IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

MAY 3, 2011 Session

RICHARD W. FELDMAN, M.D. v. TENNESSEE BOARD OF MEDICAL

EXAMINERS

Direct Appeal from the Chancery Court for Davidson County

No. 08-197-I Claudia C. Bonnyman, Chancellor

No. M2010-00831-COA-R3-CV - Filed June 27, 2011

This appeal arises out of disciplinary proceedings against a physician before the Tennessee

Board of Medical Examiners. The Board found the physician guilty of numerous statutory

and regulatory infractions, and it assessed a monetary penalty against the physician and

revoked his license for at least one year. The physician filed a petition for review in chancery

court, and the chancery court affirmed the decision of the Board. The physician appeals,

challenging the Board’s decision on numerous grounds. We affirm.

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

ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the Court, in which HOLLY M. KIRBY,

J., and J. STEVEN STAFFORD, J., joined.

Donald Capparella, Nashville, Tennessee, for the appellant, Richard W. Feldman, M.D.

Robert E. Cooper, Jr., Attorney General and Reporter, Sara E. Sedgwick, Senior Counsel,

Nashville, Tennessee, for the appellee, Tennessee Board of Medical Examiners
OPINION

I. FACTS & PROCEDURAL HISTORY

Richard W. Feldman, M.D. (“Dr. Feldman”) was licensed to practice medicine in

Tennessee in 1976. He practices under the business name “Doctors’ Diet Program.” In

2004, Dr. Feldman began advertising his practice via billboards, newspaper advertisements,

and two Internet websites. Dr. Feldman’s websites described him as “Tennessee’s most

experienced weight loss physician” and contained a heading which stated, “Tennessee’s #1

Diet Program.”

Dr. Feldman maintained a website called smallerclothes.com for advertising his diet

program, and he used a website called doctorsantiaging.com for advertising a procedure that

he performed called mesotherapy. Dr. Feldman’s mesotherapy website stated that

mesotherapy involved the injection of medications into a person’s skin to “melt fat cells,”

and his advertisements basically described mesotherapy as “Fat Melting Shots.” The website

claimed that the “liquefied fat” would be “either utilized as energy or simply excreted by the

body.” Dr. Feldman advertised that mesotherapy was effective for “spot weight reduction,”

cellulite reduction, and weight loss, among other things. He claimed that “One pound of fat

per week on average is lost – equal to four sticks of butter!” He further claimed that a

“typical patient” could lose up to two dress sizes with ten treatments, and that patients had

“lost up to four inches on their waist, hips, and thighs.” Dr. Feldman’s website described

mesotherapy as “safe and effective” with “no significantside effects,” and itstated that “[t]he

Mesotherapy medications . . . have been Food and Drug Administration (FDA)-approved.”

On June 2, 2006, a “Notice of Charges” was filed against Dr. Feldman before the

Tennessee Board of Medical Examiners by the Tennessee Department of Health, Division

of Health Related Boards (“the State”). The Notice of Charges detailed various statements

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and claims made in Dr. Feldman’s advertisements. It then alleged that there have been no

well designed clinical studies to suggest that a patient can achieve meaningful weight loss

or reduce waist circumference or dress size by undergoing mesotherapy. The Notice of

Charges further alleged that there have been no safety studies, no meaningful efficacy or

outcome studies, and no randomized prospective blinded clinical trials of mesotherapy.

Based on these allegations, the State’s Notice of Charges alleged that Dr. Feldman had

violated numerous provisions of the Tennessee Medical Examiners Practice Act, including

The Tennessee Board of Medical Examiners is responsible for conducting disciplinary hearings, 1

Tenn. Code Ann. § 63-6-101(a)(3), and disciplining licensees. Tenn. Code Ann. § 63-6-214(a). All

proceedings for disciplinary action against a licensee are conducted in accordance with the Uniform

Administrative Procedures Act. Tenn. Code. Ann. § 63-6-216.

