FILED

March 5, 1997

Cecil W. Crowson

Appellate Court Clerk

FRANK MCNIEL, M.D. and JANET )

MCNIEL, M.D., ) Davidson Chancery

 ) No. 95-1400-I

Petitioners/Appellants, )

 )

VS. )

 ) Appeal No.

TENNESSEE BOARD OF MEDICAL ) 01-A-01-9608-CH-00383

EXAMINERS, )

 )

Respondent/Appellee. )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY

 AT NASHVILLE, TENNESSEE

HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

WATKINS, MCGUGIN, MCNEILLY & ROWAN

Frank J. Scanlon #3588

214 Second Avenue North

Suite 300

Nashville, TN 37201

ATTORNEY FOR PLAINTIFFS/APPELLANTS

Michelle K. Hohnke #16736

Assistant Attorney General

1510 Parkway Towers

404 James Robertson Parkway

Nashville, TN 37243-0499

ATTORNEY FOR DEFENDANT/APPELLEE

REVERSED, VACATED AND REMANDED

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

SAMUEL L. LEWIS, JUDGE

CONCURS IN SEPARATE OPINION:

WILLIAM C. KOCH, JR., JUDGE
-2-

FRANK MCNIEL, M.D. and JANET )

MCNIEL, M.D., ) Davidson Chancery

 ) No. 95-1400-I

Petitioners/Appellants, )

 )

VS. )

 ) Appeal No.

TENNESSEE BOARD OF MEDICAL ) 01-A-01-9608-CH-00383

EXAMINERS, )

 )

Respondent/Appellee. )

O P I N I O N

The captioned petitioners sought judicial review and reversal of the administrative order of

the respondent Board subjecting them to discipline for professional misconduct. From a judgment

affirming the administrative order, the petitioners have appealed, presenting the issue for review in

the following terms:

 The Petitioner-Appellants, Frank McNiel, M.D. and Janet

McNiel, M.D., respectfully submit that the issue presented for

review in this case is whether or not the Tennessee Board of 

Medical Examiners’ decision to discipline their license to 

practice medicine in Tennessee should be reversed pursuant to

T.C.A. §4-5-322(h) of the Tennessee Uniform Administrative

Procedures Act, in that the decision was not supported by 

substantial and material evidence and was otherwise arbitrary 

and capricious.

 Specifically, this Court must determine whether or not to 

uphold, under T.C.A. § 4-5-322(h), the Board’s conclusions

of law that Frank McNiel, M.D. and Janet McNiel, M.D. 

in prescribing controlled substances to 16 patients for 

chronic, nonmalignant pain, incompetence, unprofessional 

and unethical conduct, prescribing not in good faith to cure 

an ailment and prescribing to addicts without an attempt to 

cure their addiction in violation of T.C.A. § 63-6-214(b)(1), 

(4), (12) and (13) of the Tennessee Medical Practice Act. 

T.C.A. § 4-5-322(h) reads as follows:

 (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;
-3-

 (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) Unsupported by evidence which is both substantial

and material in the light of the entire record.

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.

T.C.A. § 63-6-214 reads in pertinent part as follows:

 63-6-214. Grounds for license denial, suspension revocation

- Reporting misconduct. - (a) The board has the power to:

(3) Suspend or limit or restrict a previously issued license 

for such time and in such manner as the Board may determine.

- - -

(4) Reprimand or take such action in relation to disciplining 

an applicant or licensee, including, but not limited to, 

informal settlements, private censures and warnings, as the 

board in its discretion may deem proper; or

- - -

(b) The grounds upon which the board shall exercise such 

power include, but are not limited to:

(1) Unprofessional, dishonorable or unethical conduct.

(4) Gross malpractice, or a pattern of continued or

repeated malpractice, ignorance, negligence or incompetence in the course of medical practice.

- - -

(12) Dispensing, prescribing or otherwise distributing any 

controlled substance or any other drug not in the course of 

professional practice, or not in good faith to relieve pain and 

suffering, or not to cure an ailment, physical infirmity or 

disease, or in amounts and/or for durations not medically 

necessary, advisable or justified for a diagnosed condition. 

