Failure in Obligation to Self-Report Needs to be Proved

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Kevin A. Imhof (“Imhof”) appealed from the decision of the Board of Medical Licensure and Discipline (hereinafter the “Board”) finding that he engaged in unprofessional conduct. A final order of the Board (hereinafter the “Order”) found that Imhof, a Board-licensed paramedic, engaged in conduct constituting crimes substantially related to the practice of medicine; engaged in dishonorable, unethical, or other conduct likely to deceive, defraud, or harm the public; and wilfully failed to report certain conduct in a timely fashion. In Kevin Imhof v. Delaware Board Of Medical Licensure And Discipline, C. A. No. K21A-06-004 NEP, Superior Court of Delaware (January 26, 2022) a Delaware appellate court resolved some of the issues raised by the appeal.

FACTUAL HISTORY

In 2019, Imhof completed a questionnaire and underwent a pre-employment polygraph test as part of his application for a position with the Delaware State Police. On the questionnaire and during the test, Imhof made certain admissions, including the following:

he had accessed his former wife’s social media accounts, emails, and text messages without her permission during the second half of 2018;

he had driven to his former wife’s residence and had watched through an outside window while she and another individual engaged in sexual activity;

he had trespassed into his former wife’s house and committed lewd acts within; and

he had committed acts of vandalism by keying his former wife’s automobile, and then his own-to conceal his actions-and, thereafter, had filed a fraudulent insurance claim related to such damages.

In consequence, the Delaware State Police made a criminal referral. In September 2019, Imhof entered guilty pleas to the offenses of Criminal Mischief, Violation of Privacy, and Trespass with Intent to Peer or Peep. The remaining charges were dropped. Imhof did not inform the Board of the criminal charges or his convictions until he applied to renew his license in May 2020.

The hearing officer, after reviewing all the submitted and testimonial evidence, issued a written recommendation to the Board and recommended discipline. The hearing officer concluded that Imhof had violated the three statutory provisions and that by pleading guilty to two crimes the Board has determined to be “substantially related to medicine,” Imhof violated 24 Del. C. § 1731(b)(2); that Imhof had engaged in “dishonorable, unethical, or other conduct likely to deceive, defraud, or harm the public” in violation of 24 Del. C. § 1731(b)(3); and that Imhof’s report of his criminal conduct “was grossly untimely” in that he had waited nine months following his arrest to report the matter to the Board, thus violating 24 Del. C. § 1731(b)(14).

The hearing officer’s recommended discipline included suspension of Imhof’s Paramedic license.

DISCUSSION

Hearing Officer’s Recommendation

Administrative agencies operate less formally than courts of law. Accordingly, rules of evidence do not strictly apply to administrative hearings. The Board may hear all evidence which could conceivably throw light on the controversy. Only when the hearsay is incompetent will the Board’s reliance on such testimony be deemed an abuse of discretion. However, the Board should apply the rules of evidence insofar as practicable.

As to the evidentiary issue, Imhof’s conduct reported to the polygraph operator, at times, overstretched the bounds of relevance to the proceeding. Therefore, to the extent that this evidence was improperly admitted, the admission constituted harmless error.

The Board’s “Case Decision”

Delaware statutes find that unprofessional conduct is conduct that would constitute a crime substantially related to the practice of medicine. The Board has the power and duty to designate crimes that it deems substantially related to the practice of medicine. In addition, the Court has previously found that the Board followed the proper procedures in enacting Regulation 15.

Imhof’s primary argument regarding the “case decision” is that his conduct was not substantially related to the practice of medicine. However, two of Imhof’s pled offenses, Violation of Privacy and Trespassing with Intent to Peer or Peep, are listed among the crimes substantially related to the practice of medicine found in Regulation 15. Thus, there is no dispute that Imhof pled guilty to two of the listed crimes.

The Board, under its powers and duties, “shall” and did designate certain crimes to be substantially related to the practice of medicine and went through the proper administrative procedures to do so by enacting Regulation 15. There was substantial evidence both through Imhof’s own admissions in his questionnaire and polygraph, and by means of his guilty pleas, to find that the crimes were committed. Hence, by the authority of Regulation 15, the crimes are deemed “substantially related to the practice of medicine.”

The Board has promulgated a list of “dishonorable or unethical” conduct under Regulation 8. According to Regulation 8, “[t]he phrase ‘dishonorable or unethical conduct likely to deceive, defraud, or harm the public’ … shall include, but not be limited to . . . [a]ny . . . act tending to bring discredit upon the profession.” It is not difficult to perceive how the admitted wrongful conduct and actions would bring discredit to the profession.

The appellate court concluded that there was substantial evidence to support the finding by the Board that Imhof violated the statute by committing acts likely to “harm the public” and “discredit” the profession.

Without reversing the Board on the requirement to self-report, the court remanded the matter to the Board for further consideration of whether a wilful failure to report has been established and to consider whether the discipline imposed should be modified in light of any additional consideration of these matters by the Board.

The Court affirmed the Board’s finding that Imhof engaged in conduct constituting crimes substantially related to the practice of medicine in violation of statute and that he engaged in dishonorable, unethical, or other conduct likely to deceive, defraud, or harm the public. However, further inquiry by the Board is needed regarding whether Imhof wilfully failed to report certain conduct and whether, as a result of that inquiry, the discipline imposed should be modified.

ZALMA OPINION

The appellate court, dotting every “i” and crossing every “t” sent the case back to the Board to determine whether the failure to prove that Imhof intentionally failed to report his crimes to the Board, and whether that had any effect on the punishment. The criminal conduct should have been sufficient so, I expect, the Board will reconsider and then suspend the license.

© 2022 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders.

He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business.

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