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several subsections of Tennessee Code Annotated section 63-6-214(b): unprofessional,

dishonorable, or unethical conduct; making false statements or representations or being guilty

of fraud or deceit in the practice of medicine; willful violation of the rules and regulations

promulgated by the board of medical examiners regarding advertising by practitioners;

violation of the provisions of Tennessee Code Annotated Title 63, Chapter 6, or lawful

orders of the board issued pursuant thereto; gross or repeated malpractice or ignorance,

negligence, or incompetence in the course of medical practice; and dispensing any drug not

in the course of professional practice or not in good faith or not to cure an ailment or when

medically necessary. The Notice of Charges further alleged that Dr. Feldman had violated

several regulations adopted by the board of medical examiners regarding advertising by

licensees, by claiming that his services were professionally superior to others or that one

licensee was better than another when superiority of services could not be substantiated; by

using data or information based on past performances to predict future services, creating an

unjustified expectation about results; by misrepresenting material facts; by misrepresenting

a licensee’s credentials, training, experience, or ability; and by communicating in a manner

to create unjustified expectations concerning potential results of treatments. See Tenn.

Comp. R. & Regs. § 0880-2-.13(4).

Contested case proceedings took place before the Board of Medical Examiners (“the

Board”) over the course of three days, and the parties presented the testimony of several

expert witnesses. The Board ultimately concluded that Dr. Feldman had violated all of the

aforementioned statutes and regulations with the exception of the malpractice charge and the

charge of dispensing medication when not medically necessary. The Board determined that

Dr. Feldman’s license to practice medicine in the State of Tennessee should be revoked for

a period of not less than one year, and that he should pay a $100 penalty for each of the 413

patients upon whom he had performed mesotherapy, for a total of $41,300, in addition to the

costs of prosecution of the matter.

Dr. Feldman then filed a petition for judicial review in the chancery court of Davidson

County in accordance with Tennessee Code Annotated section 4-5-322. He alleged that the

administrative law judge (“ALJ”) utilized unlawful procedures by improperly excluding

certain testimony from his expert witnesses and by improperly admitting evidence of his

previous disciplinary actions before the Board. Dr. Feldman further alleged that the Board’s

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decision was arbitrary and capricious and unsupported by substantial and material evidence.

After reviewing the administrative record, the chancery court affirmed the Board’s final

“It is the duty of the administrative judge or hearing officer to preside at the hearing, rule on 2

questions of the admissibility of evidence, swear witnesses, advise the agency members as to the law of the

case, and ensure that the proceedings are carried out in accordance with the provisions of this chapter, other

applicable law and the rules of the respective agency.” Tenn. Code Ann. § 4-5-301(b).

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order, finding that the ALJ rightly excluded the testimony from Dr. Feldman’s experts, that

consideration of Dr. Feldman’s disciplinary history was not arbitrary or improper, that

substantial and material evidence supported the Board’s findings regarding the violations,

and that the penalties imposed were not arbitrary or capricious. Dr. Feldman then appealed

to this Court.

II. ISSUES PRESENTED

Dr. Feldman presents the following issues, slightly restated, for review on appeal:

1. Whether the Board’s finding that Dr. Feldman committed violations by engaging in

false and misleading advertising is unsupported by substantial and material evidence

in light of the entire record;

2. Whether the ALJ abused her discretion by excluding relevant testimony from Dr.

Feldman’s experts because they were not familiar with the standards in Tennessee for

fraud, misrepresentation, and medical advertising;

3. Whether the ALJ abused her discretion by excluding testimony from Dr. Feldman’s

experts on the basis of the contiguous state licensure requirement in Tennessee Code

Annotated section 29-26-115; and

4. Whether the Board unlawfully disregarded the ALJ’s instructions regarding the

consideration of prior disciplinary charges and effectively “re-punished” Dr. Feldman

for the past offenses.

For the following reasons, we affirm the decision of the chancery court and that of the Board.