(13) Dispensing, prescribing or otherwise distributing to 

any person a controlled substance or other drug if such 

person is addicted to the habit of using controlled 

substances without making a bona fide effort to cure the 

habit of such patient.

The Petitioners are spouses and associates in the practice of medicine under licensure and
-4-

regulation by the Board. On March 25, 1994, and March 28, 1994, Dr. Frank McNiel was served

with charges and amended charges of violation of T.C.A. § 63-6-214(b), (1), (4), (12) and (13). On

April 24, 1994, Dr. Janet McNiel was served with similar charges. On May 27, 1994, the two cases

were consolidated, and hearings were held in August and September 19, 1994, and January and

February, 1995, at the conclusion of which the following discussion occurred between members of

the Board: 

MR. McCALLUM: We’ll get to that. Now then gentlemen, 

what are your wishes? We have heard no dispute regarding

the 50 some odd facts presented in the original charge.

MR. CUNNINGHAM: I move that we accept these facts as

presented in the original charge. Not the last handout, the

original charge. Those are not contested, as you say, as facts.

DR. BOLTON: I’ll agree and second that.

MR. McCALLUM: All those in favor say aye. And the 

Chairman votes aye.

(Whereupon, said motion carried unanimously.)

MR. McCALLUM: So therefore we have accepted the facts

as presented in the original statement of charges.

MR. McCALLUM: Okay. You adopted the findings of fact.

That we are also adopting the allegations of law. We haven’t.

THE COURT: So you couldn’t be done with your deliberations as to that because you have to decide what violations

of law there were. That’s what we are down to.

MR. McCALLUM: So therefore, we are now down to what

are the violations of law that apply.

DR. BOLTON: I would suggest then that we take the

violations separately as it’s in this packet and go through the

violations.

MR. McCALLUM: What page are you on?

BY DR. BOLTON: I am on page 26.

MR. McCALLUM: You are saying that you would like to

propose that we strike dishonorable from number one and 

adopt the other two.

DR. BOLTON: Yes, sir.
-5-

MR. McCALLUM; Dr. Cunningham, are in concurrence

with this?

MR. CUNNINGHAM: Yes.

MR. McCALLUM: and the Chairman is too. So therefore

all three people have expressed a positive desire for this. 

Number two.

MR. McCALLUM: So you’re recommending that line two

we strike gross malpractice and in line three we strike 

malpractice. What about it, Dr. Cunningham?

MR. McCALLUM: So therefore we are in agreement that 

you strike gross malpractice from line two and malpractice

and ignorance from number two?

MR. McCALLUM: Leave that in. The only change in 

number three according to what you would like to see is 

to remove dispensing. Rest of it would remain the same.

MR. McCALLUM: Now, then for Dr. Janet McNiel, do

you want the same changes in this?

DR. BOLTON: I would make a motion that the same 

changes here on her cause of action that we did under Dr.

Frank McNiel.

MR. CUNNINGHAM: I second the motion.

MR. McCALLUM: Motion has been made and seconded

that the causes or action that we will adopt will be the 

same as those that we have edited for Dr. Frank McNiel.

All those in favor let it be known by saying Aye.

(Whereupon, motion carried unanimously.)

The charges to which the board referred to are included in a 29-page document which is

appended to this opinion. The written finding of facts of the Board tracks verbatim the statements

of fact in the charges, and concludes with the following summary of facts:

 Respondent has administered controlled, mind-altering

substances to these patients, and to many additional patients

as is reflected within several area pharmacy drug audits, in a 

rote fashion, rather than in a fashion tailored to the specific 

needs of the individual patient. Particularly with respect 

to his administration of benzodiazepines, respondent has 

routinely administered the highest Valium dosage (10 mg) 

to most of his patients without ever attempting to titrate

such dosages to individual patient needs.
-6-

 Respondent has, in many instances, administered these 

controlled substances in excess of the recommended daily 

dosage limitations as indicated by the Physicians Desk 

Reference. His chronic, repeated administration of Schedule

II-IV narcotic analgesics such as Lortab, Lorcet Plus, 

Vicodin, Percodan, Percocet, Tylenol (#3 & #4), Darvon

and Darvocet for periods of time approximating 3 years in 

some patients is not recommended within this treatise, nor 

is such chronic administration of these substances recognized 

as appropriate care as a family practice physician, particularly 

when combined with administration of sedating benzoatespines and sedative hypnotics (Phenobarbital and Halcyon) on 

such a long-term, chronic basis, Respondent’s administration 

of such combinations in such a chronic fashion fell below the

standard of care expected of a reasonably competent primary 

case or family practice physician practicing in the State of 

Tennessee. 

