IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

 )

PAUL J. HANNAN, M.D., )

 ) 

Appellant, )

 )

v. ) C.A. No. N18A-02-001 JAP

 )

DELAWARE BOARD OF MEDICAL )

LICENSURE AND DISCIPLINE, )

 )

Appellee. )

MEMORANDUM OPINION

Appellant is a physician whose license was revoked by the 

Board of Medical Practice and Licensure for, in the words of the 

Hearing Officer, “enabling a criminal drug gang in Pennsylvania by 

providing them with a regular source of controlled substance 

prescriptions to be sold on the street.” The physician now seeks a 

stay of the revocation of his license pending the results of this 

appeal. It is manifest on the face of his application that he has not 

alleged any substantial issue to be raised on the appeal. Therefore, 

even though the State has stipulated to a stay, the court will deny 

it.
2

A. Facts

The Board summarized the evidence before the Hearing Officer in 

part as follows:

Based on the testimony of the State’s expert, the 

hearing officer found as a matter of fact that Dr. 

Hannan’s practice of prescribing opioids ignored a 

number of “red flags,” that indicate that his patients 

were seeking controlled substances for nontherapeutic purposes. Dr. Hannan requested MRI 

reports from his patients at the time of their initial 

presentation, but made little to no effort to secure any 

charting of prior pain management physicians. Dr. 

Hannan ignored point-of-care urine screens that 

indicated patients may be taking prescriptions, or 

other opioids, that he was not prescribing. Dr. Hannan 

required the execution of a pain management contract, 

but did little to enforce the terms of these agreements. 

Physical examinations were never performed, pursuant 

to the testimony of the patients highlighted in this 

hearing, and this is corroborated by the medical 

records that include no indication that physical 

examinations were performed. Dr. Hannan’s medical 

records hardly ever included diagnoses, and 

medications were increased without documented 

rationale. Dr. Hannan’s files did contain “short form” 

and “long form” disclosures about the risks and 

benefits of taking controlled substances, but the 

hearing officer found these were fill in the blank forms 

that weren’t filled in, and referenced discussions of 

risks and benefits occurring elsewhere without 

documentation of any other discussion of the risks 

and benefits. The hearing officer found as a matter of 

fact the Dr. Hannan engaged in discussions with his 

patients including discussions of Dr. Hannan’s Nurse 

Practitioner’s family situation, as well as multiple 

conversations about Dr. Hannan being investigated by 

the DEA. Finally, the hearing officer found as a matter 

of fact that on April 22, 2015, Dr. Hannan was 

arrested and charged with knowingly and unlawfully 

carrying a concealed loaded handgun in his briefcase, 

a misdemeanor offense for which he pled guilty, but 

successfully completed probation before judgment.
3

The State based its case against Dr. Hannan on his treatment 

of eight patients. The court need not detail the evidence relating to 

each patient at this point. Suffice it to say, the Board found that 

the “record of how these patients were treated is deplorable.” The 

following are illustrative points: 

 Dr. Hannan repeatedly prescribed opioid medications for 

patients without documenting any justification for doing 

so. He increased dosages even though there was no 

report of new symptoms or increase pain, and in at least 

one case ordered an increase in dosage even though he 

recorded that the patient reported she was doing well.

 Urine drug screens frequently were negative for the 

opioids he was prescribing, suggesting that the patient 

might be diverting the medication rather than taking it.

 On some occasions Dr. Hannan prescribed Oxymorphone 

(a drug with twice the potency of Oxycodone) without any 

justification being apparent from his records.

 The Pennsylvania Prescription Monitoring Program 

(“PMP) record shows that roughly 53 of Dr. Hannan’s 

patients filled their prescriptions in Pennsylvania 
4

pharmacies. The PMP for one patient illustrates how 

quickly and freely he handed out prescriptions for pain 

killers:

o Initial prescription: 90 Oxycodone (30 mg.) and 56 

Oxycodone (15 mg).

o Prescription changed to 84 30mg and 84 15mg. 

later.

o When patient reported this was “not enough” Dr. 

Hannan increased the Oxycodone 30mg tabs from 

84 to 160.

o April 11, 2013: Appellant prescribed 160 

Oxycodone 30mg tabs for the patient.

o Six days later (April 17) he prescribed 58 Oxycodone 

5mg tabs for the same patient.

o May 10, 2013: Appellant prescribed 124 Oxycodone 

30mg and 62 Oxymorphone 5mg tabs to the patient.

 Many of Dr. Hannan’s patients came from out of state. 