III. STANDARD OF REVIEW

“Judicial review of decisions of administrative agencies, when those agencies are

acting within their area of specialized knowledge, experience, and expertise, is governed by

the narrow standard contained in Tenn. Code Ann. § 4-5-322(h) rather than the broad

standard of review used in other civil appeals.” Roy v. Tenn. Bd. of Med. Examiners, 310

S.W.3d 360, 363 (Tenn. Ct. App. 2009). Pursuant to Tennessee Code Annotated section 4-5-

322(h), this Court may only reverse or modify the Board’s decision if Dr. Feldman’s rights

were prejudiced because the Board’s findings, inferences, conclusions or decisions were:

(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

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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.

In addition, “[n]o 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(i).

IV. DISCUSSION

A. Evidence before the Board

First, we will address Dr. Feldman’s contention that the Board’s findings of violations

based on false and misleading advertising were not supported by substantial and material

evidence in light of the entire record.

During Dr. Feldman’s testimony before the Board, he testified that he claimed in his

advertisements to be “Tennessee’s most experienced weight loss physician” and to have

“Tennessee’s #1 Diet Program” due to the length of time that he had been practicing, the

number of patients that he had treated, and the fact that other doctors asked him for advice

and referred to him as “the guru.” Dr. Feldman testified that he started practicing in the area

of weight loss in 1983, and that in 1995, he “started coming out of family practice and

directing [his] energies more towards weight loss treatment.” Dr. Feldman said that he had

counted his patient records and determined that he had “treated and/or supervised” 40,000

patients. Dr. Feldman said that he did not claim that he was the most experienced weight loss

physician in Tennessee until after the death of one of his colleagues who had been practicing

since 1947. He said he would concede that he was not the most experienced weight loss

physician in Tennessee “if somebody came forward and showed me that they had more

patients they treated for obesity.”

Dr. Feldman described mesotherapy as the subcutaneous injection of a solution into

areas of “spot fat that needed to be reduced,” such as the “love handles” or “a double chin,”

whereby the injected solution causes damage, or necrolysis, to the fat cells. According to Dr.

Feldman’s testimony, after mesotherapy, the weight of the fat in the injected area would

either be “dissipated out in the rest of your body where it’s not as noticeable,” or, if the

patient was also following a ketogenic diet, the weight would be secreted from the body. In

other words, he said, “the weight is disappearing out of that spot.” Dr. Feldman said the

average mesotherapy patient would be injected with five to ten syringes of solution, with

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twenty to thirty injections per syringe. He testified that he had performed about 700

mesotherapy procedures on approximately 413 patients.

Dr. Feldman admitted that mesotherapy was “not for overall weight [loss]” and that

it would not cause generalized weight loss. However, he testified that he had never claimed

or told people that mesotherapy would result in significant weight loss or total body weight

loss, and that he had never used mesotherapy for overall weight loss. Dr. Feldman pointed

out that his mesotherapy advertisements “never said general weight reduction” and did not

state that weight would be “gone from the body” after mesotherapy. Nevertheless, Dr.

Feldman testified that weight would be gone from the body if the patient was following a

ketogenic diet. Dr. Feldman explained that the way to achieve overall weight loss was

through diet, behavior modification, and exercise. He said that he used mesotherapy strictly

for “spot fat reduction,” also known as “spot weight reduction,” and in less than one percent

of his patients, he used it to treat cellulite. He explained “spot weight loss” as “the weight

loss you might achieve in your chin” or another treated area. Dr. Feldman also claimed that

mesotherapy would help patients to lose weight by providing them with motivation to follow

their diet, but he again insisted that he always put his patients on a ketogenic diet in order for

them to achieve overall weight loss.