 Respondent constantly administered the combination of 

benzodiazepines and narcotic analgesics in a chronic fashion

to most of the ten patients referred to herein (and to many 

others, too numerous to list), without attempting to justify or 

take precautions against the sedating, and potentially 

addictive consequences these combinations could have. In 

many instances, Respondent did not recognize, and in fact 

rewarded, drug-seeking behavior manifested by his patients. 

This conduct on Respondent’s part fell below the standard

of care of a reasonably competent primary care or family 

practice physician practicing in Tennessee.

 Respondent’s chronic use of narcotic analgesics for

management of non malignant pain in many patients fell

below the standard of care expected of a reasonably 

competent family practitioner or primary care physician 

practicing in the State of Tennessee, which is that narcotics

are to be avoided except in limited, acute pain cases, and,

only after all other specific therapies have been exhausted and

the patient has been evaluated according to a multidisciplinary approach, including referrals to orthopedists, 

neurological surgeons, administration of steroidal anti-inflammatory drugs, antidepressants, administration of a TENS unit,

and hypnosis. None of the ten patients referred to herein 

suffered from malignant pain caused by organic disease, and

the Respondent did not limit his administration of narcotics

to short-term, intermittent, acute cases.

 Respondent did not, in any of the ten cases referred 

to herein, or in general with respect to most other patients, 

either refer patients to alternative therapies or to specialists 

in pain management, or refrain from continuing 

administration of strong narcotic analgesics and 

benzodiazepines while the patients were simultaneously 

undergoing treatment by such mental health and pain 

specialists.
-7-

The written “conclusions of law of the Board” state:

The Findings of Fact in this Order are sufficient to

establish violation by the Respondent of the following

provisions of the Tennessee Medical Practice Act, 

T.C.A. §§ 63-6-101 et seq.) for which disciplinary 

action before and by the Board is authorized.

1. T.C.A. § 63-6-214(b)(1), which authorizes the 

Board to discipline a licensee for engaging in conduct

which is unprofessional or unethical;

2. T.C.A. § 63-6-214(b)(4), which authorizes the

Board to discipline a licensee for a pattern of 

continued or repeated negligence or incompetence in 

the course of medical practice;

3. T.C.A. § 63-6-214(b)(12), which authorizes the 

Board to discipline a licensee for prescribing or otherwise distributing any controlled substance or any other 

drug not in the course of professional practice, or not

in good faith to relieve pain and suffering, or not to

cure an ailment, physical infirmity or disease; and

4. T.C.A. § 63-6-214(b)(13), which authorizes the 

Board to discipline a licensee for prescribing or otherwise distributing to any person a controlled substance 

or other drug if such person is addicted to the habit of

using controlled substances without making a bona

 fide effort to cure the habit of such patient.

 

Decisions of an administrative agency are subject to reversal by the Courts if they are

unsupported by substantial and material evidence, or are arbitrary and capricious. T.C.A. § 4-5-322

(h) (4) and (5), above.

Substantial and material evidence is such relevant evidence as a reasonable mind might

accept to support a rational conclusion and such as to furnish a reasonably sound basis for the action

under consideration. Southern Railway Company v. State Board of Equalization, Tenn. App.1984,

682 S.W.2d 196, 199.

Substantial and material evidence is something less than a preponderance of the evidence,

but more than a scintilla or glimmer. Wayne County v. Solid Waste Disposal Control Board. Tenn.
-8-

App. 1988, 756 S.W.2d 274, 280.

The records of the respondents and their testimony adequately support the specific

facts found by the Board. The difficulty lies in the lack of expert testimony evaluating those facts

in terms of violation of the quoted statute.

