# FILED
March 5, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk FRANK MCNIEL, M .D. and JAN ET ) MCNIEL, M.D., ) Davidson Chancery ) No. 95-1400-I Petit ioners/Ap pellants, ) ) VS. ) ) Appeal No. TENNESSEE BOARD OF MEDICAL ) 01-A-01-9608-CH-00383 EXAMINERS, ) ) Respondent/Appellee. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEA LED FROM

THE CHANCER

Y COURT OF

DAVIDSON

COUNTY AT NASHVILL E, TENNESSEE HONORABLE IR

VIN H. KI

LCREASE, JR ., CHANCE LLOR
WATKINS, MCGUGI

N, MCNEIL

LY & ROWAN Frank J. Scanlon #3588 214 Second Avenue

North Suite 300 Nashville, TN 37201 ATTORNEY FOR PLAI

NTIFFS/APPEL

LANTS
Michelle K. Hohnke #16736 Assistant Attorney Gene

ral 1510 Parkway Tow ers 404 James Robertson Parkway Nashville, TN 37243-0499 ATTORNEY FOR DEFENDANT/APPEL LEE REVERSED, V

ACATED AN

D REMAND ED
HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION
CONCUR: SAMUEL L . LEWIS, JUDGE
CONCURS IN SEPARATE OPINI ON: WILL IAM C. KOCH, JR., JUDGE-2-

FRANK MCNIEL, M .D. and JAN ET ) MCNIEL, M.D., ) Davidson Chancery ) No. 95-1400-I Petit ioners/Ap pellants, ) ) 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, thepetitioners have appealed, presenting the issue for review in the following ter

ms: 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 B oard of Medical Examiners’ decision to discipline their license to practic e medicin

e in Tennessee should be re versed p ursuant t o T.C.A. §4-5-322(h) of the Tennessee Uniform Administrative Pr oc ed ur es Ac t, in th at th e d ec is io n w as no t s up po rt ed by su bs ta nt ia l a nd ma te ri al ev id en ce an d w as ot he rw is e a rb it ra ry and cap ricious. Specifically, this Court must determine whethe r or not to uphold, under T.C.A. § 4-5-322(h), the Board’s conc lusions of law that Frank McNiel, M.D. and Janet McNiel, M.D. in prescribing controlled substances to 16 patients for chronic , nonmalig

nant pain , incompe

tence, u nprofes sional and unethical conduct, prescribing not in good f aith 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 a s follows: (h) The court may

affirm the decision of the agency or re ma nd th e c as e for fu rt he r p ro ce ed in gs . T he co ur t m ay reverse or modify

the decision if the rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions or decisions are: (1) I n violation

of constitutional or

statutory provision s;-3- (2 ) In ex ce ss of

th e s ta tu to ry a ut ho ri ty o f t he Ag en cy; (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 de termining the substa

ntiality of evide nce, the court sha ll take into accoun t whateve r in the record fa

irly detrac ts from its weight, but the court shall not substitute its judgment for that of the agency

as to the weight of the evidence on questionsof fact
. T.C.A. § 63 -6-214 r

eads in pe rtinent pa rt as foll ows: 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 ma y determine.

- - - (4) Re prima nd or t ake su ch acti on in relat ion t o dis cipli ning an applicant or licensee, including, but not limited to, informal settlements, private censures and warning s, as the board in its discretion may dee m proper; or
- - - (b) The grounds upon which the board shall exercise suc h power include, but are not limited to: (1) Unpr ofession al, dishonorable o r unethic al conduct. (4) Gross malpractice, or a pattern of c ontinued or repeat ed malpr

actice , ignora

nce, ne glige

nce or incompetence in the course of medical practice.

- - - (1 2) Di sp en si ng , p re sc ri bi ng or ot he rw is e d is tr ib ut in g a ny 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, phy sical infirmity or di se as e, or in am ou nt s a nd /o r for du ra ti on s n ot me di ca ll y necessary , advisable or justified for a diagnosed condition. (13) Dispensing, prescribing or other wise 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 cur e the habit of s uch patie

nt.
Th e Petitioners are spouses and associates in the practice of medicine under licen sure an d-4-

regulation by

the Board. On March 25, 1994, and Marc h 28, 1994, Dr. Frank McNiel was served withcharges and amended c harges of violation of

T.C.A. § 63-6-214(b), (1), (4), (12) and (13). O n April24, 1994, Dr. Janet McNiel was served with similar charges. O n May 27, 1994, the two cases
were consolidated, and hearings were he ld in August and September 19, 1994, and January and Fe br ua ry, 1995, at the conclusion of which the following discussion occurred between member s of the Boa rd: MR. McCALLU

M: We’ll get to that. Now then gentlemen, what are y our wishes? We have heard no dispute regarding the 50 some odd facts presented in the original cha rge. MR. CUNNINGHAM: I

move that we accept these facts as presented in the original charg e. Not the last handout, the origina l charg e. Those

are not c ontested , as y ou say , as fac ts. DR. BOL TON: I ’ll agr

ee and se cond that
. MR. McCALLU

M: All those in favor say ay e. And the Chairman votes aye
. (Whereupon, said motion carried unanimously .) MR. McCAL

LUM: So theref ore we h ave acc epted the

facts as prese nted in the

origina l stateme nt of cha rges. MR. McCAL

LUM: O kay . You adopted the f

indings o f fact. That we a re also a dopting t he alleg ations of

law. We ha

ven’t. THE COURT: So you couldn’t be done with your deliberations as to that because you ha ve to decide what violations of law there were. That’s what we are down to. MR. McCALLU

M: So therefore, we are now down to what ar e t he vi ol at io ns of

la w t ha t a pp ly. DR. BOLTON: I

would suggest then that we take the violations separately a s it’s in this packet and go through the violations
. MR. McCALLU

M: What page are you on? BY DR. BOLTON : I am on page 26. MR. McCAL

LUM: Y ou are sa

ying that y

ou would lik

e to propose that we strike dishonorable from number one and adopt the other two. DR. BOLTON: Yes, sir.-5- MR. McCALLU

M; Dr. Cunningham, are in concurrence with this? MR. CUNNI

NGHAM: Y es. MR. McCALLU

M: and the Chairman is too. So therefore all three people have expressed a positive desire for this. Number two. MR. McCALLU

M: So you’re rec ommending that line two we strike gross malpractice and in line three we strike malpractice. Wha

t about it, D

r. Cunning

ham? MR. McCAL

LUM: So theref ore we a re in ag reemen t that you strike g

ross malpractice from line two and malpractice and ignorance from number two? MR. McCALLU

M: Leave that in. The only change in number th

ree ac cording

to what y

ou would lik

e to see i s to remove dispensing. Rest of it would remain the same. MR. McCALLU

M: Now, then for Dr. Janet McNiel, do you want the s ame cha

nges in t his? DR. BOLTON: I

would make a motion that the same changes here on her c ause of action that we did under Dr. Frank M cNiel. MR. CUNNINGHAM: I

second the motion. MR. McCALLU

M: Motion has been made and seconded that the causes or action that we will adopt will be the same as those that w e have e dited for Dr. Fra nk McNiel. All those in favor let it be known by sa ying Ay e. (Whereupon, motion carried unanimously .)
The charges to which the board re ferred to are included in a 29-page docume nt which is appended to this opinion. The writt en finding of fa

cts of the Board t racks ve rbatim the

statemen ts of fact in the cha

rges, a nd conclu des with th

e following summa

ry of fact s: Respondent has administered controlled, mind-altering substanc es to thes e patien ts, and to many

additiona l patients as is reflected within several area pha rmacy dr ug audits, in a rote fashion, rather than in a fashion tailored to the specif ic needs of the individ

ual patie nt. Particularly

with resp ect to his admin

istration of benzodi azepines , respond ent has routinely administered the hig hest Valium dosage (10 mg) to most of hi s patientswithout ev er attem pting to t itrate such dosa ges to individual p atient needs.-6- Respondent has, in many instance s, administered these co nt ro ll ed su bs ta nc es in ex ce ss of th e r ec om me nd ed da il y dosage limitations as indicated by the Physicians Desk Reference . His chronic, rep eated a dministra tion of Sch

edule II -IV narcotic a

nalgesics such as L

ortab, Lorcet Plus, Vicodin, Percodan, Percocet, Ty lenol (#3 & #4), Darvon and Darvocet for periods of time approximating 3 y ears in some patients is not recommended within this treatise, nor is such chronic administration of these substances recognized as ap pr op ri at e c ar e a s a fa mi ly p ra ct ic e p hys ic ia n, pa rt ic ul ar ly when com

bined with

administr

ation of s edating

benzoate spines and sedative hy

pnotics (Phenobarbital and Halcyon) on such a long-term, chronic basis, Respondent’s administration of such combinations in such a chronic fashion fell below the st an da rd of

ca re ex pe ct ed of

a r ea so na bl y co mp et en t p ri ma ry case or family

practice phy sician practicing in the State of Tennessee. Respondent constantly administered the c ombination of benzodiazepines and narcotic analgesics in a chr onic fashion to mo st of

th e t en pa ti en ts re fe rr ed to he re in (a nd to ma ny others, too numerous to list), without attempting to justify or ta ke pr ec au ti on s a ga in st th e s ed at in g, an d p ot en ti al ly addictive consequences these combinations could have. I n many instance s, Respond

ent did not

recognize, and in fact rewarded, drug-see

king behavior manifested by his patients. This conduct on Respondent’s part fell below the standard of ca re of a r ea so na bl y co mp et en t p ri ma ry c ar e o r f am il y practice phy sician practicing in Tennessee. Respondent’s chronic use of narcotic analg esics for manage ment of no n malign ant pain in many patients f

ell be lo w t he st an da rd of ca re ex pe ct ed of

a r ea so na bl y competent family pra

ctitioner or primary

care phy sician practicing in the State of Tennessee, which is that na rcotics are to be avoided except in limited, acute pain cases, and, only after a

ll other specific therapies have been exhausted and the patie nt has bee

n evalua ted acc ording t

o a multidisciplinary approa

ch, including referrals to orthopedists, neurolog ical surgeons, ad

ministrati on of ster

oidal ant i-inflam

matory drugs, antidepr

essants, administr

ation of a TENS unit, and hypnosis. None of the te n patients referred to herein suffered from malignant pain caused by org anic disease, and the Respondent did not limit his administration of narcotics to short-t erm, inte rmittent, acute c ases. Respondent did not, in any of the ten ca ses referred to herein, or in general with respect to most other patients, either r efer pa tients to a

lternati ve thera

pies or to special ists in pai n mana gement , or ref rain f rom co ntin uing administration of strong narcotic analge sics and be nz od ia ze pi ne s w hi le th e p at ie nt s w er e s im ul ta ne ou sl y undergoing treatment by such mental health and pain specialists.-7- The written “conclusions of law of the Board” state: The Find ings of Fact in thisOrder a re suff icient to establish violation by the Respondent of the following provisions of the Tennessee Medical Practice Act, T. C. A. §§ 63 -6 -1 01 et se q. ) for wh ic h d is ci pl in ar y 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 eng aging in conduct which is un

profess ional or u

nethica l; 2. T.C.A. § 63-6-214(b)(4), which authorizes the Board to discipline a licensee for a patter n of continued or repeated neglig ence 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 c ontrolled substance or any other drug not in the course of professional practice, or not in good f

aith to re

lieve pa in and suf

fering , or not to cure an ailment, phy sical infirmity or disease; a nd 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 ef fort to cu re the ha bit of such patient
. Decisions of an administrative agency are subject to r eversa

l by th e Courts if they are unsupportedby substantial and material e vidence, or are arbitrary

and capricious. T.C.A. § 4-5-322 (h) (4) and (5), above.

Substantial and material evidence is su ch relevant evidence as a re asonable mind might accept to support

a ration al concl

usion and s uch as to f

urnish a reaso nably

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 somethingless than a preponderance of the evide nce, butmore than a scintilla or glimmer. Way ne County

v. Solid W

aste Dispo sal Control B oard . Tenn.-8-

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

The records of the respondents and their t esti mony adequa tely support the specif

ic facts found by the

Board. The difficulty

lies in the lack of

experttestimony

evaluat ing those facts in terms of violation of the quoted statute.

The charges and

supportin g evide

nce ag ainst Dr. Frank M cNiel ar ose out of his dealing s with ten in di vi dua ls id ent ifi ed a non ymou sl y in t he r eco rd a s A, B, C , D, E, F , G, G an d I.

Dr. Frank McNiel admitted that there were “red flag s” in the record of patient C, including Dr. McNiel’ s doubts asto his claim of theft o f s ome of his medication, that C was using the medi cation for othe

r than pa in and anxie

ty c ontrol -; t

hat Dr. Mc

Niel wasconvinced th at he “ha d drug seeking behavior” a

nd that he had a history of drug abuse.

Dr. Frank M cNiel ad

mitted tha

t Patient E

“very likely has a p sychologic al or physical de pe nd en cy” upon the prescribed medicine, but declined to chara cterize the condition as addiction.

Dr. Frank McNi el’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 agreedwith the following quotations from a published article:

“Narcotic analgesic drug s on (sic) the mainstay of therapy for patients with acute pain or chronic cance r related pain or Intensity .”
He declined to agree with other statem en ts in said e

xhibit which

is not othe

rwise authenticated or offered in evidence
.

.-9- The charges and supporting evide nce against Dr. Janet McNiel arose out of her dealing s with individuals identified anonymously in the record as 1, 2, 3, 4, 5 and 6.

The records of

Dr. J anet M cNiel indi cate t hat on March 7 , 1988 , Pat ient 6 was “us ing t o o many Anexia-D” but

the same entry

shows that

the pres cription f

or the sa me drug was renewed; tha

t,
on March 23 , 1988, 6 “ wants pill s early ;” that, o n March 2 8, 1988, the same me dicati on 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 rec ommended

addictio n treatme

nt and wr ote on the chart “ no more A

nexia or Darvocet,” that on May 4, 1988, Halcy on, a controlled substance was prescribed; that on M ay 5, 1988, Anexia D was again prescribed; and that pre scriptions for this drug continued from

June, 1988 to October, 1988; that, in October, 1988, Dr. McNiel began injections of Bupre nex and prescribed 100 Percocets every

two weeks; that, on January 6, 1992, the r ecord states “patient has been taking too many pain pills, naught

y, n aughty ,” and t hat 100 more Percocet pills were prescribed on the dame date.

Dr. Janet McNiel testifie d that, in June, 1992 , she cha rted Patie nt 2 with a note “ca

ution with meds,” that a psychiatrist told Dr. McNie l 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 throu gh Janua

ry , 1993, co ntrolled s u bstances were pr escribed 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 Mar ch 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 phy sical 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 c an quit; rec ommended that she get help.” Told her to call Jim Dunlap at New Day if she need s help; pa

tient has b een taking too ma ny p ain pills, naughty, naug

hty.”

Dr. Janet McNiel testified that “the re were flags’ in respe ct to Patient 2, and her record on this patient stated “caution with meds?” and “no more controlled meds.”

The record

of Dr. Jane

t Mc Niel o n Patient J contains: “meds” recommended drug rehabilita tio n an d “ we wi ll no t t re at he r a ny m or e, ” a nd th at Dr . M cN ie l d id no t r ea d t hi s e nt ry 2 yearslater be

fore pr escribing pain r

eliever s, but she wishes that she had “because I feel it would have changed things.”

The foregoing reco

rds and testimony

of the pe

titionersdo not alon

e establish that the

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

In Willia ms v. State

Dept. Of H

ealth , Tenn. App. 1994, 880 S.W.2d 955, 9 58-9, thisCourt affirmed discipline of a phy sician, but said:

[1] The petitioner contends that the Board’s findings are not suppor

ted by substantia

l or mater ial evide nce bec ause 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 we re physicians and there

fore were able to judge the a cts of the petitioner without any expert g uidance. 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.3 d 85, 573 N .E.2d 638 ( 1991); Dotson v. Texas Stat

e Board of

Medical Examine rs , 612 S.W.2d 921 (Tx.1981). We cho ose to avo id th is con fli ct i n t he a ut hor it ies . It is not necessary

to resolve the conflict in this case, because at least one of the gr ounds on which the Board based its decision does not require the Boa rd to rely on its own expertise.
In re Williams, cited above, was a State Medical Board ca se in which the Ohio

Supreme Courtaffirmed 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 c ontends 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 physicia n knew was redistributing the drugs to others, a practice prohibited by R.C. 3719.06- (A). The phy sician 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 tha

t the boar d is not re quired in

every case to present expert testimony on the ac ceptable standard of medical p

ractice before it can find that a ph

ysi cian’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 be yond 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 phy sicians. Id. ; R.C. 4731.01. Thus, a majority of board membe rs are themselves experts in the medical field who already possess the specialized knowledge needed to determine the a cceptable standard of general medical practice. [1] While the board need not, in every ca se, present expert testimony to support a charg e against an accused physician, the cha

rge must be supported by some reliable, probative and substantial evidence. I t is here th at th e c as e a ga in st Dr . W il li am s f ai ls , a s i t i s v er y-12- differe nt from Arlen
.[2] Arlen involved a physician who dispensed controlled substances in a manner which not only fell below the acc eptable

standar d of medic al prac tice, but also violated the applicable statute governing pr escription and dispe

nsing of these dr ugs. I n contra st, Dr. Willi ams dispensed controlled substances in what was, at the time, a lega lly p ermitted

manner, albeit one which w as di sf av or ed by m an y in th e m ed ic al co mm un it y. T he on ly ev id en ce in th e r ec or d o n t hi s i ss ue wa s t he te st im on y 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 pr actice. While the board ha s broad di scretion to resolv e eviden

tiary conflic ts, see Conrad, sup ra , 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, sup ra , 61 Ohio St.2d at 174, 15 O.O.3d a t 194, 399 N .E.2d at 1 255, it ca nnot conv ert 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 Stat

e Board, citedabove, the Texas Supreme Court reversed the judgment of the Trial Court affirming a disciplinary order and said: [2, 3] It

is urge d by

the Boa rd that, s ince all m

embers of the Board are professionals, it was not nec essary to introduce expert testimony that these drug s were not therape utic as pr

escribed. The dif

ficulty with this contention is that the APA limits the court’s review to the re co rd as ma de be fo re th e B oa rd . A co ur t o bv io us ly cannot r eview kn owledg e, however exper t, that is on

ly in the minds o f one or m

ore memb ers. Sec tion (q) o f Article 6252-13a (APA) expressly a llows an agency

to take official notice of facts only in the following manner: In connection with any

hearing held under the provisions of this Ac t, offici al notice may be taken

of all fa

cts 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 be fo re or du ri ng th e h ea ri ng , o r b y re fe re nc e i n p re li mi na ry 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 ag ency a nd its staff may be utilized in evaluating the evidence. There w as no atte

mpt by the Boa rd to comp ly with this-13- section. Furthermore, a party must be accorded the right to cross-e xamine and

rebut ad

verse evidence . See Art icle 6252-13a , Sections13(g) a nd 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 pro vides in pa rt: Official notice may

be taken of: (A) Any f

act that could be judicially noticed in the Courts of this state; (B ) T he re co rd of

ot he r p ro ce ed in gs be fo re th e a ge nc y; (C) Technical or

scientif ic matter s 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 na

tionally recog

nized organization or association. Parti es mus t be no tifi ed befo re or du ring th e heari ng, or befor e the issu ance of

any initial or final ord er 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. 8 74, § 5 2.]
There is no rec ord that p etitioner s were n otified th at the mem bers of the Boa

rd would consider as evidence those matters of expert informat ion known t

o them, or

as to which they

held
an opinion; and no record appears that such information or opinion wasdisclose d at the he aring with opportuni ty to cross-e xamine and

contrad ict.

Under the circu

mstance s, the undisclosed expertise of the Board cannot substitute for lack of evidence.

The Board found that respondent’s acts and omissions constituted “ a patternof continuedor-14-

repeated negligence

or incompetence ;” “prescribing or otherwise distributing a controlled substance
or any other d rug not in the c ourse of profess ional pra

ctice, o r not in g ood faith

to relieve pain and suffer ing, or not to cure an ailment, phy sical infirmity or disease;”and “prescribing or ot herwis e distributing to any person controlled substanc e or othe r drug i f such a personis addicted to the ha bit of using controlled substancewithout ma king a b ona fide

effort t o cure the habit of such a patient.”

In order to affirm the Boards’ “Conclusions of Law,” this Court must find in the record, experttestimony to support the finding of the oc currence of the

violationsof the sta

tutestated in the Conclusions of Law.

The emphasized words and phrases are terms of art in the science of medic ine, and t he Courts
are not qualified to define or apply them to the facts of these cases. I n cases involving scientific or technical evidence, the “substantial and material eviden ce standard” in Tenn. Code Ann. § 4-5- 322(h)(5) requires a searching and c areful inquiry tha t subjects an administrative body ’s decis ion to close scrutiny. Way

ne Co. v. Tennessee

Solid W aste DisposalControl Boa rd , 756 S.W.2d 274, 280, citing Crounse Cor

p. v. ICC, 781 F.2d

1176, 1187 (6th

Cir.), cert. denied , 479 U.S. 890, 107 S.Ct. 290, 93 L.E

d.2d 264 ( 1986); Cranston v . Clark , 7 67 F.2d 1319, 1321 (9th Cir. 1985). Here that scrutiny revealed a gap between the techni cal proo f 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. Br ian W. Christman, which inclu ded th e foll owing:

Q. Dr. Christman, did you review medical records on behalf of Patient A? A. Yes, sir, I did. Q. What were

you r conclu sions, or y

our resp ondent’s prescr ibing pr actice s for this p atient? A. It was my

opinion that in the absence of some kind of documental pathology , this represents significantly over--15- prescr ibin g. Q. Dr. Chris tman, did y ou have a

n opportun

ity t o review records p rovided on P atient B? A. I would say

that the p rescription of Phe

nobarbit al without a clear indication would not meet the standard of care. Q. Dr. Chris tman, did y ou have a

n opportun

ity t o review r ecords p rovided b y my

office regar ding Pati ent C? A. Yes, sir, I did. Q. Did you arrive

at any opinions reg arding the responde nt’s pre scribing

practic es with re spect to th at patient? A. Yes, sir, I did. Q. Could you indicate to the Boa rd what those were? A. Despite what seems to be transparent drug seeking behavior , he wasn ’t refe

rred to me

ntal hea lth profe ssionals. I felt this represented sig nificant 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. Do ct or , d id you re vi ew re co rd s p ro vi de d b y my office with respect to Patient D? A. Yes, sir, I did. Q. What were your

opinions, Doctor, regarding the responde nt’s pre scribing

practic e with re spect to Pa tient D?
A. I thought it was fairly clear that the deterioration in her mental status was associated with the cumulative dosing o f narcotics and s edative s. I thought theantipsychotic medication wa s probably presc ribed 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 r ecords provided by my office on Patient E? A. Yes, sir, I did. Q. And what were your opinions regarding the respondent’s prescribing and trea tment practices for Patient E? A. I thought this reflected over-prescription of narcotics, again, without clear indication in a patient who signific antly

manifest ed addic tion poten

tial. Q. Did you consider the r espondent’s treatment and prescr ibing of controlled substanc es to this pa tient to fa ll below the applicable statewide standard of ca re? A. Yes, sir. Q. Dr. Christman, did you review r ecords provided to you by my office on behalf of Patien t F? A. Yes, sir, I did. Q. Dr. Christman, what were your opinions regarding respondent ’s treatment and prescribi ng of Patient F? A. I thought the persistent dosing of Percocet andDarvocet 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. Chris tman, did y ou arriv e at any

opinions regarding the proprie

ty of the responde

nt’s treatment of or presc riptions f or this pa tient? A. I did. I

think the failure to perform an examination in the pre sence of

neurolog ic sy mptoms, pa

rticular ly with the incontinence and leg weakne ss, fell below the statewide standard of care. Q. Dr. Christman, did you have oc casion to review re co rd s pr

ovi de d to y ou b y my of fic e r eg ar ding P at ie nt H ? A. Yes, sir, I did. Q. What were your

opinions, Doctor, regarding the respondent’s treatment of and prescribing practices for thi s pa tie nt?-17- A. I felt it fell below the statewide standa rd of care. Q. Doctor, did you ar rive at any c onclusions or opinions regarding the respondent’s tre atment of and pre scr ib in g co nt rol led sub st anc es f or P ati ent I? A. I did . Bu t i n t hi s ca se, I thi nk i t’s clo se, but I can’t definitively sa

y 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, si r. I s aid th at I c an’ t t ell whe th er i t d id . I can’t be certain. Q. Dr. Christman, did you have oc casion to review record s provide d to y ou by our offi ce reg arding