Dr. Feldman testified that he advertised mesotherapy with the phrase “fat melting

shots” because the public would not understand if his advertisements referred to “injections

in the subcutaneous areas to help necrotize the fat so that macrophages can perform

phagocytosis.” He claimed that the phrase “melting the fat” was an accurate way of

describing mesotherapy in layman’s terms. Dr. Feldman suggested that physicians routinely

break down medical explanations to patients by picking out the best terms, not to mislead

them, but to help them visualize. He said that physicians are taught to provide these simple

explanations in medical school. Dr. Feldman insisted that the claim on his mesotherapy

website about losing one pound of fat per week, equal to four sticks of butter, was an

accurate statement regarding the results to be obtained from spot fat reduction. He said, “The

reason for the four sticks of butter, once again, is for a layperson to visualize.” Dr. Feldman

also insisted that his claim about losing two dress sizes with ten treatments was accurate.

When asked about the accuracy of his claim that mesotherapy patients could lose two to six

inches in their saddle bags, love handles, hips, thighs, waist, back fat, and chin, Dr. Feldman

again insisted that this was an accurate statement. However, when asked to elaborate, Dr.

Feldman clarified that such results could be achieved with the ketogenic diet that he required

his mesotherapy patients to follow. Dr. Feldman acknowledged that the claim about losing

inches was made on his mesotherapy website under a heading entitled, “Mesotherapy.” He

was then asked to point out where his website mentioned the diet that would allegedly

achieve the loss of inches, and he pointed to the phrase “Doctors Diet Program,” which was

the name of his practice. He said that any reasonable person looking at his website should

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understand that because it comes from “Doctors Diet Program,” there would also be a diet

administered by a doctor.

Dr. Feldman admitted that the claims used in his advertising had not been approved

by the FDA, and that the combination of drugs that he used in mesotherapy had not received

FDA approval. When asked who had established that mesotherapy was “safe,” as claimed

in his ads, Dr. Feldman generally mentioned a study that an “expert” plastic surgeon in

Colorado had published regarding “safety methods that she studied.” Dr. Feldman

acknowledged that the informed consent and disclaimer form he required his mesotherapy

patients to sign stated that “the procedure is a relatively new procedure and that little is

known about its long term safety[.]” It stated that side effects could include “pain,

discomfort, tingling, burning, swelling, bruising, all of which may be temporary o[r] could

possibly be permanent” and “might be difficult to tolerate.” The disclaimer form also stated

that “there are numerous risks and complications, both known and unknown, connected with

the procedure. These can include, but not be limited to: infection that can be localized or

could spread throughout the body, hemorrhage or bleeding, delayed healing, under or over

correction and other risks that are not known at this time.” Although Dr. Feldman’s website

stated that “[t]he Mesotherapy medications . . . have been Food and Drug Administration

(FDA)-approved,” his disclaimer form stated that “(PPC) injections are NOT approved by

the Federal Drug Administration (FDA) [sic] for ANY type of human benefit.”

Regarding the allegation that there had been no double blind studies of mesotherapy,

Dr. Feldman testified that one of his colleagues conducted a double blind study that had been

published. Upon further questioning, however, Dr. Feldman clarified that there was no

control group used in the study and that it simply compared the use of mesotherapy by

injecting a combination of two drugs with the use of one drug alone. He said, “Everybody

knew it worked. They just wanted to see which part worked better . . . .”

The Board heard testimony from numerous expert witnesses as well. The Board heard

live testimony from Kevin Niswender, M.D., Ph.D., on behalf of the State. Dr. Niswender

was licensed to practice medicine in Tennessee, he held a Ph.D. in physiology and

metabolism, and he served as a faculty member in the Department of Medicine at Vanderbilt

University in the Division of Diabetes, Endocrinology, and Metabolism. Dr. Niswender

testified that he had never performed mesotherapy or seen it performed. However, he had

reviewed documents and performed a literature search concerning the medical feasibility of

using mesotherapy for weight loss. He testified that to the best of his knowledge, he had read