The charges and supporting evidence against Dr. Frank McNiel arose out of his dealings with

ten individuals identified anonymously in the record as A, B, C, D, E, F, G, G and I.

Dr. Frank McNiel admitted that there were “red flags” in the record of patient C, including

Dr. McNiel’s doubts as to his claim of theft of some of his medication, that C was using the

medication for other than pain and anxiety control -; that Dr. McNiel was convinced that he “had

drug seeking behavior” and that he had a history of drug abuse.

Dr. Frank McNiel admitted that Patient E “very likely has a psychological or physical

dependency” upon the prescribed medicine, but declined to characterize the condition as addiction.

Dr. Frank McNiel’s record of Patient F states “family did not want her in a drug rehab

program” and “minimizes drug problem.”

During his cross-examination, Dr. Frank McNiel agreed with the following quotations from

a published article:

“Narcotic analgesic drugs on (sic) the mainstay of therapy

for patients with acute pain or chronic cancer related pain or 

Intensity.”

He declined to agree with other statements in said exhibit which is not otherwise

authenticated or offered in evidence.

.
-9-

The charges and supporting evidence against Dr. Janet McNiel arose out of her dealings with

individuals identified anonymously in the record as 1, 2, 3, 4, 5 and 6. 

The records of Dr. Janet McNiel indicate that on March 7, 1988, Patient 6 was “using too

many Anexia-D” but the same entry shows that the prescription for the same drug was renewed; that,

on March 23, 1988, 6 “wants pills early;” that, on March 28, 1988, the same medication was represcribed; that on April 6, 1988, the same prescription was renewed; that, on April 20, 1988, the

chart for 6 indicates “too many Anexia and Darvocet;” that, on April 21, 1988, Dr. McNiel told 6

she was addicted and recommended addiction treatment and wrote on the chart “no more Anexia or

Darvocet,” that on May 4, 1988, Halcyon, a controlled substance was prescribed; that on May 5,

1988, Anexia D was again prescribed; and that prescriptions for this drug continued from June, 1988

to October, 1988; that, in October, 1988, Dr. McNiel began injections of Buprenex and prescribed

100 Percocets every two weeks; that, on January 6, 1992, the record states “patient has been taking

too many pain pills, naughty, naughty,” and that 100 more Percocet pills were prescribed on the

dame date.

Dr. Janet McNiel testified that, in June, 1992, she charted Patient 2 with a note “caution with

meds,” that a psychiatrist told Dr. McNiel in September, 10, 1992, that 2 “doesn’t need meds” and

2 was “milking Dr. McNiel for meds;” that 2 was charted for “no more meds,” but from September

14, 1992 through January, 1993, controlled substanceswere prescribed for 2 without an examination.

Dr. Janet McNiel’s June, 1992 chart for Patient 4 reflects a plan for drug screens because of

“questions” about abuse, but prescriptions for controlled substances were continued to March 23,

1993, without a drug screen.

Dr. Janet McNiel’s chart for Patient 5 on April 25, 1988, shows “prob. multiple substance

abuse” and “no plan for substance abuse.” On January 1989, the record shows recommendation for
-10-

drug rehabilitation and “we will not treat her any more.” The record reflects that controlled

substances were prescribed continuously throughout 1991 and 1992 without a charted physical

examination.

The record of Dr. Janet McNiel’s for Patient 6 states “using too many Anexia D cautioned,

wants pills early - explained that she is addicted, thinks she can quit; recommended that she get

help.”

Told her to call Jim Dunlap at New Day if she needs help; patient has been taking too many pain

pills, naughty, naughty.”

Dr. Janet McNiel testified that “there were flags’ in respect to Patient 2, and her record on

this patient stated “caution with meds?” and “no more controlled meds.”

The record of Dr. Janet McNiel on Patient J contains: “meds” recommended drug

rehabilitation and “we will not treat her any more,” and that Dr. McNiel did not read this entry 2

years later before prescribing pain relievers, but she wishes that she had “because I feel it would have

changed things.”

The foregoing records and testimony of the petitioners do not alone establish that their

actions constituted misconduct as described in T.C.A. § 63-6-214.

