IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 2, 2020

VALERIE LOUISE AUGUSTUS, M.D. v. TENNESSEE DEPARTMENT OF 

HEALTH, ET AL.

Appeal from the Chancery Court for Davidson County

No. 18-708-III Ellen Hobbs Lyle, Chancellor

___________________________________

No. M2019-01502-COA-R3-CV

___________________________________

Appellant, a psychiatrist, was sanctioned by the Board of Medical Examiners for 

violation of the Tennessee Medical Practice Act. The Chancery Court for Davidson 

County affirmed the Board’s action, and Appellant appeals. Discerning no error, we 

affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., joined. RICHARD H. DINKINS, J., not participating.

Valerie Louise Augustus, M.D., Germantown, Tennessee, Pro Se. 

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein, 

Solicitor General; and Sue A. Sheldon, Senior Assistant Attorney General, for the 

Tennessee Department of Health.

MEMORANDUM OPINION1

 

1 Rule 10 of the Rules of the Court of Appeals states:

This Court, with the concurrence of all judges participating in the case, may affirm, 

reverse or modify the actions of the trial court by memorandum opinion when a formal 

opinion would have no precedential value. When a case is decided by memorandum 

opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and 

shall not be cited or relied on for any reason in any unrelated case.

09/18/2020
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Appellant Valerie Louise Augustus is a psychiatrist licensed by the State of 

Tennessee. On June 22, 2016, the Division of Health Related Boards of the Tennessee 

Department of Health (“Department”) filed a “Notice of Charges and Memorandum of 

Assessment of Civil Penalty and Costs” against Appellant. The Notice of Charges cited 

Dr. Augustus for the following violations of the Tennessee Medical Practice Act: (1) 

“unprofessional, dishonorable or unethical conduct,” Tenn. Code Ann. §63-6-214(b)(1); 

and (2) “[g]ross health care liability or a pattern of continued or repeated health care 

liability, ignorance, negligence or incompetence in the course of medical practice,” Tenn. 

Code Ann. §63-6-214(b)(4). As set out in the notice, the specific allegations against Dr. 

Augustus were that she: (1) “struck [a patient, P.T.,] on the buttocks with a riding crop” 

during a patient’s session in July 2015; (2) “has struck other mental health patients with a 

riding crop;” and (3) “has had both a riding crop and a whip displayed in her office.” The 

Department filed an amended Notice of Charges on August 25, 2017 and a second 

amended Notice of Charges on November 22, 2017. In her response to the Notice of 

Charges, Dr. Augustus did not deny the use of a riding crop in her practice but averred 

that she “did not strike the patient with the intent to cause harm or pain.” Rather, Dr. 

Augustus explained that the “riding crop was used in a humorous exchange intended to 

foster the physician/patient relationship.” 

On January 22, 24, March 19, 21, and April 23, 2018, the Board of Medical 

Examiners (“Board”) heard the contested case. Patient, P.T., whose complaint that Dr. 

Augustus struck her with a riding crop during her July 2015 visit gave rise to the 

investigation, testified that she had been Dr. Augustus’ patient for five months. Although 

P.T. acknowledge that she had noticed the riding crop and whip in Dr. Augustus’ office, 

she explained that it “never dawned on [her] that . . . it would be used [to strike 

patients].” P.T. further testified that during the July 2015 visit, she was very depressed, 

“very withdrawn,” and that “[e]very time [she] spoke, it was through tears; that she was 

feeling very vulnerable and had no purpose for living.” During the therapy session, P.T. 

informed Dr. Augustus that she had not followed Dr. Augustus’ previous instruction to 

journal. P.T. testified that because she failed to follow Dr. Augustus’ instruction, Dr. 

Augustus struck her on the buttocks with the riding crop as she was exiting the office. 

P.T. stated that, “I wouldn’t say that it was dramatic force, but it was enough force that I 

kn[e]w she hit me and that it stung, and it left a bruise.”

Shirley Pickering, an investigator for the State of Tennessee health-related boards, 

also testified. Ms. Pickering interviewed Dr. Augustus on November 23, 2015 in Dr. 