“the entirety of the literature that’s been published in the public domain” regarding

mesotherapy, although he acknowledged that the published literature on mesotherapy was

very limited. Dr. Niswender testified that he was unable to find any evidence in favor of the

hypothesis that subcutaneous injections of mesotherapy could induce weight loss. He said

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that there was no evidence to support the efficacy of mesotherapy for weight loss or for

cellulite reduction, and that the implication that patients could experience meaningful weight

loss from subcutaneous injections into fat was not consistent with current scientific

understanding. He testified that the standard of care for weight loss would be a prescribed

diet, and that there was no evidence that the addition of mesotherapy to the diet would result

in any additional benefit. When asked about Dr. Feldman’s use of mesotherapy for “spot

weight reduction,” Dr. Niswender testified that the concept of spot weight reduction was “not

a medically relevant term that I’m familiar with or that I could even define for you.” Dr.

Niswender explained that if mesotherapy was injected into an area such as the chin, there

would not necessarily be any weight loss as a result.

Regarding Dr. Feldman’s advertising claim that mesotherapy could “melt fat,” Dr.

Niswender explained that the mechanism of mesotherapy is actually necrosisin the fat tissue.

He said, “This is not melting of the fat, which would imply a high temperature such that the

fat became soluble. The biosalts actually induce tissue damage and necrosis of the fat

tissue.” Thus, Dr. Niswender stated that the phrase “fat melting shots” was not a reasonable

statement from a medical weight loss perspective. Dr. Niswender testified that it was

certainly conceivable that injections of mesotherapy could cause damage to the tissue, and

that there was the theoretical potential for adverse reactions to fat necrosis due to the tissue

damage.

The Board also heard affidavit and deposition testimony from Gordon Lee Jensen,

M.D., Ph.D., who testified on behalf of the State. Dr. Jensen was licensed to practice

medicine in Tennessee and held his doctoral degree in nutritional biochemistry, and he served

as the Director of the Vanderbilt Center for Human Nutrition. Dr.Jensen testified that he had

never performed mesotherapy and that he was not aware of any respected physicians who did

perform it. He stated that he had performed a comprehensive review of the published

medical literature regarding mesotherapy for weight reduction, and that hisresearch revealed

no safety studies, no meaningful efficacy or outcome studies, and no randomized prospective

blinded clinical trials. Dr. Jensen further stated that he was unable to identify any well

designed clinical studies that would suggest that patients could achieve or maintain

meaningful weight loss or reduce their waist circumference or dress size with mesotherapy.

Dr. Jensen stated that Dr. Feldman had specifically marketed mesotherapy as weight loss

intervention without disclosing that the weight reduction he claimed to be possible would

require a multi-month diet and exercise program. He testified that it was not appropriate to

perform mesotherapy as part of a weight loss program. Dr. Jensen also testified that he was

not aware of a medical term known as “spot fat reduction” as part of standard weight

reduction therapy.

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Dr. Feldman presented the deposition testimony of Phillip R. Langsdon, M.D., who

was licensed to practice medicine in Tennessee and Arkansas and served as chief of the

Division of Facial Plastic Surgery at the University of Tennessee Health Science Center in

Memphis. Dr. Langsdon testified that he had attended a training session in the field of

mesotherapy, read much of the available literature on the subject, and undergone

mesotherapy treatment himself. He said he knew of several other physicians in the Memphis

area who had performed mesotherapy. Dr. Langsdon stated his opinion that mesotherapy was

a safe and effective treatment in many patients for the reduction of fat in those areas to which

it is applied. However, he said that he had no experience with the use of mesotherapy for

uses other than “spot fat reduction” and that he did not feel comfortable rendering an opinion

regarding its safety or efficacy for other uses. Dr. Langsdon said that he had reviewed Dr.

Feldman’s advertisements and found them to be “okay.”