In Williams v. State Dept. Of Health, Tenn. App. 1994, 880 S.W.2d 955, 958-9, this Court

affirmed discipline of a physician, but said:

[1] The petitioner contends that the Board’s findings are

not supported by substantial or material evidence because

State did not produce expert testimony to establish a 

standard that the appellant violated. The State counters

with the argument that all the Board members were

physicians and therefore were able to judge the acts of

the petitioner without any expert guidance. See CF 

Industries v. Tennessee Public Service Commission, 599
-11-

S.W.2d 536 (Tenn. 1980). The petitioner rejoins that to 

allow *958 members of the Board to base a decision on

their unexpressed knowledge deprives the petitioner of a

meaningful review of the decision. See In re Williams, 

60 Ohio St.3d 85, 573 N.E.2d 638 (1991); Dotson v. 

Texas State Board of Medical Examiners, 612 S.W.2d 

921 (Tx.1981).

 We choose to avoid this conflict in the authorities. It

is not necessary to resolve the conflict in this case, 

because at least one of the grounds on which the 

Board based its decision does not require the Board

to rely on its own expertise. 

In re Williams, cited above, was a State Medical Board case in which the Ohio Supreme

Court affirmed the judgment of the Trial Court reversing the order of the Board for lack of

substantial and material supporting evidence. The Court said:

 In its arguments to this court, the board contends that

Arlen v. Ohio State Medical Bd. (1980), 61 Ohio St.2d

168, 15 O.O.3d 190, 399 N.E.2d 1251, is dispositive.

In Arlen, the physician was disciplined because he had

written prescriptions for controlled substances to a 

person who the physician knew was redistributing the

drugs to others, a practice prohibited by R.C. 3719.06-

(A). The physician appealed on the ground that the

board failed to present expert testimony that such 

prescribing practices fell below a reasonable standard

of care.

 We held that the board is not required in every case to

present expert testimony on the acceptable standard of 

medical practice before it can find that a physician’s 

conduct falls below this standard. We noted that the 

usual purpose of expert testimony is to assist the trier

of facts in understanding “issues that require scientific 

or specialized knowledge or experience beyond the 

scope of common occurrences. ***” Id. at 173, 15 O.O.

3d at 193, 399 N.E.2d at 1254. The board was then 

made up of ten (now twelve) persons, eight of whom 

are licensed physicians. Id.; R.C. 4731.01. Thus, a 

majority of board members are themselves experts in the 

medical field who already possess the specialized 

knowledge needed to determine the acceptable standard 

of general medical practice.

 [1] While the board need not, in every case, present

expert testimony to support a charge against an accused 

physician, the charge must be supported by some 

reliable, probative and substantial evidence. It is here 

that the case against Dr. Williams fails, as it is very 
-12-

different from Arlen.

 [2] Arlen involved a physician who dispensed controlled substances in a manner which not only fell below

the acceptable standard of medical practice, but also

violated the applicable statute governing prescription

and dispensing of these drugs. In contrast, Dr. Williams

dispensed controlled substances in what was, at the time,

a legally permitted manner, albeit one which was 

disfavored by many in the medical community. The only 

evidence in the record on this issue was the testimony 

of Dr. William’s expert witnesses that his use of controlled 

substances in weight control programs did not fall below 

the acceptable standard of medical practice. While the 

board has broad discretion to resolve evidentiary conflicts,

see Conrad, supra, 63 Ohio St.2d at 111, 17 O.O.3d at 67,

407 N.E.2d at 1267, and determine the weight to be given

expert testimony, Arlen, supra, 61 Ohio St.2d at 174, 15

O.O.3d at 194, 399 N.E.2d at 1255, it cannot convert its

own disagreement with an expert’s opinion into affirmative

evidence of a contrary proposition where the issue is one 

on which medical experts are divided and there is no statute 

or ruling governing the situation.

