Opinion
C.A. No. 03A-09-007 WLW.
Submitted: May 21, 2004.
Decided: May 27, 2004.
Upon Respondent-Below Appellant's Motion for Stay Pending Appeal to the Supreme Court. Granted.
Victor F. Battaglia, Esquire of Biggs Battaglia, Wilmington, Delaware, attorneys for Appellant.
Gregory E. Smith, Esquire, Department of Justice, Wilmington, Delaware, attorneys for Appellee.
ORDER
Introduction
Before this Court is Gregory Villabona's motion for stay pending appeal to the Supreme Court. The State opposes the motion. Because Dr. Villabona's appeal raises novel issues before the Supreme Court and, after evaluating all of the Kirpat factors, it appears to this Court that there does appear to be a risk of irreparable harm to Dr. Villabona, the motion for a stay of this Court's decision is granted.
See Kirpat, Inc. v. Delaware Alcoholic Beverage Control Commission, 741 A.2d 356,357-358 (Del. 1998).
Background
On September 22, 2003, the Board of Medical Practice ("the Board") issued a final order finding that Dr. Villabona had committed unprofessional conduct. In its order, the Board placed restrictions on Dr. Villabona's license to practice medicine in an effort to protect his patients. Dr. Villabona filed a timely appeal of the decision to this Court and moved for the issuance of a stay. On September 24, 2003, this Court issued a Stay of the Board's decision concluding that there were substantial issues for the Court to decide and that there was a risk of irreparable harm to Dr. Villabona and his patients if the stay was not issued.On April 24, 2004, this Court affirmed the decision of the Board. Dr. Villabona filed his Appeal of the decision on May 10, 2004. Dr. Villabona now moves, pursuant to Supreme Court Rule 32, for a stay of this Court's order.
Villabona v. Board of Medical Practice, 2004 Del. Super. LEXIS 148.
Discussion
Supreme Court Rule 32 provides that a motion for stay must be filed in the trial court in the first instance. The trial court must rule on the initial motion, which may be granted or denied in the court's discretion. In determining whether to grant a motion for a stay, the court must consider the four part test set forth in Evans v. Buchanan, which requires the Court to: (1) make a preliminary assessment of likelihood of success on the merits of the appeal; (2) assess whether the petitioner will suffer irreparable injury if the stay is not granted; (3) assess whether any other interested party will suffer substantial harm if the stay is granted; and (4) determine whether the public interest will be harmed if the stay is granted. In Kirpat, the Supreme Court stated that the "reasonable approach to this issue is to balance all of the equities involved in the case together."
435 F. Supp. 832, 841-842 (D. Del. 1977) (see also Kirpat, 741 A.2d at 357-358).
Kirpat, 741 A.2d at 358.
The first factor to be considered is the likelihood of success on the merits of the appeal. The Supreme Court has cautioned that this factor should not be construed literally, because to do so would require the Superior Court "first to confess error in its ruling before it could issue a stay." As the Court in Kirpat stated,
Id. at 358 (citing Evans, 435 F. Supp. at 843-44).
If the other three factors [other than the likelihood of success factor] strongly favor interim relief, then a court may exercise its discretion to reach an equitable resolution by granting a stay if the petitioner has presented a serious legal question that raises a `fair ground for litigation and thus for more deliberative investigation.'
Id. at 358 (citing Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977)).
Dr. Villabona has not cited any authority indicating that this Court's decision would be reversed by the Supreme Court. He only states that the Delaware Supreme Court has not yet addressed the effect of a doctor entering a guilty plea in a probation without conviction proceeding in Maryland The State argues that Dr. Villabona's failure to cite legal authority that would contradict this Court's decision indicates that he is unlikely to be successful on appeal. However, as it is difficult for the Court to assess Dr. Villabona's likelihood of success on appeal, this factor must be considered in connection with the other three elements.
The next factor to consider is whether Dr. Villabona will suffer irreparable injury if the stay is not granted. Dr. Villabona contends that if the stay is not granted he will be unable to continue in his practice as a psychiatrist. Although the Board did not revoke or suspend his license, Dr. Villabona asserts that the restrictions would prevent him from treating patients because health care insurance and liability insurance carriers would take action against him, essentially shutting down his practice. Further, Dr. Villabona contends that his patients would be harmed by such action, because he has developed a professional psychiatrist-patient relationship with them.
The State however argues that the harm Dr. Villabona is concerned about would have already taken place, because the stay was lifted when this Court issued its decision on April 28, 2004. Thus, the disciplinary action has already been reported to the national database.
In granting the stay in September 2003, this Court concluded that irreparable injury would result to Dr. Villabona and his patients if the stay was not issued, because Dr. Villabona would lose his livelihood and the patients would lose their psychiatrist, if his claims were correct. This remains the case today. In oral argument on the motion, counsel for Dr. Villabona stated that even though the action was already reported to the national database, if the Court were to issue the stay the insurance companies would continue to provide coverage for his services. Therefore, because there is a risk of irreparable harm to Dr. Villabona and his patients, this factor weighs in favor of granting the stay.
Next the Court must determine whether other interested parties would be harmed if the stay is granted. Clearly the Board would not suffer harm if the stay is granted, however, the State argues that Dr. Villabona's nieces, the victims of his abuse, would be harmed. The State asserts that each time Dr. Villabona delays his sanction, his victims' emotional wounds are reopened. However, it is not clear to the Court how the granting of the stay would result in irreparable harm to Dr. Villabona's nieces. In addition, because the nieces are not parties to this action, it is not clear to the Court that they are interested parties. Therefore, as the Court does not believe that the Board or Dr. Villabona's nieces would be irreparably harmed if the stay is granted, this factor weighs in favor of granting the stay.
Finally, the Court must assess whether the general public will be harmed if the stay is issued. If Dr. Villabona continued practicing medicine without having to inform patients of his guilty plea, his patients could suffer. This would be particularly relevant if he is treating patients who are past victims of sexual abuse. However, many of Dr. Villabona's patients have been informed of his guilty plea, but have continued to treat with him. Even the Board of Medical Practice found that it was unlikely that Dr. Villabona would harm his patients if he continued treating them. In addition, Dr. Villabona's probation in Maryland does not permit him to treat minors without adult supervision. Finally, there has been no report of Dr. Villabona violating any of the terms of his probation imposed in Maryland Therefore, because there does not appear to be a substantial risk to the public, this factor weighs in favor of granting the stay.
After balancing the factors and examining the novel issue before the Supreme Court, this Court will exercise its discretion and grant Dr. Villabona's motion for a stay.
IT IS SO ORDERED.