Dr. Feldman also presented the deposition testimony of Timothy Boehm, M.D., who

was licensed to practice medicine in Arkansas. Dr. Boehm testified that mesotherapy was

widely available and helpful for spot weight reduction, and that it could have a favorable

cosmetic effect on local problems with fat or cellulite. However, he clarified that “it’s not

a therapy for total weight reduction,” and that diet and exercise programs were appropriate

for that purpose. Dr. Boehm explained that if a 200-pound person received mesotherapy for

spot weight reduction on his double chin, there would be a cosmetic change in the amount

of fat in the area, but there would not be any significant difference in the patient’s total

weight in pounds on the scale, unless he was dieting. He said that the issue of weight loss

would depend on whether the fat was excreted out of the body or simply deposited at another

source. Dr. Boehm also acknowledged that any evidence that such fat passes out of the body

is not scientifically conclusive at this point.

Dr. Boehm testified that the phrase “fat melting shots” was an oversimplification

designed to appeal to patients. He conceded that it was not the most accurate or scientific

way to describe mesotherapy but noted that advertisements have to be understandable.

Regarding the statement on Dr. Feldman’s website that mesotherapy was being used

everyday by physicians around the world for a variety of purposes, including overall weight

loss, spot weight loss, spot weight reduction, hair loss, scar revision, improvement of skin

quality, and wrinkle reduction, Dr. Boehm testified that this statement was “overly

optimistic” and “surely something that deserved editing.” Another claim on Dr. Feldman’s

website was that healthy adults ages 18 to 75 were candidates for mesotherapy “for weight

loss, spot weight reduction, and cellulite reduction.” Dr. Boehm testified that this statement

was ambiguous, and that Dr. Feldman should have differentiated between total weight loss

and localized weight loss orsimply referred to mesotherapy’s use for “spot weight reduction”

without mentioning cellulite reduction.

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Next, Dr. Feldman presented the deposition testimony of Roman A. Chubaty, M.D.,

who was licensed to practice medicine in Arizona and the province of British Columbia in

Canada. He testified that the nature of his practice was aesthetic medicine, which he

described as “the practice of making people feel better about themselves so they can look

better.” He said his practice included such things as mesotherapy and Botox fillers, and that

he had been practicing mesotherapy for about four years. Dr. Chubaty considered himself

to be the top North American expert in mesotherapy. He testified that he trains other

physicians in the practice of mesotherapy, and that he had trained about ten Tennessee

physicians on its use. Dr. Chubaty was asked whether mesotherapy is a therapy for weight

loss, to which he responded, “It’s a therapy for spot fat reduction.” He explained that

mesotherapy could be used for weight loss if the patients were on a diet in order to help them

achieve “more firm contour results” or encourage them to stick with a diet program. Dr.

Chubaty testified that he used mesotherapy in conjunction with a diet, but that he did not use

mesotherapy for weight loss. He also testified that mesotherapy was an effective treatment

for cellulite.

Dr. Chubaty testified that it was incorrect to state that there had been no safety studies,

no randomized prospective blinded clinical trials, and no well designed clinical studies to

suggest that a patient can reduce waist or breast size with mesotherapy, although he admitted

that there were no well designed clinical studies to suggest that mesotherapy causes

meaningful weight loss. Dr. Chubaty testified that he had reviewed Dr. Feldman’s

advertisements and the Notice of Charges filed against Dr. Feldman regarding the statements

made in the advertisements, and in his opinion, the claims made by Dr. Feldman were not

fraudulent or misleading and did not constitute false statements or representations. However,

regarding Dr. Feldman’s specific advertising claim that an average patient would lose one

pound of fat per week, Dr. Chubaty said that while it might be “possible” for a patient to lose

one pound per week with mesotherapy, those would not be the results for an “average”

patient.

Finally, Dr. Feldman presented the deposition testimony of Adam Michael Rotunda,

M.D., who was licensed to practice medicine in California. Dr. Rotunda opined that

mesotherapy is medically efficacious for the purpose of reducing localized fat tissue.

However, he said that he could not generalize and say that mesotherapy resultsin weight loss.

