DELAWARE BOARD OF MEDICAL LICENSURE AND DISCIPLINE, Appellee Below, Appellant,
BRUCE GROSSINGER, D.O., Appellant Below, Appellee.
October 23, 2019.
Closed January 24, 2020.
Below: Superior Court of the State of Delaware. C.A. No.
A. Davis, Esquire (argued), and Zoe Plerhoples, Esquire,
Department of Justice, Wilmington, Delaware, Counsel for
Logan, Esquire (argued), Post & Schell, P.C. Wilmington,
Delaware; James J. Kutz, Esquire, Harrisburg, Pennsylvania,
Counsel for Appellee.
SEITZ, Chief Justice; VALIHURA, VAUGHN, and TRAYNOR,
Justices; RYAN, Judge,[*] constituting the Court en Banc.
Delaware Board of Medical Licensure and Discipline (the
" Board" ) reprimanded Dr. Bruce Grossinger ("
Dr. Grossinger" ), a physician, for violating various
regulations governing the use of controlled substances for
the treatment of pain. In particular, the Board adopted the
detailed report and recommendation of a Division of
Professional Regulation hearing officer, who had found that
Dr. Grossinger, in his care of a heroin-addicted patient
(" Michael" ), had not complied with the
Board's rules and regulations. Specifically, the Board
found that Dr. Grossinger failed to, among other things,
document Michael's history of substance abuse, discuss
with Michael the risks and benefits of treatment with
controlled substances, order urine samples or require pill
counts, and keep accurate and complete treatment
conducting a two-day evidentiary hearing, the hearing officer
recommended that the Board find Dr. Grossinger guilty of
unprofessional conduct and discipline him by placing his
medical license on probation for six months and requiring him
to complete additional medical education and pay a $2000
fine. The Board adopted the hearing
officer's findings but reduced Dr. Grossinger's
discipline from probation to a letter of reprimand.
Grossinger appealed the Board's decision to the Superior
Court, which reversed on all but one of the five findings.
The Superior Court's reversal of the Board rested on
several legal conclusions, including
that some of the regulations that Dr. Grossinger was said to
have violated were unconstitutionally vague as applied to
him, that expert testimony was required to establish the
standard of care under the regulations, and that Dr.
Grossinger's due process rights were violated because the
Board relied on evidence— its own expertise—
outside the record. The parties cross-appealed. The Board
appeals the Superior Court's reversal of all but one of
the findings, and Dr. Bruce Grossinger appeals the Superior
Court's failure to reverse the final finding. We disagree
with the Superior Court's reversal of the Board's
decision and, therefore, we reverse.
factual record before the Board was developed at an
evidentiary hearing conducted by the hearing officer. Under
the statute governing such hearings, the Board was bound by
the officer's factual findings. The hearing officer heard
testimony of five witnesses, including Dr. Grossinger, his
two partners who were charged with the same violations, and
an expert called to testify on their behalf.
following treatment history shows, the last few years of
Michael's life, which came to a tragic end on December
12, 2014 as a result of a heroin overdose, were marked by
pain and addiction. Although Michael died while under the
care of Grossinger Neuropain Specialists (" GNS" ),
the medical practice with which Dr. Grossinger is associated,
it is important to emphasize here that the Board did not
charge Dr. Grossinger or his partners with causing
Michael's death. Michael's death did, however,
provide the impetus for his grieving mother's complaint
to the Division of Professional Regulation and the resulting
investigation and disciplinary proceeding. We will therefore
begin our discussion with a rudimentary history of
Michael's pain-management treatment and its
inter-relationship with his opiate addiction.
A. Michael's medical history
Michael had been in two or three motor vehicle accidents: one
in 2008 and one in either 2010 or 2011. After the 2008
collision, Michael sought treatment for his accident-related
pain with Dr. Ross Ufberg. After the second accident, Michael
continued to see Dr. Ufberg, who prescribed Lyrica and
Oxycodone. Lyrica is not an opiate, but Oxycodone
is. In March 2011, Dr. Ufberg discharged
Michael " due to inconsistencies in his urine drug
Shortly thereafter, Michael again sought treatment for pain,
this time with Dr. Damon Cary. Dr. Cary prescribed
Roxicodone and MS Contin, both of which are
opiates. Michael continued to follow-up with
Dr. Cary through July 17, 2012.
some point during his pain treatment, Michael became addicted
to opiates— specifically, heroin. In December of 2013,
Michael sought treatment for his addiction with Dr. Irwin L.
Lifrak, who prescribed Suboxone " to assist in
[Michael's] detoxication from opioids, such as heroin,
Percocet, oxycontin, oxycodone[,] or hydrocodone."
 Suboxone is the brand name for a
combination of buphrenorphine, an opiate, and naloxone, an
opiate antagonist. Its only use is for treating opiate
addictions— it is not used to treat pain.
Michael's treatment with Dr. Lifrak abruptly ended after
one month, on January 14, 2014, when Michael tested positive
for heroin, as a result of which he was discharged from Dr.
B. Michael presents to GNS
weeks later, on January 29, 2014, Michael presented to GNS, a
medical practice located in Wilmington that specializes in
pain treatment. GNS has three principals: Dr. Steven
Grossinger, Dr. Grossinger (the Appellee), and Dr. Jason
Brajer. Dr. Allen Silberman also works with
GNS, and his name appears on GNS's letterhead, but he is
considered an " independent psychologist."
 Dr. Silberman performs psychosocial
studies and evaluates pain status for GNS patients— a
service he also provides to Dr. Lifrak.