Augustus’ office. Ms. Pickering stated that she noticed a riding crop hanging on a coat 

rack and a “riding crop-whip-type instrument” behind Dr. Augustus’ desk. When Ms. 

Pickering inquired whether Dr. Augustus had struck the patient, P.T., with a riding crop, 

Ms. Pickering testified that Dr. Augustus answered, “Yes,” explaining that “she had 

popped her on the bottom with the riding crop.”
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The Department called James G. Kyser, M.D., a psychiatrist, as an expert witness. 

In relevant part, Dr. Kyser testified that, in the field of psychiatry, “punishment had not 

been shown to be a strong predictor of learning.” Dr. Kyser further stated that he was not 

aware of the “us[e] of objects to make contact with the buttocks of patients [being] 

recognized in any scientific or professional way in the psychiatric community.” Dr. 

Kyser testified that Dr. Augustus’ notes from P.T.’s July 20th session, which he had 

reviewed in preparation for his testimony, did not mention the use of a riding crop. 

Nonetheless, Dr. Kyser opined that striking a patient with a riding crop constituted “a 

boundary violation,” and that it was “inconceivable [for him] to [conceive of] a 

circumstance where [a physician treating] a patient that has a documented history of 

physical and sexual abuse, [would] strike[] them with anything in a therapeutic setting.” 

Dr. Kyser ultimately concluded that a psychiatrist’s use of a riding crop, whip, or any 

other object to strike a patient constituted a violation of the standard of care.

During her testimony, Dr. Augustus admitted that she used the riding crop to “tap” 

and “make contact with [P.T.’s] buttocks.” She testified that she had also used the crop 

on other patients as part of a humorous exchange when those patients failed to follow her

recommendations and instructions. Dr. Augustus explained that 

those patients that thought it was funny . . . would actually say, “Well, Dr. 

Augustus, I’m going to set myself a goal, and I will let you hold me

accountable, and if I don’t reach my goal, . . . I’ll pretend that I’m in trouble 

with you,” and that’s—when they would come back . . . as I talk[ed] to 

them and went through their visit, I ask[ed] them, “Oh, did you remember 

to exercise at the level that you stated?” If they said, No they didn’t, [t]hen I 

would pick up the crop and just lightly tap them with it, and we both 

laughed, and that usually was the interaction.

However, Dr. Augustus denied using enough force with the crop to hurt the patient and 

further opined that none of her patients thought her use of the crop was anything other 

than humorous.

C.M., another of Dr. Augustus’ patients on whom she used the crop, testified that 

Dr. Augustus “could be serious . . . but then she was funny as well.” C.M. described Dr. 

Augustus as “very supportive and encouraging.” Concerning the use of the crop, C.M. 

explained that Dr. Augustus had recommended that she exercise and lose weight to help 

with her depression. C.M. stated that Dr. Augustus had “tap[ped]” her on the buttocks 

with the riding crop on at least three occasions; however, C.M. considered “the stick” to 

be “a joke,” “all in humor and fun.” She explained that Dr. Augustus use of the crop was 

never painful and that she “could barely feel it.” C.M. described the practice as “more of 

a symbolic thing.”
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Dr. Augustus called William C. Wolters, J.D., M.D., as her expert in psychiatry. 

Dr. Wolters opined that Dr. Augustus’ use of the riding crop may have crossed a 

boundary, but it was not a deviation from the standard of care. He opined that, “Humor is 

important, and I think, I can understand you don’t want someone to leave on kind of a 

down note. You want to kind of put things in perspective and bring some humor in and 

some . . . encouragement.”

Following the hearing, the Board made several findings of fact, including that:

2. . . . During the July 20, 2015, appointment, the Respondent made

contact with P.T. on the buttocks with a riding crop.

3. Respondent has made contact with other mental health patients 

with a riding crop, whip, or other object.

4. Respondent has had both a riding crop and a whip displayed in her 

office. Additionally, the Respondent compared her patients to mules.

5. There’s no evidence in psychiatric literature to support the use of 

touching a patient with an implement as part of treatment; this is supported 

by the A.P.A.’s commentary on ethics and practice.

