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Delaware Board of Medical Licensure and Discipline v. Grossinger

Supreme Court of Delaware

January 8, 2020

DELAWARE BOARD OF MEDICAL LICENSURE AND DISCIPLINE, Appellee Below, Appellant,
v.
BRUCE GROSSINGER, D.O., Appellant Below, Appellee.

         Submitted October 23, 2019.

          Case Closed January 24, 2020.

Page 940

         Court Below: Superior Court of the State of Delaware. C.A. No. N16A-11-001.

         COUNSEL:

         Patricia A. Davis, Esquire (argued), and Zoe Plerhoples, Esquire, Department of Justice, Wilmington, Delaware, Counsel for Appellant.

         Paul A. Logan, Esquire (argued), Post & Schell, P.C. Wilmington, Delaware; James J. Kutz, Esquire, Harrisburg, Pennsylvania, Counsel for Appellee.

         Before SEITZ, Chief Justice; VALIHURA, VAUGHN, and TRAYNOR, Justices; RYAN, Judge,[*] constituting the Court en Banc.

         OPINION

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         TRAYNOR, Justice:

          The Delaware Board of Medical Licensure and Discipline (the " Board" ) reprimanded Dr. Bruce Grossinger (" Dr. Grossinger" ),[1] 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 records.[2]

          After 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.[3] The Board adopted the hearing officer's findings but reduced Dr. Grossinger's discipline from probation to a letter of reprimand.

          Dr. 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

Page 942

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.

          I. FACTS

          The 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.[4] 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.

          As the 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.[5] After the 2008 collision, Michael sought treatment for his accident-related pain with Dr. Ross Ufberg.[6] After the second accident, Michael continued to see Dr. Ufberg, who prescribed Lyrica and Oxycodone.[7] Lyrica is not an opiate, but Oxycodone is.[8] In March 2011, Dr. Ufberg discharged Michael " due to inconsistencies in his urine drug screen." [9]

          Shortly thereafter, Michael again sought treatment for pain, this time with Dr. Damon Cary.[10] Dr. Cary prescribed Roxicodone and MS Contin,[11] both of which are

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opiates.[12] Michael continued to follow-up with Dr. Cary through July 17, 2012.[13]

          At 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." [14] Suboxone is the brand name for a combination of buphrenorphine, an opiate, and naloxone, an opiate antagonist.[15] Its only use is for treating opiate addictions— it is not used to treat pain.[16] 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. Lifrak's care.[17]

          B. Michael presents to GNS

          Two weeks later, on January 29, 2014, Michael presented to GNS, a medical practice located in Wilmington that specializes in pain treatment.[18] GNS has three principals: Dr. Steven Grossinger, Dr. Grossinger (the Appellee), and Dr. Jason Brajer.[19] Dr. Allen Silberman also works with GNS, and his name appears on GNS's letterhead, but he is considered an " independent psychologist." [20] Dr. Silberman performs psychosocial studies and evaluates pain status for GNS patients— a service he also provides to Dr. Lifrak.[21]

          When 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." [22] That same day, two doctors, Dr. Steven Grossinger and Dr. Silberman, evaluated him and produced written reports regarding their evaluation.[23]

          Dr. 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." [24]

          Dr. Steven Grossinger's report took the form of a letter to Michael's primary care doctor and described the results of Michael's

Page 944

examination, which consisted of an MRI,[25] an EMG,[26] and nerve-conduction studies.[27] 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." [28] The report did not, however, mention why Michael was taking Suboxone.[29] 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.[30] 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 report.[31]

          Dr. 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.[32] Nor did Dr. Steven Grossinger obtain Michael's medical records from Michael's primary care physician, Dr. Yezdani, who had referred Michael to GNS.[33] 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." [34]

          C. Michael's Treatment at GNS

          The 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.[35] 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.[36] 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." [37] After

Page 945

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 occasions.[38]

          A 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.[39] The missed urine drug screen from June 18 was not performed at this follow-up visit.[40]

          Michael then cancelled his next appointment, scheduled for September 3, claiming illness.[41] Despite the outstanding urine drug screen and the recently missed appointment, Dr. Grossinger refilled Michael's Hydrocodone and Morphine Sulfate prescriptions again.[42] Michael then canceled another appointment, which was scheduled for October 27.[43] 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.[44]

          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.[45] On December 12, 2014, Michael passed away from a heroin overdose.[46] 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." [47]

          D. Board Proceedings.

          After 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).[48] 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.[49] Drs. Brajer and Steven Grossinger did not appeal.

Page 946

Accordingly, we only concern ourselves with the findings as they relate to Dr. Grossinger.

          1. Violation of Board Regulation 18.1.1.

          The 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 ...


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