Michael presented to GNS, he signed a pain-management
agreement, which provided that: (a) he would comply with
" any random drug test" that GNS physicians felt
was necessary, and (b) if he broke the agreement, GNS "
will stop prescribing" pain-control medicines
and " will discharge [him] from the
practice."  That same day, two doctors, Dr.
Steven Grossinger and Dr. Silberman, evaluated him and
produced written reports regarding their
Silberman's report provided details about Michael's
recent care. Among other things, it noted that Michael "
suffers an opiate addiction that started five years ago as
the result of Oxycodone and Morphine prescriptions from his
physician" and that Michael was treating with Dr.
Lifrak, " who also manages his Suboxone[,] which is used
for opiate dependence." 
Steven Grossinger's report took the form of a letter to
Michael's primary care doctor and described the results
examination, which consisted of an MRI, an
EMG, and nerve-conduction
studies. In this report, Dr. Steven
Grossinger noted that Michael had " not had treatment of
his pain over the last year" but " had gotten
Suboxone last month though it was not refilled."
 The report did not, however, mention
why Michael was taking Suboxone. When questioned about
Michael's Suboxone treatment, Dr. Steven Grossinger
testified that he only found out about Michael's heroin
addiction a few days prior to testifying.
Accordingly, the hearing officer found that Dr. Steven
Grossinger " did not know why Michael was treating with
Dr. Lifrak with Suboxone," which strongly suggests that
Dr. Steven Grossinger did not read Dr. Silberman's
Steven Grossinger also testified, and the hearing officer
found, that he did not obtain Michael's medical records
from either Dr. Lifrak or Dr. Cary; therefore, he was
ignorant of whether Michael had been compliant with Dr.
Lifrak or Dr. Cary's treatment. Nor did Dr.
Steven Grossinger obtain Michael's medical records from
Michael's primary care physician, Dr. Yezdani, who had
referred Michael to GNS. Dr. Yezdani's records
indicated that he had been prescribing Alprazolam and Xanax
for Michael— prescriptions that Dr. Steven Grossinger
conceded he would consider in treating Michael due to the
" potential ill effects of multiple medications."
C. Michael's Treatment at GNS
record shows that Dr. Brajer and Dr. Steven Grossinger, but
not Dr. Grossinger, met with Michael to treat his pain
several times between his initial presentation and his death
on December 12, 2014. Initially, Michael presented for
treatment about once per month and was prescribed oral
medications including opiates, such as Hydrocodone and
Morphine Sulfate, during that time. Notably, however,
a June 18, 2014 appointment with Dr. Brajer, at which a urine
drug screen was to be conducted— the first such screen
scheduled during the five months Michael had been, at that
point, under GNS's care— was cancelled due to a
" lapse in insurance."  After
this missed urine drug screen, Dr. Grossinger, who had never
previously met Michael, refilled Michael's prescriptions
for Hydrocodone and Morphine Sulfate on three separate
follow-up visit was scheduled for July 30, 2014. Michael
showed up for this visit, during which Dr. Brajer increased
Michael's Hydrocodone dosage, but his scheduled injection
was cancelled because his insurance carrier denied
coverage. The missed urine drug screen from
June 18 was not performed at this follow-up
Michael then cancelled his next appointment, scheduled for
September 3, claiming illness. Despite the
outstanding urine drug screen and the recently missed
appointment, Dr. Grossinger refilled Michael's
Hydrocodone and Morphine Sulfate prescriptions
again. Michael then canceled another
appointment, which was scheduled for October
27. On November 12, Dr. Grossinger again
refilled Michael's prescriptions, even though
Michael's treatment record as of that date showed that
the June urine screen had not been rescheduled and that
Michael had recently missed or cancelled two appointments.
The doctor noted, however, that any further refills were
contingent upon making— and keeping— an
appointment at the GNS offices.
Michael showed up to his next appointment on December 8, when
he was seen by Dr. Steven Grossinger, and provided a urine
sample for screening. On December 12, 2014, Michael
passed away from a heroin overdose. GNS, unaware of
his death, discharged Michael as a patient on December 14,
2014, because the urine sample " was abnormal which is
indicative of Heroin metabolite." 
D. Board Proceedings.
Michael's death, in response to a complaint his mother
filed with the Division of Professional Regulation against
GNS and its three physicians, the State investigated and
filed separate formal complaints against Dr. Brajer, Dr.
Steven Grossinger, and Dr. Grossinger. The State charged Dr.
Grossinger with violating 24 Del. C. § 1731(b)(3) and 24 Del.
C. § 1731(b)(11). Those two subsections of § 1731
allow the Board to discipline practitioners for
unprofessional conduct or misconduct; such misconduct is
defined in Board Regulation 8.1 as including " [f]ailure
to adequately maintain and properly document patient
records," which encompasses violations of other Board
Regulations, including the ones at issue in this case.
Because the complaints arose out of the same set of operative
facts, the parties agreed to a consolidated evidentiary
hearing in front of a single hearing officer. After a two-day
evidentiary hearing, the hearing officer found all three
doctors guilty of regulatory violations. Drs. Brajer and
Steven Grossinger did not appeal.
Accordingly, we only concern ourselves with the findings as
they relate to Dr. Grossinger.
1. Violation of Board Regulation 18.1.1.
hearing officer first found that Dr. Grossinger violated
Board Regulation 18.1.1, which requires physicians
prescribing controlled substances for the treatment of pain
to " obtain, evaluate, and document" a "
medical history and physical examination." That medical