Based on the foregoing findings, in its order of May 2, 2018, the Board concluded that 

Dr. Augustus’ use of a riding crop or other object on her patients constituted: (1) 

unprofessional and unethical conduct in violation of Tennessee Code Annotated section 

63-5-214(b)(1); (2) ignorance, negligence or incompetence in violation of section 63-6-

214(b)(4); and (3) a violation of the standard of care in violation of section 63-6-

214(b)(4). The Board suspended Dr. Augustus’ medical license for at least 60 days and 

ordered her to submit to an assessment of her ability to safely practice psychiatry and to 

attend a two-day course in medical ethics, boundaries, and professionalism. The Board 

also placed Dr. Augustus on probation and imposed a penalty of $10,000 plus the costs of 

the administrative proceedings, up to maximum of $50,000. 

Dr. Augustus petitioned the Board for reconsideration, but her petition was denied. 

Thereafter, she sought judicial review in the Chancery Court of Davidson County (“trial 

court”). As support for her petition, Dr. Augustus alleged that she was denied due 

process because the Notice of Charges was constitutionally deficient in that it failed to 

provide adequate notice of the issues to be tried. Specifically, Dr. Augustus argued that 

the Notice of Charges alleged that she “struck” her patients, while the Board found that 

she “made contact” with them. Dr. Augustus maintained that the distinction between 

“struck” and “made contact” was “significant because those two phrases describe very 

different types of conduct.” Following its review of the Board’s decision, the trial court 

upheld the Board’s decision by order of July 18, 2019. Dr. Augustus appeals. 

The scope and standard of judicial review in this appeal is governed by the

Uniform Administrative Procedures Act, specifically Tennessee Code Annotated sections
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4-5-322(h)-(i), which provide:

(h) The court may affirm the decision of the agency or remand the case for 

further proceedings. The court may reverse or modify the decision if the 

rights of the petitioner have been prejudiced because the administrative 

findings, inferences, conclusions or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by abuse of discretion or clearly 

unwarranted exercise of discretion; or

(5)(A) Unsupported by evidence that is both substantial and material in the 

light of the entire record.

(B) In determining the substantiality of evidence, the court shall take into 

account whatever in the record fairly detracts from its weight, but the court 

shall not substitute its judgment for that of the agency as to the weight of 

the evidence on questions of fact.

(i) No agency decision pursuant to a hearing in a contested case shall be 

reversed, remanded or modified by the reviewing court unless for errors 

that affect the merits of such decision.

Tenn. Code Ann. § 4-5-322(h)-(i). Under the statutory scheme, “[c]ourts do not review 

the fact issues de novo and, therefore, do not substitute their judgment for that of the 

agency as to the weight of the evidence, even when the evidence could support a different 

result.” Wayne County v. Tennessee Solid Waste Disposal Control Bd., 756 S.W.2d 274, 

279 (Tenn. Ct. App. 1988) (internal citation omitted) (citing Humana of Tennessee v. 

Tennessee Health Facilities Comm’n, 551 S.W.2d 664, 667 (Tenn. 1977); Grubb v. 

Tennessee Civil Serv. Comm’n, 731 S.W.2d 919, 922 (Tenn. Ct. App. 1987); Hughes v. 

Board of Comm’rs, 319 S.W.2d 481, 484 (1958)).

Furthermore, we are cognizant of the fact that Dr. Augustus is proceeding pro se

in this appeal. Courts should take into account that many pro se litigants have no legal 

training and little familiarity with the judicial system. Garrard v. Tenn. Dep’t of Corr., 

No. M2013-01525-COA-R3-CV, 2014 WL 1887298, at *3 (Tenn. Ct. App. May 8, 2014)

(internal citations omitted). Therefore, the courts give pro se litigants, who are untrained 

in the law, a certain amount of leeway in drafting their pleadings and briefs. Paehler v. 

Union Planters Nat'l Bank, Inc., 971 S.W.2d 393, 397 (Tenn. Ct. App. 1997). “Pro se 

litigants who invoke the complex and technical procedures of the courts assume a very 

heavy burden.” Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1989). 

While a party who chooses to represent himself or herself is entitled to the fair and equal 

treatment of the courts, Hodges v. Tenn. Att'y Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App. 

2000), “[p]ro se litigants are not . . . entitled to shift the burden of litigating their case to 

the courts.” Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000). 
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Instead, pro se litigants are held to the same procedural and substantive standards to 

which lawyers must adhere. Diggs v. Lasalle Nat. Bank Assoc., et al., 387 S.W. 3d 559, 

563 (Tenn. Ct. App. 2012); Brown v. Christian Bros. University, No. W2012-01336-

COA-R3-CV, 2013 WL 3982137, at *3 (Tenn. Ct. App. Aug. 5, 2013), perm. app. denied

(Tenn. Jan. 15, 2014).

With the foregoing in mind, we first address the fact that Dr. Augustus’ appellant 

brief is not compliant with Rule 27 of the Tennessee Rules of Appellate Procedure, which 

states that an appellant’s brief shall contain:

(1) A table of contents, with references to the pages in the brief;

(2) A table of authorities, including cases (alphabetically arranged), statutes 

and other authorities cited, with references to the pages in the brief where 

they are cited;

(3) A jurisdictional statement in cases appealed to the Supreme Court 

directly from the trial court indicating briefly the jurisdictional grounds for 

the appeal to the Supreme Court;

(4) A statement of the issues presented for review;

***

(7) An argument, which may be preceded by a summary of argument, 

setting forth: (A) the contentions of the appellant with respect to the issues 

presented, and the reasons therefor, including the reasons why the 

contentions require appellate relief, with citations to the authorities and 

appropriate references to the record (which may be quoted verbatim) relied 

on; and (B) for each issue, a concise statement of the applicable standard of 

review (which may appear in the discussion of the issue or under a separate 

heading placed before the discussion of the issues);

Tenn. R. App. P. 27(a). Here, Dr. Augustus’ brief fails to comply with the foregoing 

requirements. Most glaringly, the brief does not articulate a cogent argument with 

citations to the record or controlling authority, and it does not set out the issues presented 

for review. Rather, Dr. Augustus uses her brief “to provide additional evidence 

supporting the brief . . . seeking Judicial Review [that] was filed in Chancery Court . . .” 

To this end, the brief makes several unsupported references to events that occurred after 

the entry of the Board’s order and are, therefore, not pertinent to our review of the 

Board’s decision. 

Despite the shortcomings in her opening brief, it is clear that Dr. Augustus’ 

argument for reversal of the Board’s decision centers on her belief that the Board 

impermissibly “change[d] the language of the charge after the State failed to prove [its]

case.” In her reply brief, she summarizes her main contention on appeal as follows:
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What I have contested during this process is the accusation that I “struck” 

PT and other unnamed patients. The written allegation of PT uses the word 

“struck” and claims that she was bruised as a result of my contact with her. 

It is clear that PT’s complaint was of contact of sufficient force to cause 

such an injury. The expression “made contact with” does not describe what 

is alleged by PT.

From these statements, it is clear that Dr. Augustus argues that the Notice of Charges was 

insufficient to inform her of the specific charges against her. Furthermore, Dr. Augustus 

brief states that “the panel indicat[ed] during deliberations that the evidence did not 

support the charge,” and she “seek[s] a full review of the original matter brought by the 

Department of Health.” We perceive this statement as an argument that the Board’s 

decision was “[u]nsupported by evidence that is both substantial and material in the light 

of the entire record” Tenn. Code Ann. §4-5-322(h)(5). Because we are able to glean the 

gravamen of Dr. Augustus’ arguments from her brief, and because our review is limited 

to the record of the Board’s proceedings, which are included in our record, we exercise 

our discretion to proceed with substantive review. We state the issues as follows:

1. Whether Dr. Augustus received adequate notice of the charges against her.

2. Whether the Board’s decision is supported by substantial and material evidence.

Turning to the question of whether Dr. Augustus received adequate notice of the 

charges against her, in the chancery court, Dr. Augustus asserted that the Board’s 

decision should be reversed

because the Board concluded that Dr. Augustus violated the Tennessee 

Medical Practice Act and imposed sanctions on Dr. Augustus based on 

findings of fact that were not included in the Notice of Charges, specifically 

a finding that Dr. Augustus merely “made contact” with rather than 

“struck” the patients, as was alleged

The gravamen of Dr. Augustus’ argument is that the difference in word choice between 

the words “struck” and “contact” is legally significant to an extent that she was 

prejudiced by not having received notice before the contested case hearing that merely 

“making contact” with patients could constitute a violation of the Tennessee Medical 

Practice Act and subject her to sanctions. These assertions were rejected by the chancery 

court in its final order, to-wit:

[T]he Petitioner’s due process rights were not violated. The record and law 

establish that the Notice of Charges, in conjunction with the Petitioner’s 
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actual knowledge of the Department’s legal theory of the case prior to the

contested case hearing obtained through discovery and pretrial proceedings, 

provided the Petitioner with sufficient notice as required by Tennessee law.

***

[T]he Petitioner in this case cannot credibly argue that she did not know the

event(s)/conduct that was[/were] subject to discipline in this case and that 

she did not know the Department’s legal theory was not limited to any 

specific degree of force in the Petitioner’s use of the riding crop and/or 

whip.

The Uniform Administrative Procedures Act sets forth the various procedures for 

hearing and determining contested cases at the agency level and on appeal. As is relevant 

to this appeal, in any contested case, the parties are entitled to “reasonable notice,” which 

must include “[a] statement of the . . . nature of the hearing, . . . [and a] statement of the 

legal authority and jurisdiction under which the hearing is to be held.” Tenn. Code Ann. 

§§ 4-5-307(a), (b)(1)-(2). Relevant to Dr. Augustus’ case, Tennessee Code Annotated 

section 4-5-307(b)(3) requires that the notice include “a short and plain statement of the 

matters asserted.” Furthermore, because the Notice of Charges in this case involved Dr. 

Augustus’ medical license, Tennessee Code Annotated section 4-5-320(c) also applies:

(c) No revocation, suspension, or withdrawal of any license is lawful

unless, prior to the institution of agency proceedings, the agency gave

notice by mail to the licensee of facts or conduct that warrant the intended

action, and the licensee was given an opportunity to show compliance with

all lawful requirements for the retention of the license. If the agency finds

that public health, safety, or welfare imperatively requires emergency

action, and incorporates a finding to that effect in its order, summary

suspension of a license may be ordered pending proceedings for revocation

or other action. These proceedings shall be promptly instituted and

determined.

Tenn. Code Ann. § 4-5-320(c). These requirements are consistent with “basic due 

process,” which requires “notice reasonably calculated under all the circumstances, to 

apprise interested parties” of the claims of the opposing parties. McClellan v. Bd. of 

Regents, 921 S.W.2d 684, 688 (Tenn. 1996) (quoting Mullane v. Central Hanover Trust 

Co., 339 U.S. 306, 314 (1950)). The purpose of due process requirements is to notify the 

individual in advance in order to allow adequate preparation and reduce surprise. Id.

(citing Memphis Light, Gas, and Water Div. v. Craft, 436 U.S. 1, 14 (1978)).

Turning to the administrative record, prior to the contested case hearing, Dr. Augustus 

was in receipt of Dr. Kyser’s expert disclosure, wherein he opined that any patient 
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contact with a riding crop, regardless of the characterization of that contact, constituted a 

deviation from the standard of care by Dr. Augustus. Dr. Kyser’s disclosure states, in 

relevant part:

Allegations have been made regarding inappropriate behavior in the 

workplace. Dr. Augustus allegedly has engaged in physically striking or 

“tapping” her patients in the reported context of clinical motivation and 

behavior modification. Specifically, these behaviors have included the use 

of a “riding crop,” which she has admittedly used at the end of therapeutic 

sessions. Such behaviors are highly unusual and are not seen as fitting in 

the context of any recognized appropriate psychiatric treatment modality. 

Dr. Augustus has described these physical behaviors as, “a treatment 

modality,” which includes physical contact with the patient’s buttocks. At 

other times, she has described the behavior as humoring the patient, “a 

joke.”

