Kotler v. Board of Medical Practice

• Decision Date: 15 June 1993
• Docket Number: No. 82,1993,82,1993
• Citation: 630 A.2d 1102
• Parties: Barry M. KOTLER, M.D., Respondent Below, Appellant, v. BOARD OF MEDICAL PRACTICE, Complainant Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 1102

630 A.2d 1102

Barry M. KOTLER, M.D., Respondent Below, Appellant, v. BOARD OF MEDICAL PRACTICE, Complainant Below, Appellee.

No. 82,1993.

Supreme Court of Delaware.

Submitted: June 15, 1993.

Decided: July 29, 1993.

Court Below: Superior Court of the State of Delaware in and for Kent County, C.A. No. 92A-03-004.

AFFIRMED.

Before VEASEY, Chief Justice, and MOORE and WALSH, Justices.

ORDER

This 29th day of July, 1993, it appears to the Court that:

(1) Respondent/appellant, Barry M. Kotler, M.D. ("Kotler"), appeals from a decision of the Superior Court dated January 19, 1993, affirming a decision of the Board of Medical Practice (the "Board") finding him guilty of dishonorable or unethical conduct likely to deceive the public, and ordering a public reprimand.

(2) Kotler practiced family and occupational medicine in Milford and Dover, Delaware from 1978 until 1987. In late 1985 the Board informed Kotler that a complaint had been filed against him and warned that a formal investigation would be conducted if additional complaints were received. Several complaints were subsequently filed and a formal investigation commenced in June 1986. The Board deputized Dr. Charles Allen ("Allen"), Assistant Director of the Emergency Room and Director of Occupational Medicine at Kent General Hospital, to conduct the investigation. Allen reviewed Kotler's patient charts over a seven month period from January 1986 to July 1986. He then selected five procedures Kotler frequently performed and had Assistant State Solicitor Malcolm S. Cobin ("Cobin") subpoena a list of Kotler's patients for whom Blue Cross was billed for such procedures. The list was compared to the patient charts to determine whether Kotler's notes were consistent with the billing sheets he submitted to Blue Cross.

(3) On February 1, 1991, Kotler was notified that a formal complaint was filed by the Board's Investigating Committee. He was served with a 23-count complaint on February 11, 1991. The complaint charged Kotler with engaging in dishonorable or unethical conduct likely to deceive, defraud or harm the public, 24 Del.C. § 1731(b)(3); gross misconduct, negligence or incompetence in the practice of medicine, 24 Del.C. § 1731(b)(11); and charging a grossly exorbitant fee for professional services rendered, 24 Del.C. § 1731(b)(19). Kotler was informed that a hearing would be held on March 8, 1991. At Kotler's request, the hearing was continued. He filed a formal response to the complaint.

(4) The hearing convened on October 18, 1991 before a panel of three and was continued on October 25. The Hearing Panel ("Panel") consisted of Thomas C. Scott, D.O., Stephen Hershey, M.D., and Ruth Horowitz, Ph.d. The Panel was represented by Assistant State Solicitor Cobin who attended the hearing and participated in the proceeding and in the Panel's deliberations. The Panel concluded that Kotler was guilty only of engaging in dishonorable or unethical conduct likely to deceive the public based upon his billings to Blue Cross/Blue Shield. The Panel reported these findings to the Board and recommended that Kotler receive a public reprimand. On January 17, 1992, the Board informed Kotler that a hearing would be held on March 3, 1992, to determine whether the Board should accept the recommendations of the Panel.

(5) The Board adopted the Panel's recommendations on March 3, 1992. On March 25, 1992, the Board issued an order explaining that Kotler's conduct of performing unnecessary tests on patients and charging Blue Cross for procedures that were not noted in the patient files was unethical pursuant to 24 Del.C. § 1731(b)(3). The Board further concluded that a public reprimand was appropriate because Kotler's conduct did not involve a substantial sum of money, did not involve patient care, and Blue Cross did not file any complaints against the doctor. A public reprimand was ordered and Kotler filed an appeal in the Superior Court on March 27, 1992. On January 19, 1993, the Superior Court affirmed the decision of the Board following briefing, but without oral argument. Kotler appeals from that ruling on several grounds.

(6) Kotler first contends that he was denied due process as a result of the Board's five-year delay in bringing the action against him and that the action should have been barred under the doctrine of laches. In support of this claim, Kotler argues that the delay substantially prejudiced his defense in several respects. First, he claims that the delay prevented him from reviewing his files when they were fresh in his mind and resulted in the loss of potentially exculpatory evidence. Second, he claims that his nurse, Diane Jester, would have been able to recall specific information regarding Blue Cross billing that was impossible for her to recall as a result of the delay. Third, Kotler argues that he was further prejudiced because the delay rendered it impossible for him to present witnesses who were familiar with his files such as his patients, employees, and Blue Cross representatives. In addition to other claims, Kotler finally asserts that the Board has no valid excuse for the delay. While the five-year delay certainly presents serious due process concerns and appears to be most inappropriate, Kotler did not suffer undue prejudice as a result.

(7) The Court's application of the Due Process Clause to governmental administrative action is premised upon the need for protection of individual property interests, such as a physician's professional license, from erroneous governmental deprivation. Atkins v. Parker, 105 S.Ct. 2520, 2538 (1985). In the case of Mathews v. Eldridge, 96 S.Ct. 893 (1976), the United States Supreme Court established a three-prong test to be used when determining what due process requires when physical liberty is not endangered. Three distinct factors must be considered:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative...