      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