In Dotson v. Texas State Board, cited above, the Texas Supreme Court reversed the judgment

of the Trial Court affirming a disciplinary order and said:

 [2, 3] It is urged by the Board that, since all members 

of the Board are professionals, it was not necessary to 

introduce expert testimony that these drugs were not

therapeutic as prescribed. The difficulty with this 

contention is that the APA limits the court’s review to the

record as made before the Board. A court obviously 

cannot review knowledge, however expert, that is only in

the minds of one or more members. Section (q) of Article

6252-13a (APA) expressly allows an agency to take 

official notice of facts only in the following manner:

 In connection with any hearing held under the provisions

of this Act, official notice may be taken of all facts 

judicially cognizable. In addition, notice may be taken of 

generally recognized facts within the area of the agency’s

specialized knowledge. Parties shall be notified either 

before or during the hearing, or by reference in preliminary 

reports or otherwise, of the material officially noticed, 

including any staff memoranda or data, and they must be 

afforded an opportunity to contest the material so noticed.

The special skills or knowledge of the agency and its staff 

may be utilized in evaluating the evidence.

There was no attempt by the Board to comply with this
-13-

section. Furthermore, a party must be accorded the right to 

cross-examine and rebut adverse evidence. See Article

6252-13a, Sections 13(g) and 14(p); Richardson v. City of

Pasadena, 513 S.W.2d 1 (Tex.1974); McCormick on 

evidence § 353 (2nd ed. 1972).

T.C.A. § 4-5-313 provides in part: 

Official notice may be taken of:

(A) Any fact that could be judicially noticed in the 

Courts of this state;

(B) The record of other proceedings before the agency;

(C) Technical or scientific matters within the agency’s 

specialized knowledge; and

(D) Codes or standards that have been adopted by an 

agency of the United States, of this state or of another

state, or by a nationally recognized organization or 

association.

Parties must be notified before or during the hearing,

or before the issuance of any initial or final order that 

is based in whole or in part on facts or material noticed

of the specific facts or material noticed and the source

thereof, including any staff memoranda and data, and 

be afforded an opportunity to contest and rebut the 

facts or material so noticed. [Acts 1974, ch. 725, § 9;

1978, ch. 938, §§ 6-8; T.C.A., §§ 4-515, 4-5-109; Act 

1982, ch. 874, § 52.] 

There is no record that petitioners were notified that the members of the Board would

consider as evidence those matters of expert information known to them, or as to which they held

an opinion; and no record appears that such information or opinion was disclosed at the hearing with

opportunity to cross-examine and contradict.

Under the circumstances, the undisclosed expertise of the Board cannot substitute for lack

of evidence.

The Board found that respondent’s acts and omissions constituted “a pattern of continued or
-14-

repeated negligence or incompetence;” “prescribing or otherwise distributing a controlled substance

or any other drug not in the course of professional practice, or not in good faith to relieve pain and

suffering, or not to cure an ailment, physical infirmity or disease;” and “prescribing or otherwise

distributing to any person controlled substance or other drug if such a person is addicted to the habit

of using controlled substance without making a bona fide effort to cure the habit of such a patient.”

In order to affirm the Boards’ “Conclusions of Law,” this Court must find in the record,

expert testimony to support the finding of the occurrence of the violations of the statute stated in the

Conclusions of Law.

The emphasized words and phrases are terms of art in the science of medicine, and the Courts

are not qualified to define or apply them to the facts of these cases. In cases involving scientific or

technical evidence, the “substantial and material evidence standard” in Tenn. Code Ann. § 4-5-

322(h)(5) requires a searching and careful inquiry that subjects an administrative body’s decision to

close scrutiny. Wayne Co. v. Tennessee Solid Waste Disposal Control Board, 756 S.W.2d 274, 280,

citing Crounse Corp. v. ICC, 781 F.2d 1176, 1187 (6th Cir.), cert. denied, 479 U.S. 890, 107 S.Ct.

290, 93 L.Ed.2d 264 (1986); Cranston v. Clark, 767 F.2d 1319, 1321 (9th Cir. 1985). Here that

scrutiny revealed a gap between the technical proof the Board established, and the statutory

provisions it alleged the Appellants violated.

The only testimony offered by the State in this regard was that of Dr. Brian W. Christman,

which included the following:

Q. Dr. Christman, did you review medical records on

behalf of Patient A?