According to one patient ostensibly living in Elkton, MD, 

Dr. Hannan knew that the patient actually resided in 

Kentucky and travelled by train to Elkton to obtain 
5

prescription. Another patient estimated that 35 to 40 of 

Dr. Hannan’s patients resided in Shamokin, 

Pennsylvania, which is 115 miles (and roughly a threehour drive) from appellant’s office.

 One patient wore an audio recording/transmitting device 

to a visit with Dr. Hannan. The records prior to the 

recorded visit show that Dr. Hannan increased the 

patient’s dosage of Oxycodone even though the patient 

advised of a “2” on a pain scale of 0 to 10. The recording 

shows that the patient told Dr. Hannan that he sold half 

of his prescribed drugs to support his family, and later 

told appellant he intended to sell half of the drugs. Dr. 

Hannan advised the patient that such activity was a 

criminal offense, whereupon the patient told Dr. Hannan 

he intended to continue selling the drugs. Nevertheless 

Dr. Hannan prescribed 150 tabs of Oxycodone 30mg and 

60 tabs of Methadone 10mg “to prevent withdraw.”

The Hearing Officer observed that:

The evidence in this case establishes that Dr. Hannan 

was enabling a criminal drug gang in Pennsylvania by 
6

providing them with a regular source of controlled 

substance prescriptions to be sold on the street.

 

The Board had a similar view of the evidence, concluding:

Dr. Hannan’s practices show a clear priority on 

money-making at the expense of appropriate patient 

care. There is a real concern for public safety.

B. The court will not agree to the stipulated stay

The State and the appellant have stipulated that this court 

stay the Board’s decision pending the outcome of this appeal. It is 

manifest from the papers that the sole purpose of the stay is to 

prevent (for the time being at least) Florida medical authorities from 

learning the Delaware Board’s revocation of Dr. Hannan’s license. 

Dr. Hannan is now treating patients for pain management in 

Florida, which apparently includes prescription of narcotic pain 

medications. The purpose of the motion is to prevent (for the time 

being at least) Florida authorities from learning that his license has 

been revoked in Delaware. According to his motion:

Appellant continues to practice in the area of pain 

management medicine in Tampa, Florida. Without a 

stay, and without being afforded his constitutional due 

process rights, the discipline will be made public and 

placed on the National Practitioner Database. * * * 

Appellant’s patients, for the most part, suffer from 

chronic and life-altering pain and rely upon his 

practice for obtaining relief from that pain through, in 
7

many instances, the prescription of prescription 

medicine that contains narcotics.

Despite the fact that the Board (at the State’s urging) found that Dr. 

Hannan poses a threat to the community, the State has agreed

stipulated stay which would effectively allow Dr. Hannan to 

continue prescribing narcotic pain killers to patients in Florida.1

As the parties recognize,2 the court is not bound by their

stipulation. The Administrative Procedures Act prohibits this court 

from issuing a stay unless it finds, among other things, that the 

appellant has a substantial chance of success on the merits. The 

Administrative Procedures Act provides:

When an action is brought in the Court for review of 

an agency regulation or decision, enforcement of such 

regulation or decision by the agency may be stayed by 

the Court only if it finds, upon a preliminary 

hearing, that the issues and facts presented for 

review are substantial and the stay is required to 

prevent irreparable harm.3

 

1 The stipulation would prevent Dr. Hannan from practicing medicine in 

Delaware during the pendency of this appeal, which seems to be somewhat of a 

Pyrrhic victory for the State of Delaware since he no longer resides here but 

rather lives in Florida.

2 In a cover letter transmitting the stipulation to the court, the Deputy 

Attorney General representing the Board wrote that the parties have agreed 

“subject to the approval of the court, to a Stipulated Order.”

3 29 Del. C. § 10144 (emphasis added).
8

As discussed below, the court finds appellant has little, if any, 

chance of success on the merits. Put another way, he has not 

presented issues and facts that are substantial.

Moreover, there are policy considerations which weigh heavily 

against granting the stay in this case. This court is reluctant to be a 

party to what is essentially a contrivance (albeit a lawful one) to 

prevent the Florida authorities from promptly learning of the 

Delaware Board’s disciplinary action. Florida, like all states, relies 

in part upon information supplied by the National Practitioner Data 

Bank,

4 and a stay would delay transmission of the Delaware 

Board’s revocation to the Data Center which in turn would delay 

the Florida authorities from learning of that revocation. This court 

will not enter a stay for the sole purpose of preventing the Florida 

Department of Health from learning information which may (or may 

not be) relevant to the health and safety of the people of that state. 

 

4 See Fla. Stat. Ann. § 456041(1)(b)(“The physician profiles shall reflect the 

disciplinary action and medical malpractice claims as reported by the National 

Practitioner Data Bank, and shall include information relating to liability and 

disciplinary actions obtained as a result of a search of the National Practitioner 

Data Bank.”).
9

C. Dr. Hannan’s contentions in his motion for a stay

The following contentions can be gleaned from Dr. Hannan’s 

motion:

1. The Hearing Officer erred when he denied the 

doctor’s request for a continuance.

