224 A.3d 939
Del.2020Background:
- Patient “Michael” had a documented history of opioid addiction and recent Suboxone treatment; he presented to Grossinger Neuropain Specialists (GNS) in Jan. 2014 and died of a heroin overdose in Dec. 2014.
- GNS physicians (including Dr. Bruce Grossinger) prescribed oral opioid medications; a urine drug screen requested in June 2014 was missed and not rescheduled until December, while refills continued.
- The Division hearing officer found Dr. Bruce Grossinger violated Board Regulations 18.1.1 (document substance-abuse history), 18.3 (discuss risks/benefits), 18.4 (enforce pain-management agreements/urine testing), 18.5 (periodic review), 18.7 (accurate records), and 24 Del. C. § 1731(b)(3); recommended probation, CME, and fine.
- The Board adopted the findings but lessened discipline to a letter of reprimand (retaining CME and fine); Dr. Grossinger appealed to Superior Court.
- The Superior Court reversed all findings except the 18.3 violation, concluding the regulations were unconstitutionally vague as applied and that expert testimony was required; the Delaware Supreme Court reversed the Superior Court and reinstated the Board’s order.
- The Supreme Court held (a) the APA applies and requires deference to the Board on factual findings, (b) expert testimony was not required to interpret the regulations, (c) the regulations were not vague as-applied, and (d) the Board’s findings were supported by substantial evidence.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert evidence was required to establish the reasonable-physician standard implicit in Board regulations | Grossinger: standard-of-care is a factual/malpractice-type question; expert testimony was required and absent | Board: interpreting its regulations and the implicit standard is a legal question; Board may rely on its own expertise without expert witnesses | Expert testimony not required; the implicit standard is a question of law for the Board to interpret |
| Whether the regulations are unconstitutionally vague (as-applied) and deny fair notice | Grossinger: regulations are too general (e.g., "periodic review", urine testing frequency) and gave no ex ante notice of required conduct | Board: regulations incorporate an objective reasonable-physician standard and permit reference to clinical guidelines; they provide adequate notice | Regulations not unconstitutionally vague as-applied; objective reasonable-physician standard gives adequate notice |
| Whether lack of expert evidence violated due process (notice and confrontation) | Grossinger: absence of expert testimony deprived him of notice of the standards and the opportunity to confront the evidence used to define them | Board: judicial deference to the Board’s legal interpretation means confrontation of expert evidence is not required for statutory/regulatory interpretation | No due process violation; the standard’s interpretation is legal, not a factual matter requiring confrontation |
| Whether the Board's findings (Regs 18.1.1, 18.3, 18.4, 18.5, 18.7, §1731) were supported by substantial evidence | Grossinger: challenged sufficiency, particularly re: 18.3 (risks/benefits discussion) | Board: hearing record supports findings (missed urine screen, lack of documentation, no review of addiction-treatment records, refills despite noncompliance) | Substantial evidence supports each regulatory violation and §1731 discipline; Supreme Court reinstated Board order |
Key Cases Cited
- Bilski v. Bd. of Med. Licensure & Discipline, 115 A.3d 1214 (Del. 2015) (upholding Board reliance on record and Board expertise; expert testimony not required to interpret regulations)
- Stoltz Mgmt. Co. v. Consumer Affairs Bd., 616 A.2d 1205 (Del. 1992) (courts must take due account of agency experience and specialized competence under APA review)
- Dep’t of Health & Soc. Servs. v. Jain, 29 A.3d 207 (Del. 2011) (standards governing review of statutory construction and mixed questions)
- Grayned v. City of Rockford, 408 U.S. 104 (1972) (vagueness doctrine: statutes/regulations must give persons of ordinary intelligence fair warning)
- Robelen Piano Co. v. Di Fonzo, 169 A.2d 240 (Del. 1961) (distinguishing tort jury role in formulating fact-specific standard of care)
- United States v. Salerno, 481 U.S. 739 (1987) (distinguishing facial and as-applied constitutional challenges)