A. Yes, sir, I did.

Q. What were your conclusions, or your respondent’s

prescribing practices for this patient?

A. It was my opinion that in the absence of some kind

of documental pathology, this represents significantly over-
-15-

prescribing.

Q. Dr. Christman, did you have an opportunity to

review records provided on Patient B?

A. I would say that the prescription of Phenobarbital 

without a clear indication would not meet the standard of

care.

Q. Dr. Christman, did you have an opportunity to

review records provided by my office regarding Patient C?

A. Yes, sir, I did.

Q. Did you arrive at any opinions regarding the 

respondent’s prescribing practices with respect to that 

patient?

A. Yes, sir, I did.

Q. Could you indicate to the Board what those were?

A. Despite what seems to be transparent drug seeking

behavior, he wasn’t referred to mental health professionals.

I felt this represented significant over-prescription of 

narcotics without adequate indication.

Q. Did you feel that this conduct fell below the 

applicable statewide standard of care?

A. Yes, sir, I did.

Q. Doctor, did you review records provided by my 

office with respect to Patient D?

A. Yes, sir, I did.

Q. What were your opinions, Doctor, regarding the

respondent’s prescribing practice with respect to Patient 

D?

A. I thought it was fairly clear that the deterioration 

in her mental status was associated with the cumulative 

dosing of narcotics and sedatives. I thought the antipsychotic medication was probably prescribed without

adequate evaluation.

Q. Did you consider this course of treatment for 

Patient D to fall below the applicable statewide standard

of care?

A. Yes, sir.
-16-

Q. Dr. Christman, did you review records provided 

by my office on Patient E?

A. Yes, sir, I did.

Q. And what were your opinions regarding the

respondent’s prescribing and treatment practices for

Patient E?

A. I thought this reflected over-prescription of 

narcotics, again, without clear indication in a patient who

significantly manifested addiction potential.

Q. Did you consider the respondent’s treatment and 

prescribing of controlled substances to this patient to fall

below the applicable statewide standard of care?

A. Yes, sir.

Q. Dr. Christman, did you review records provided 

to you by my office on behalf of Patient F?

A. Yes, sir, I did.

Q. Dr. Christman, what were your opinions regarding

respondent’s treatment and prescribing of Patient F?

A. I thought the persistent dosing of Percocet and 

Darvocet without indication would fall below the statewide standard of care.

Q. Dr. Christman, did you evaluate records provided

to you by our office with respect to Patient G?

A. Yes, sir, I did.

Q. Dr. Christman, did you arrive at any opinions 

regarding the propriety of the respondent’s treatment of

or prescriptions for this patient?

A. I did. I think the failure to perform an examination

in the presence of neurologic symptoms, particularly with

the incontinence and leg weakness, fell below the statewide

standard of care.

Q. Dr. Christman, did you have occasion to review

records provided to you by my office regarding Patient H? 

A. Yes, sir, I did.

Q. What were your opinions, Doctor, regarding the 

respondent’s treatment of and prescribing practices for

this patient?
-17-

A. I felt it fell below the statewide standard of care.

Q. Doctor, did you arrive at any conclusions or 

opinions regarding the respondent’s treatment of and 

prescribing controlled substances for Patient I?

A. I did. But in this case, I think it’s close, but I 

can’t definitively say it fell below the statewide standard

of care.

Q. So your testimony is that you do not believe that

the treatment or the prescribing for Patient I fell below

the statewide standard of care.

A. No, sir. I said that I can’t tell whether it did. I 

can’t be certain.

Q. Dr. Christman, did you have occasion to review

records provided to you by our office regarding Patient 

J?

A. Yes, sir.

Q. What were your opinions or conclusions, Doctor,

regarding the respondent’s treatment of and prescribing

for Patient J?

A. The lack of appropriate evaluation and continued

prescriptions of large amounts of narcotics, I felt made

the management of the case fell below the statewide

standard of care.

Q. Did you have occasion to review records 

provided to you by our office on Patient Number 1?

A. Yes, sir, I did.

Q. What were your conclusions or opinions 

regarding the respondent’s treatment of or prescribing 

practices for Patient 1?