2. The Hearing Officer erred when the State’s expert 

was permitted to testify by telephone.

3. The Hearing Officer erred when he permitted the 

State to call its witnesses in a “piecemeal fashion, 

out of order.”

4. The Hearing Officer erred when he allowed the 

State’s expert to offer an opinion “based on a review 

of records, but had no personal knowledge of the 

underlying facts.”

5. It was constitutional error to permit the State’s 

witnesses to offer hearsay testimony.

6. The State’s decision to use hearsay testimony and 

not call the eight patients involved deprived the 

Hearing Officer of the opportunity to assess the 

patient’s credibility.
10

7. The Hearing Officer erroneously excluded testimony 

by Dr. Hannan about an electronic record system 

reflecting prescriptions for one of the eight patients 

because the State had not seen the system.

8. The State called a witness whose only testimony 

was that Dr. Hannan’s medical assistant was 

“tattooed” and appeared to be a security guard.

9. The Hearing Officer based his decision in part on 

evidence that Dr. Hannan was arrested in Delaware 

for carrying a concealed firearm in his briefcase

 Virtually all of Dr. Hannan’s arguments must be quickly 

dismissed because of the limited scope of this court’s review in 

administrative proceedings. In administrative appeals this court’s 

review is limited to a determination whether the “decision is 

supported by substantial evidence and is free from legal error.”5

This court has recently described the scope of its review of decisions 

of the Board of Medical Practice and Licensure:

The Superior Court has jurisdiction to review a 

decision of the Board on appeal pursuant to the 

Delaware Administrative Procedures Act. The duty of 

 

5 Haggerty v. Board of Pension Trustees, 2018 WL 454501, at *4 (Del. Jan. 18, 

2018).
11

the reviewing Court is to examine the record of the 

proceedings below to determine if (1) there is 

substantial evidence to support the Board’s findings 

and conclusions and (2) the Board’s decision is free 

from legal error. In making its assessment, the Court 

is not authorized to make its own factual findings, 

assess credibility of witnesses or weigh the evidence. 

Substantial evidence is greater than a scintilla and 

less than a preponderance. If the Board’s findings and 

conclusions are found to be based upon substantial 

evidence and there is no error of law, the Board’s 

decision must be affirmed.6

The narrow scope of review is intended to prevent reviewing courts 

from getting into the weeds of discretionary and evidentiary rulings 

by the administrative tribunal. Yet that is exactly what Appellant is 

asking this court to do.

Dr. Hannan casts his arguments in due process terms. He 

fails to explain, however, why alleged errors by the Hearing Officer

have (either singly or collectively) deprived him of due process. For 

example, the court is at a loss to understand how testimony that a 

medical assistant was “tattooed and appeared to be a security 

guard” deprived him of a constitutional right. 

Moreover, many of the alleged deprivations of due process 

have been specifically rejected as such or are in fact routine 

practice in this court and elsewhere. For example:

 

6 Sokoloff v. Board of Medical Practice, 2010 WL 5550692, at *5 (Del Super.

Aug. 25, 2010) (emphasis in original).
12

 Dr. Hannan claims that he was deprived of his right to 

due process because the Hearing Officer allowed hearsay 

testimony. It has long been the law, however, that the 

use of hearsay in administrative proceedings in and of 

itself does not offend the Due Process Clause.7

According to the Delaware Supreme Court “The Due 

Process clause has never been read to mean that the 

admission of hearsay evidence in an administrative type 

proceeding is a violation of that clause, and we decline to 

accept that reading today.”8 

 It is true that hearsay cannot form the sole basis for an 

administrative decision,9 but that is not the case here. 

Dr. Hannan argues that “not one witness called by the 

State had any knowledge of the facts to which they were 

testifying.” This does not equate to an administrative 

decision based solely on hearsay—the Hearing Officer’s 

 

7 See Qijano v. Ascroft, 2004 WL 2823312, at *1 (9th Cir. Dec. 9, 2004); see 

also, Williams v. United States Dept. of Transportation, 781 F.2d 1573, 1578 n.7 

(11th Cir. 1986); Burgin v. Berryhill, 2017 WL 4249729, at *5 (W.D. Okla. Sept. 

1, 2017).

8 In re Kennedy, 472 A.2d 1317, 1329 (Del. 1984).

9 Crooks v. Draper Canning Co., 1993 WL 370851, at *1 (Del. Sept. 7, 1993).
13

Recommendation is chock-full of references to Dr. 

