of a constitutional right.

     Moreover, many of the alleged deprivations of due process

have been specifically rejected as such or are in fact routine

practice in this court and elsewhere. For example:

6  Sokoloff v. Board of Medical Practice, 2010 WL 5550692, at *5 (Del Super.
Aug. 25, 2010) (emphasis in original).
                                    11
           Dr. Hannan claims that he was deprived of his right to

             due process because the Hearing Officer allowed hearsay

             testimony. It has long been the law, however, that the

             use of hearsay in administrative proceedings in and of

             itself   does   not   offend    the   Due    Process     Clause.7

             According to the Delaware Supreme Court “The Due

             Process clause has never been read to mean that the

             admission of hearsay evidence in an administrative type

             proceeding is a violation of that clause, and we decline to

             accept that reading today.”8

           It is true that hearsay cannot form the sole basis for an

             administrative decision,9 but that is not the case here.

             Dr. Hannan argues that “not one witness called by the

             State had any knowledge of the facts to which they were

             testifying.”    This does not equate to an administrative

             decision based solely on hearsay—the Hearing Officer’s



7   See Qijano v. Ascroft, 2004 WL 2823312, at *1 (9th Cir. Dec. 9, 2004); see
also, Williams v. United States Dept. of Transportation, 781 F.2d 1573, 1578 n.7
(11th Cir. 1986); Burgin v. Berryhill, 2017 WL 4249729, at *5 (W.D. Okla. Sept.
1, 2017).
8 In re Kennedy, 472 A.2d 1317, 1329 (Del. 1984).
9 Crooks v. Draper Canning Co., 1993 WL 370851, at *1 (Del. Sept. 7, 1993).

                                      12
            Recommendation is chock-full of references to Dr.

            Hannan’s records and his own testimony.

          Dr. Hannan complains that the State’s expert “offered

            opinion testimony based on his review of the records,

            but had no personal knowledge of any of the underlying

            facts.” It is again difficult to see how this amounts to a

            constitutional violation, as this sort of thing happens

            every day in courts around the nation, including

            Delaware’s. Both the Delaware10 and Federal11 Rules of

            Evidence permit an expert to base his or her opinion

            upon facts made known to the expert.

          Dr. Hannan complains that the State’s expert was

            permitted to testify by telephone. However, transcripts

            of witness depositions are routinely read into the record

            in lieu of the witness’s live testimony. The civil rules of

            this court provide that “any part or all of a deposition, so

            far as admissible under the rules of evidence applied


10  D.R.E. 703 (“The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made known to him
at or before the hearing.”).
11   F.R.E. 703 (“An expert may base an opinion on facts or data in the case
that the expert has been made aware of or personally observed.”).
                                     13
              [may be read] as though the witness were then present

              and testifying.”12

            Appellant argues the Hearing Officer erred by permitting

              the State’s witness to testify in piecemeal fashion and

              out of order. But trial courts have discretion over “the

              mode    and    order      of   interrogating   witnesses   and

              presenting evidence.”13 The same is surely true of the

              Hearing Officer.

       Appellant also argues that the Hearing Officer erred when he

denied Appellant’s motion for a continuance of the hearing. The

standard of review here is whether the Officer acted capriciously.

The Delaware Supreme Court put it this way: “a discretionary ruling

by a trial court or administrative body on a motion for a

continuance will not be set aside unless that decision is

unreasonable or capricious.”14 The record amply shows that the

Hearing Officer did not act unreasonably or capriciously.

       Dr. Hannan (who was proceeding without counsel at the time)

waited until the eve of the hearing to request a continuance. The

12   Super. Ct. Civ. R. 32(a).
13   D.R.E. 611(a).
14   In re Kennedy, 472 A.2d at 1331.
                                        14
hearing was set to begin on Monday, July 24, 2017. On the evening

Thursday, July 20, after the close of business, Dr. Hannan

requested the continuance for the first time by way of an email to

the investigator in his case.15 In that email Dr. Hannan asserted

that:

               Because of financial difficulties he was unable to

                afford counsel for the hearing (Dr. Hannan had

                been represented earlier in this matter by an

                attorney).

               He could not afford to fly back to Delaware to attend

                the hearing.

               He works full time to pay his bills and spouse and

                child support obligations. Even a small diminution

                in his income would make it difficult for him to keep

                up with those obligations.

               He was unaware of the identity of the patients

                whose care gave rise to the charges.




15 The record shows that Dr. Hannan was aware of the email address of the
Deputy Attorney General representing the Board in this case because the
deputy had previously communicated with him by email.
                                   15
              He requested discovery in the form of the records of

               those patients.

              He needed a “significant amount of time” to review

               those records once he gets them.

The State responded to Dr. Hannan’s request the morning of Friday,

July 20. In that response the State asserted:

              Dr. Hannan must have known of the patients’

               identities because his records for those patients

               were subpoenaed from him in the fall of 2015. He

               was interviewed about each of those patients in

               October, 2015.

              Dr. Hannan received formal notice of the State’s

               complaint on November 18, 2016.

              Although Dr. Hannan had made no document

               requests and the State had no obligation to provide

               him documents, the State sent all of its exhibits to

               him in early June, 2017.

              The Deputy Attorney General representing the

               Board spoke with Dr. Hannan by telephone in June

               2017, at which time the doctor expressed surprise
                               16
                this had not all gone away.     He confirmed to the

                Deputy that he was available for the scheduled

                hearing and made no request for a delay.

The Hearing Officer did not give Dr. Hannan’s request short shrift.

He consulted with the parties the morning after Dr. Hannan sent

his email request for a continuance to the investigator and wrote an

explanation why he was denying the requested continuance.

Appellant’s delay in requesting the delay alone renders the Hearing

Officer’s decision to deny the request reasonable and non-

capricious.

      Because Dr. Hannan has little or no chance for success on the

merits of his appeal, his application for a stay is DENIED.




February 23, 2018                     ______________________________
                                          John A. Parkins, Jr.
                                           Superior Court Judge


oc:   Prothonotary

cc:   Daniel A. Griffith, Esquire; Kaan Ekiner, Esquire, Whiteford
      Taylor Preston LLC, Wilmington, Delaware
      Stacey X. Stewart, DAG, Department of Justice, Wilmington,
      Delaware

                                 17