A. I felt that the prescribing practices fell below the

statewide standard of care.

Q. Dr. Christman, did you evaluate medical records

provided to you by my office regarding Patient Number 

2?

A. Yes, sir, I did.

Q. What were your conclusions or opinions, Dr. 

Christman, regarding the respondent’s treatment of or 

prescribing practices for this patient?

A. I felt that the prescribing practices fell below the
-18-

statewide standard of care. There were many indications

of drug seeking behavior.

 Q. Dr. Christman, did you have occasion to review

medical records provided to you by my office on Patient

Number 3?

A. Yes, sir, I did.

Q. What were your conclusions or opinions, Doctor,

regarding the propriety of the respondent’s treatment of 

or prescribing for this patient?

I felt that because of the persistent headaches, 

additional evaluation by a specialist, perhaps a 

neurologist or pain specialist, should have been sought 

instead of continued prescription of high doses of 

narcotic analgesics.

Q. Doctor, did you have occasion to review medical 

records provided to you by our office on behalf of 

Patient Number 4?

A. Yes, sir, I did.

Q. Doctor, what were your conclusions or opinions

regarding the treatment of or the prescribing practices of

the respondent relating to this patient?

A. I felt that this case fell below the statewide 

standard of care.

Q. Dr. Christman, have you had occasion to review

records provided to you by my office related to Patient

Number 5?

A. Yes, sir, I did.

Q. What were your opinions, Doctor, regarding the 

respondent’s treatment of and prescribing for this 

patient?

A. This was a 37 year old woman with a history

of a motor vehicle accident with chronic low back pain.

The physician, in the chart, reported a diagnosis of 

multiple substance abuse on April 1988, and 

recommended drug rehabilitation on January of 1989.

Nevertheless, beginning in August of 1991, she began

prescribing Propoxyphene and Valium, and did so for 

the next year.

I thought that the practice of prescribing 

continual prescriptions of controlled substances to a 

patient with a known problem of substance abuse fell
-19-

below the acceptable standard of care in the State of

Tennessee.

Q. Dr. Christman, did you have occasion to

review the medical records provided to you by my 

office on Patient 6?

A. Yes, sir, I did.

Q. What were your conclusions or opinions 

regarding the respondent’s treatment of and prescribing 

practice for this patient?

A. I felt that the prescription practice fell below the 

statewide standard of care.

Q. Did you find that this practice, in your opinion, 

violated the applicable statewide standard of care?

A. Yes, sir.

It is seen that the testimony of Dr. Christman was limited to the “statewide standard of care”,

and “significantly over prescribing.”

The words “statewide standard of care” and “over prescribing” are not found in the quoted

statute, the charges, or the “conclusions of law,” and are not the equivalent of the words of the

statute. No substantial and material expert evidence is found in the testimony of Dr. Christman

or elsewhere that the acts and omissions of the petitioners constituted the degree of misconduct for

which the statute authorizes discipline.

Inasmuch as the members of the Board were physicians, it is possible that they utilized their

own expertise in concluding that the acts and omissions of respondents qualified as misconduct

specified in the statute. However, nothing is cited or found in this record to indicate that such expert

evaluation by the Board took place. Absent evidence of such express exercise of expertise by the

Board, this Court is unable to presume that it took place.

The Board insists that the testimony of petitioners supplies the missing expert testimony. The
-20-

above quoted testimony of petitioners identifies shortcomings in their treatment of patients, but does

not admit that any of the shortcomings amounted to that conduct described in the statute and in the

“conclusions of law of the Board.”

The conclusions of the Board and its judgment are without necessary support of necessary

material and substantial evidence, and cannot be affirmed. 

The decision of the Board and it’s affirmance by the Trial Court are reversed and vacated.

All costs in this Court and in the Trial Court will be paid by the Respondent-Appellee. The cause

is remanded to the Trial Court for any necessary concluding procedure.

REVERSED, VACATED AND REMANDED.

___________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

_____________________________

SAMUEL L. LEWIS, JUDGE

CONCURS IN SEPARATE OPINION

WILLIAM C. KOCH, JR., JUDGE