Patient J? A. Yes, sir. Q. What were your

opinions or conclusions, Doctor, regarding the responde

nt’s treatment of and prescribing for Pat ien t J? A. The lack of appropriate evaluation and c ontinued prescriptions of large amounts of narcotics, I felt made the management of the case fe ll below the statewide standard of care. Q. Did y ou have o ccasion to review recor

ds provided to you by

our office on Patient Number 1? A. Yes, sir, I did. Q. What were

you r conclu sions or op inions regardi ng the r espon dent’ s trea tment of or p rescri bing 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 r

egarding Patient Number 2? A. Yes, sir, I did. Q. What were your

conclusions or opinions, Dr. Christman, regarding the respondent’ s treatment of or prescr ibing pr actice s for this p atient? 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 oc casion 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 proprie

ty of the responde

nt’s treatment of or presc ribing f or this pa tient? I felt that because of

the persistent headaches, additional evaluation by a specialist, perhaps a neurolog ist or pain

special ist, should

have be en sought instead of continued prescription of high doses of narcoti c analg esics. Q. Doctor, did y ou have o ccasion to review medica

l records provided to y ou by our office on behalf of Patient Number 4? A. Yes, sir, I did. Q. Doctor, what were y our conclusions or opinions regarding the trea

tment of or the prescribing practices of the resp ondent re

lating to this patie nt? A. I felt that this case fell below the sta tewide standard of care. Q. Dr. Christman, have you ha d occasion to review records provided to y ou by my office related to Patient Number 5? A. Yes, sir, I did. Q. What were your

opinions, Doctor, regarding the responde nt’s trea tment of a

nd presc ribing f or this patient? A. This was a 37 yea r old woman with a history of a motor vehicle accident with chronic low back pa in. The physician, in the c hart, reported a diagnosis of multiple substance abuse on April 1988, and recommended drug rehabilitation on January of 1989. Nevertheless, beginning in Aug ust of 1991, she began prescribing Propoxyphe

ne and Valium, and did so for the next year. I thought that t he prac tice o f presc ribin g continual prescriptions of controlled substances to a patient with a know n problem of substa nce abu se fell-19- below the acceptable standard of ca re in the State of Tennessee. Q. Dr. Chris tman, did y ou have o ccasion

to re vi ew th e m ed ic al re co rd s p ro vi de d t o yo u b y my office on Patient 6? A. Yes, sir, I did. Q. What were

you r conclu sions or op inions regardi ng the r espon dent’ s trea tment of and prescr ibin g practic e for thispatient? A. I felt that the prescription pra ctice fell below the statewide standard of care. Q. Did you find that this practice, in y our opinion, violated the applicable statewide standard of car e? A. Yes, sir.

It is seen that the testimony of Dr. Christman wa s limited to the “statewide standard of care”, and “significantly

over prescribing.”

The words “statewidestandard of care” and “ove r prescribing” are not found in the quoted statute, the charges, or the “co n clusions 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 elsewhe re that th e acts and omissions of the petitioners constituted the degree of misconduct for which the statute authorizes discipline.

Inasmuch as the me mbers of the Boa rd were phy sicians, it is possible that they utilized the

ir
own expertise

in conclu ding th at the ac ts and omissions of respondents qualified as misconduct specified in the stat ute. Howe

ver, noth ing is cited or found in this record to indicate that such expert evaluation by the Boa

rd 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 expe rt testimony. The-20-

above quoted testimony of petitioners identifies shortcomings in their treatment of patients, but does notadmit that any of the

shortcom ings amounted to th at conduct describ ed in the s tatute 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 af firmed.

The decision of the Board and it’s affirmance by

the Trial Court are reversed and vac ated. All costs in this Court and in the Trial Court will be paid by the Respondent-Appellee. The cau se is remanded to the Trial Court for any necessary

concluding procedure.
REVERSED, VACATED AND REMANDED.

___________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR:

_____________________________ SAMUEL L . LEWIS, JUDGE
CONCURS IN SEPARATE OPINI ON WILL IAM C. KOCH, JR., JUDGE