N21A-02-002 CLS
Del. Super. Ct.Mar 28, 2022Background
- Dr. Damon D. Cary, a Delaware physician and controlled substance registrant since 2015, faced DOJ disciplinary complaints in October 2018 alleging violations of the Delaware Uniform Controlled Substance Act; his CSR was suspended pending hearing.
- A division Hearing Officer conducted an evidentiary hearing and issued a 200+ page Report and Recommendation (Sept. 23, 2020) containing detailed factual findings about multiple patients.
- The Controlled Substance Advisory Committee (CSAC) adopted the Hearing Officer’s factual findings but concluded those remedies were insufficient and recommended a 1‑year suspension of Cary’s CSR followed by a three‑year probation.
- The Secretary of State, bound to the Hearing Officer’s findings of fact but free to affirm or modify conclusions of law and sanctions, adopted CSAC’s recommendation and entered a Final Order on Jan. 11, 2021.
- The Secretary’s factual findings described a pattern of prescribing without risk‑benefit discussions or risk‑mitigation (no drug screens, no prior records, inadequate documentation), concurrent opioid/benzodiazepine prescribing without warnings, and several patients who diverted or tested positive for illicit drugs.
- Cary appealed, arguing due process and evidentiary errors at the hearing, that the Secretary delayed issuing a written suspension order in violation of 29 Del. C. § 10128(f), and that the sanction was excessive; the State defended the process, argued forfeiture of some objections, and said § 10128(f) did not apply to the Secretary/CSAC.
Issues
| Issue | Plaintiff's Argument (Cary) | Defendant's Argument (Secretary/State) | Held |
|---|---|---|---|
| Whether the Secretary’s enhanced sanction (1‑yr suspension + 3‑yr probation) was lawful/abusive | Sanction exceeds what statute/record warrant; adoption of Hearing Officer’s report contained improper evidence and produced excessive punishment | Sanction is within Secretary’s discretion, supported by Hearing Officer’s factual findings and CSAC’s review | Court: sanction upheld — within agency discretion, supported by substantial evidence, not "shocking" or an abuse of discretion |
| Whether Cary was denied due process / improperly prevented from presenting evidence or objecting to expert witnesses | Hearing process denied opportunity to present evidence and objected expert testimony should have been excluded | Cary had opportunity to be heard before the Hearing Officer and to file written exceptions to the Hearing Officer’s report before CSAC; evidentiary complaints were forfeited on appeal | Court: due process/evidentiary complaints not properly before it; Cary forfeited many objections by not raising them to CSAC; process afforded meaningful opportunity to be heard |
| Whether the Secretary violated timing rules (29 Del. C. § 10128(f)) by delaying written suspension order | Secretary was required to serve a written suspension order within 30 days after hearing | § 10128(f) does not apply to the Secretary or CSAC (not listed in APA § 10161(a)); argument displaced | Court: timing provision cited by Cary does not apply; claim not properly raised below; no statutory violation found |
| Whether the Superior Court may reweigh facts or substitute its judgment for agency | Court must independently ensure no legal error and that findings are supported by substantial evidence; Cary urges reversal | Agency findings by Hearing Officer are binding on Secretary as to facts; Superior Court reviews for substantial evidence and legal error and must defer to agency factfinding | Court: review limited to substantial‑evidence/legal‑error standard; it will not reweigh; Secretary’s findings met the standard and were affirmed |
Key Cases Cited
- Anchor Motor Freight v. Ciabattaoni, 716 A.2d 154 (Del. 1998) (defines "substantial evidence" standard for administrative review)
- Johnson v. Chrysler Corp., 213 A.2d 64 (Del. 1965) (court must not make independent factual findings when reviewing agency record)
- Nat’l Cash Register v. Riner, 424 A.2d 669 (Del. Super. 1980) (agency conclusions must be ones the agency could fairly and reasonably reach)
- Warmouth v. Del. State Bd. of Examiners in Optometry, 514 A.2d 1119 (Del. Super. 1985) (sanction review: court defers to agency unless penalty is so disproportionate as to shock one's sense of fairness)