Bilski, D.O. v. Board of Medical Licensure and Discipline.

• Court: Superior Court of Delaware
• Decided: October 16, 2014
• Docket: 13A-10-005
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

WILLIAM F. BILSKI, D.O., ) Appellant, ) C. A. No.: N13A-10-005 VLM ) v. ) ) THE BOARD OF MEDICAL ) LICENSURE AND DISCIPLINE ) OFTHE STATE OF DELAWARE, ) Appellee. )

Submitted: September 18, 2014 Decided: October 16, 2014

Upon Consideration of Appellant’s Motion for Reargument, DENIED.

ORDER

Victor F. Battaglia, Esquire, Biggs and Battaglia, Wilmington, DE, Attorney for Appellant.

Patricia Davis Oliva, Deputy Attorney General, Department of Justice, Dover, DE, Attorney for Appellee.

MEDINILLA, J. On this 16th day of October, 2014, upon consideration of Appellant’s

Motion for Reargument, it appears to the Court that:

1. On June 30, 2014, this Court issued an Opinion 1 affirming the

decision of the Board of Medical Licensure and Discipline (the “Board”), which

found Appellant William F. Bilski, D.O. (“Dr. Bilski”) guilty of unprofessional

conduct. 2 Dr. Bilski filed a timely Motion for Reargument, and a hearing was held

on September 18, 2014.3 This is the Court’s decision after review of the parties’

written briefs and oral arguments.

2. Under Superior Court Civil Rule 59(e), the Court may in its discretion

grant a Motion for Reargument. A Motion for Reargument will be denied unless

the Court has overlooked a precedent or legal principle that would have controlling

effect, or misapprehended the law or facts such as would affect the outcome of the

decision.4 A motion for reargument is not intended to rehash arguments already

decided by the Court, 5 or to present new arguments not previously raised. 6

1 Bilski v. Bd. of Med. Licensure & Discipline of Delaware, C.A. No. N13A-10-005 VLM, 2014 WL 3032703 (Del. Super. Ct. June 30, 2014) (hereinafter “Op.”) 2 Under 24 Del. C. §1731(b)(11) (engaging in a pattern of negligence in the practice of medicine). 3 The State filed a Response to the Motion for Reargument. Thereafter, Dr. Bilski filed a Motion to Strike the State’s Response to the Motion for Reargument. Finding the Motion to Strike to be without merit, this Court denied the motion in a bench ruling on September 18, 2014. 4 Woodward v. Farm Family Cas. Ins. Co., 2001 WL 1456865, at * 1 (Del. Super. Ct. Aug. 24, 2001). 5 Kennedy v. Invacare Corp., 2006 WL 488590, at *1 (Del. Super. Ct. Jan. 31, 2006). 2 3. Dr. Bilski contends that this Court’s June 30, 2014 Opinion crucially

misapprehends the factual record and overlooks controlling principles of law

because (1) the record is devoid of evidence of deficient documentation in his

records-keeping practices from 2009 to 2011; (2) the Board violated his due

process rights because it did not adequately notify him of the standards he was

found to have violated; (3) medical negligence must be proven by expert

testimony; and (4) the Complaint against him did not meet a particularized

pleading standard that Dr. Bilski argues should apply. The Court will address each

claim seriatim.

4. Dr. Bilski’s first argument reiterates his earlier contention that the

Hearing Officer’s findings of fact were fundamentally flawed because the Report

relied upon the Model Policy’s “guidelines” for documentation that were not

binding on him from 2009 through 2011. This argument was the central premise

of Dr. Bilksi’s original appeal to the Board, and was briefed and argued at length

prior to this Court’s June 30, 2014 Opinion. Indeed, this Court’s June 30 Opinion

squarely addressed this issue. This Court determined that any error on the part of

the Hearing Officer which may have resulted from improper reliance on the non-

binding Model Policy guidelines from 2009-2011 was cured by the Board’s

6 Plummer v. Sherman, C.A. No. 99C-08-010, 2004 WL 63414, at *2 (Del. Super. Ct. Jan 14, 2004). 3 deliberations on the record. 7 Because Dr. Bilski’s first claim merely reiterates an

argument previously addressed by this Court, he does not offer a basis for

reargument under Rule 59.

5. Dr. Bilski’s second argument – that the Complaint did not give

constitutionally sufficient notice – was previously considered and rejected by this

Court. Dr. Bilski has not cited any controlling case law or legal principle that

could disturb this Court’s prior ruling on this issue. Again, Dr. Bilski fails to

establish a basis for reconsideration under Rule 59.

6. Third, Dr. Bilski again fails to cite any precedent that would suggest

that expert testimony is necessary in the context of an administrative hearing to

determine whether professional licensing standards have been breached. Indeed,

as noted in the Opinion, to require such testimony – akin to that which is required

in a medical negligence action – would frustrate the Board’s proper administrative

and adjudicative functions.8

7. Dr. Bilski’s final argument is also without merit. He claims that 24

Del. C. §1733(d) supersedes the notice pleading standards set forth in the Delaware

Rules of Civil Procedure. Nothing in the statutory scheme supports this

contention. Dr. Bilski cites no case law to support his argument that more

7 Op. at 16-17. 8 See Op. at 12. 4 particularized pleadings are required in this context, and fails to persuade this

Court that its previous ruling on this issue was incorrect.

8. The instant motion fails to meet the standard for a Motion for

Reargument set forth under Superior Court Civil Rule 59(e), and simply re-hashes

arguments that were addressed at length and rejected by this Court’s June 30th

Opinion. Accordingly, the motion is DENIED.

IT IS SO ORDERED.

/s/ Vivian L. Medinilla Judge Vivian L. Medinilla