In its final order, the trial court noted that

the Petitioner prepared a defense strategy to the charges in this case which 

chose to focus on the Petitioner’s lack of intent, degree of physical harm 

inflicted and the purported “humorous” context of the contact. This

defense strategy was employed even though the Petitioner had knowledge 

prior to the contested case hearing that the Department’s expert intended to 

testify that the Petitioner had violated the standard of care regardless of 

whether the conduct was described as a strike or a tap and that the 

Board has the ultimate discretion by statute to decide the applicable 

standard of care for each case based on the statewide standard of minimal

competency and their own expertise. The defense strategy to focus on 

intent, physical harm and humor was a strategic decision; it was not a lack 

of due process.

(Emphasis added). The administrative record supports the trial court’s finding that Dr. 

Augustus was on notice that many different words could and would be used to describe 

the conduct alleged in the Notice of Charges. Perhaps the best evidence of this are Dr. 

Augustus’ own answer to the Notice of Charges and her responses to the Department’s 

requests for admissions, wherein she refers to her actions with the riding crop using 

various verbs. For example, in her answer, Dr. Augustus avers that: (1) “The respondent 

did not strike the patient with the intent to cause harm or pain;” (2) “The riding crop was 

used in a humorous exchange intended to foster the physician/patient relationship;” and 

(3) “The respondent has never hit any patient with the intent to cause harm or pain.”

(Emphases added). Likewise, in her responses to the Department’s Requests for 

Admissions, Dr. Augustus states:
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REQUEST #9: During the July 20, 2015, appointment, you struck PT on 

the buttocks with a riding crop.

RESPONSE: Denied as stated. It is admitted that on July 20, 2015, Dr. 

Augustus pretended to strike the patient on or about the buttocks with a 

riding crop. It is specifically denied that Dr. Augustus actually struck the 

patient with force that would cause pain or injury as has been alleged.

***

REQUEST #12: You have struck other mental health patients on the 

buttocks with a riding crop.

RESPONSE: Denied as stated. It is admitted that on occasion, with a few 

specific patients, Dr. Augustus has pretended to strike the patients on or 

about the buttocks with a riding crop. It is denied that Dr. Augustus actually 

struck any patient with force that would cause pain or injury — physical or 

emotional.

Likewise, in her verified responses to the Department’s interrogatories, Dr. 

Augustus stated that she never “struck . . . with sufficient force to cause injury or pain 

either physical or emotional.” Nonetheless, Dr. Augustus acknowledged that she “made 

contact with or lightly touched [or “lightly tapped” at least eight patients] . . . on or about

the buttocks with a riding crop . . . in the context of a humorous discussion that fostered 

the physician-patient relationship.” 

Finally, at a pre-trial hearing with the Administrative Law Judge (“ALJ”), the 

parties discussed their respective theories of the case. When asked by the ALJ whether 

his client was denying that she struck P.T. with the riding crop, Dr. Augustus’ counsel 

stated that “it is a matter of semantic distinction as far as the State goes” and noted that 

“it is a matter of great importance to Dr. Augustus that the word ‘struck’ was used.” 

However, Dr. Augustus’ counsel ultimately acknowledged, “[S]o, yes, sir, I agree that 

she admitted to striking, if you use that word sort of generically.” The Department 

responded by noting that when Dr. Augustus was interviewed by the State investigator, 

Dr. Augustus used the words “strike” and “pop,” as well as “lightly struck” and “lightly

popped,” and that “[w]hen [she] retained counsel, the[se] characterization[s] changed to 

‘lightly tap’.” As set out above, when Ms. Pickering inquired whether Dr. Augustus had 

struck the patient, P.T., with a riding crop, Dr. Augustus answered, “Yes,” explaining that 

“she had popped her on the bottom with the riding crop.”

Despite Dr. Augustus’ decision to defend her actions by arguing that her intent 

was never to hurt or injure her patients, the gravamen of the Notice of Charges is not 

whether Dr. Augustus inflicted (or intended to inflict) physical harm or pain on her 

patients, nor are the charges based on the amount of force Dr. Augustus used in wielding 
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the riding crop. Rather, the gravamen of the charges is Dr. Augustus’ use of a riding crop 

in any manner during the patients’ therapy sessions. This is a point the Department notes 

in its responses to Dr. Augustus’ requests for admissions. In request number 25, Dr. 