Hannan’s records and his own testimony.

 Dr. Hannan complains that the State’s expert “offered 

opinion testimony based on his review of the records, 

but had no personal knowledge of any of the underlying 

facts.” It is again difficult to see how this amounts to a 

constitutional violation, as this sort of thing happens 

every day in courts around the nation, including 

Delaware’s. Both the Delaware10 and Federal11 Rules of 

Evidence permit an expert to base his or her opinion 

upon facts made known to the expert.

 Dr. Hannan complains that the State’s expert was 

permitted to testify by telephone. However, transcripts 

of witness depositions are routinely read into the record 

in lieu of the witness’s live testimony. The civil rules of 

this court provide that “any part or all of a deposition, so 

far as admissible under the rules of evidence applied 

 

10 D.R.E. 703 (“The facts or data in the particular case upon which an expert 

bases an opinion or inference may be those perceived by or made known to him 

at or before the hearing.”).

11 F.R.E. 703 (“An expert may base an opinion on facts or data in the case 

that the expert has been made aware of or personally observed.”).
14

[may be read] as though the witness were then present 

and testifying.”12

 Appellant argues the Hearing Officer erred by permitting 

the State’s witness to testify in piecemeal fashion and 

out of order. But trial courts have discretion over “the 

mode and order of interrogating witnesses and 

presenting evidence.”13 The same is surely true of the 

Hearing Officer.

Appellant also argues that the Hearing Officer erred when he 

denied Appellant’s motion for a continuance of the hearing. The 

standard of review here is whether the Officer acted capriciously. 

The Delaware Supreme Court put it this way: “a discretionary ruling 

by a trial court or administrative body on a motion for a 

continuance will not be set aside unless that decision is 

unreasonable or capricious.”14 The record amply shows that the 

Hearing Officer did not act unreasonably or capriciously. 

Dr. Hannan (who was proceeding without counsel at the time) 

waited until the eve of the hearing to request a continuance. The 

 

12 Super. Ct. Civ. R. 32(a).

13 D.R.E. 611(a).

14 In re Kennedy, 472 A.2d at 1331.
15

hearing was set to begin on Monday, July 24, 2017. On the evening 

Thursday, July 20, after the close of business, Dr. Hannan 

requested the continuance for the first time by way of an email to 

the investigator in his case.15 In that email Dr. Hannan asserted 

that:

 Because of financial difficulties he was unable to 

afford counsel for the hearing (Dr. Hannan had 

been represented earlier in this matter by an 

attorney).

 He could not afford to fly back to Delaware to attend 

the hearing.

 He works full time to pay his bills and spouse and 

child support obligations. Even a small diminution 

in his income would make it difficult for him to keep 

up with those obligations.

 He was unaware of the identity of the patients 

whose care gave rise to the charges.

 

15 The record shows that Dr. Hannan was aware of the email address of the 

Deputy Attorney General representing the Board in this case because the 

deputy had previously communicated with him by email.
16

 He requested discovery in the form of the records of 

those patients.

 He needed a “significant amount of time” to review 

those records once he gets them.

The State responded to Dr. Hannan’s request the morning of Friday, 

July 20. In that response the State asserted:

 Dr. Hannan must have known of the patients’

identities because his records for those patients 

were subpoenaed from him in the fall of 2015. He 

was interviewed about each of those patients in 

October, 2015.

 Dr. Hannan received formal notice of the State’s 

complaint on November 18, 2016.

 Although Dr. Hannan had made no document 

requests and the State had no obligation to provide 

him documents, the State sent all of its exhibits to 

him in early June, 2017.

 The Deputy Attorney General representing the 

Board spoke with Dr. Hannan by telephone in June 

2017, at which time the doctor expressed surprise 
17

this had not all gone away. He confirmed to the 

Deputy that he was available for the scheduled 

hearing and made no request for a delay.

The Hearing Officer did not give Dr. Hannan’s request short shrift. 

He consulted with the parties the morning after Dr. Hannan sent 

his email request for a continuance to the investigator and wrote an 

explanation why he was denying the requested continuance. 

Appellant’s delay in requesting the delay alone renders the Hearing 

Officer’s decision to deny the request reasonable and noncapricious. 

Because Dr. Hannan has little or no chance for success on the 

merits of his appeal, his application for a stay is DENIED.

February 23, 2018 ______________________________

 John A. Parkins, Jr.

Superior Court Judge

oc: Prothonotary

cc: Daniel A. Griffith, Esquire; Kaan Ekiner, Esquire, Whiteford 

Taylor Preston LLC, Wilmington, Delaware

Stacey X. Stewart, DAG, Department of Justice, Wilmington, 

Delaware