WILLIAM F. BILSKI, D.O., Appellant,
THE BOARD OF MEDICAL LICENSURE AND DISCIPLINE OF THE STATE OF DELAWARE, Appellee.
Submitted: March 26, 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,
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.
Judge Vivian L. Medinilla
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 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.
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,  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. 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.Dr. Bilski consistently failed to document physical examinations,  any comprehensive pain assessment,  or to indicate any treatment plan outline. 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. His medical records were unclear as to when prescriptions were issued, when refills were ordered,  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.
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. During that time, the evidence presented showed that Dr. Bilski did not document any comprehensive pain evaluation,  offer alternative treatment options,  or make an appropriate referral to a pain management specialist. He failed to screen for risk of drug abuse,  or speak to his patient regarding the risks associated with prolonged use of controlled substances. This patient's records, just as with the first patient's, are ambiguous as to when medicines were prescribed and refilled.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.The testimony included that Dr. Bilski suspected one patient might have been selling pills or forging prescriptions. Regrettably, the records do not contain any indication that Dr. Bilski ever did anything about it, including checking with the pharmacy filling the prescription.
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 failed to give adequate notice of the charges.  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 ...