Augustus seeks an admission that the Notice of Charges was based on allegations that Dr. 

Augustus struck P.T. on her buttocks with the riding crop with sufficient force to cause 

pain and bruising. In response, the Department states, inter alia, “[The Notice of 

Charges] does not allege the type of force that was used or reference pain or bruising.” 

From the administrative record, it is clear that Dr. Augustus was (or should have been) on 

notice that the conduct alleged to be a violation of the Tennessee Medical Practice Act 

was not limited to the word “struck.” Semantics aside, Dr. Augustus was not prejudiced 

in her defense because, prior to the contested hearing, she knew the facts, incidents, 

allegations, and statutory violations that would be the focus of the hearing.

Turing to the second issue, we conclude that the Board’s decision is supported by 

substantial and material evidence. The Board found that Dr. Augustus violated sections 

63-6-214(b)(1) and (4) of the Tennessee Medical Practice Act. The Board’s decision was 

based on several factual findings, supra. The Board’s factual findings included that: (1)

“During the July 20, 2015, appointment, [Dr. Augustus] made contact with P.T. on the 

buttocks with a riding crop;” and (2) “[Dr. Augustus] made contact with other mental 

health patients with a riding crop, whip, or other object.” As noted above, in her

responses to the Department’s interrogatories, Dr. Augustus acknowledged that she 

“made contact with or lightly touched [or “lightly tapped” at least eight patients] . . . on 

or about the buttocks with a riding crop . . . .” In short, Dr. Augustus’ own statements 

provide sufficient evidence to support the Board’s findings. 

To the extent Dr. Augustus urges this Court to reweigh the evidence adduced at 

the contested hearing, we decline. As noted above, in reviewing an administrative 

decision, this Court does “not review the fact issues de novo and, therefore, do[es] not 

substitute [its] judgment for that of the agency as to the weight of the evidence, even 

when the evidence could support a different result.” Wayne County, 756 S.W.2d at 279. 

Here, there is evidence to support the Board’s finding that Dr. Augustus used a riding 

crop with patients in a therapeutic setting. Furthermore, there is evidence, e.g., Dr. 

Kyser’s testimony, to support the Board’s decision that such practice constituted a 

deviation from the standard of care and was a violation of the Tennessee Medical Practice 

Act. 

For the foregoing reasons, we affirm the trial court’s order. We pretermit 

discussion of any remaining arguments, including Dr. Augustus’ vague reference to the 

sanctions imposed by the Board. In the first instance, this issue was not raised in the trial 

court and is, therefore, waived. Waters v. Farr, 291 S.W.3d 873, 918 (Tenn. 2009); In re 

M.L.P., 281 S.W.3d 387, 394 (Tenn. 2009); Dye v. Witco Corp., 216 S.W.3d 317, 321 

(Tenn. 2007). Furthermore, the choice of “[t]he appropriate remedy is peculiarly within 

the discretion of the [agency].” Robertson v. Tenn. Bd. of Soc. Worker Certification, 
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227 S.W.3d 7, 13-14 (Tenn. 2007) (quoting McClellan v. Bd. of Regents of State Univ., 

921 S.W.2d 684, 693 (Tenn. 1996)). As such, the reviewing court will review only 

whether the remedy is “unwarranted in law” or “without justification in fact.” Id. (citing 

Mosley v. Tenn. Dep’t of Commerce & Ins., 167 S.W.3d 308, 321 (Tenn. Ct. App. 

2004), and Butz v. Glover Livestock Comm’n Co., 411 U.S. 182, 185-86 (1973)). Here, 

the facts and the legal conclusion drawn by the Board are supported by material evidence 

in the record; as such, the sanctions imposed on Dr. Augustus are not without justification 

in fact, nor unwarranted in law.

The trial courts order is affirmed, and the case is remanded for such further 

proceedings as may be necessary and are consistent with this opinion. Costs of the 

appeal are assessed against the Appellant, Valerie Louise Augustus, for all of which 

execution may issue if necessary.

s/ Kenny Armstrong 

 KENNY ARMSTRONG, JUDGE