Dr. Rotunda said that the patient would have to be under some negative energy balance

condition for weight loss to occur. Dr. Rotunda was board-certified in the field of

dermatology, and he stated that he did not have expertise in medical weight loss. He also

said that he did not use mesotherapy in practice for weight loss. When asked what would

happen to the targeted fat if the mesotherapy patient was also following a ketogenic diet, Dr.

Rotunda said that his “best guess” would be that the fat “would probably be redistributed in

the body and a portion of that would be excreted.”

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Dr. Rotunda opined that mesotherapy is safe with proper patient selection and when

the dosage reported in the literature is given. Dr. Rotunda testified that he had seen twenty

to twenty-five peer-reviewed papers regarding mesotherapy that contained “safety

components.” He said there were two relatively recent double blinded reports on

mesotherapy, one of which had been “e-published,” and the other was still in the peer review

process. Dr. Rotunda stated that to his knowledge, there were no peer-reviewed publications

looking at mesotherapy and cellulite, but he noted that some physicians were using

mesotherapy to reduce cellulite.

Dr. Rotunda testified that he had reviewed Dr. Feldman’s advertisements, and he

stated his opinion that the ads did not make any false promises. With regard to the phrase

“fat melting shots,” Dr. Rotunda explained that “melting” was a lay term used to make the

ads more understandable because patients probably would not understand terms like

“lipolysis, ablation, [or] necrosis,” which would truly describe the mechanism of

mesotherapy. He acknowledged there are “very few procedures in medicine which melt, per

se.” As for the other advertising claims, Dr. Rotunda testified that losing two dress sizes

over the course of ten mesotherapy treatments would be a reasonable expectation if the

patient was also following a ketogenic diet. Dr. Rotunda also stated that an average person

could lose one pound of weight per week if mesotherapy were used in combination with a

weight loss diet. He explained that it is the diet prescribed by Dr. Feldman that results in

weight loss in his patients rather than the use of mesotherapy. Dr. Rotunda testified that

comparing a one-pound weight loss to four sticks of butter was a reasonable illustration for

a lay person. He agreed with the suggestion that the lay public does not appreciate medical

terms, so the idea is to express things in everyday language.

The Board made the following findings of fact in this case:

1. Respondent has been at all times pertinent hereto licensed by the Board

as a medical doctor in the State of Tennessee[.]

2. Respondent claims to be “Tennessee’s most experience[d] weight loss

physician” and to have “served” over 40,000 patients.

3. Between June of 2004 and March of 2006, Respondent has advertised

and provided treatment using mesotherapy in a process now referred to

as lipodissolve.

4. Respondent utilized mesotherapy for the purpose of weight reduction

to four hundred thirteen patients.

5. Respondent advertised that he was utilizing mesotherapy for the

purpose of weight reduction.

6. Respondent advertised his use of mesotherapy as a treatment for

“cellulite reduction, spot weight reduction, and skin rejuvenation.”

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7. Respondent advertised that “[m]esotherapy is by far the mostsuccessful

of all current cellulite treatments available today.”

8. Respondent advertised that mesotherapy was “safe.”

9. Respondent advertised that mesotherapy “dissolves fat gradually.”

10. Respondent advertised that mesotherapy “reduces and even removes

cellulite.”

11. Respondent advertised that mesotherapy results will be “one pound of

fat per week on average is lost – equal to four sticks of butter!”

12. Respondent advertised that mesotherapy “permanently eliminates

dimpling and misshapen fat under the skin.”

13. Respondent advertised that “[a] typical patient can lose up to two dress

sizes with ten treatments.”

14. Respondent advertised that the medications used in mesotherapy “melt

the fat beneath the skin and shrink the fat cells in the scarpa’s fascia

layer. The fat dissolves and, as occurs when fat is broken down during

typical weight loss, is carried through the bloodstream and excreted by

[the] kidneys and bowel. The medications used in mesotherapy destroy

the connective tissue bands and melt the trapped fat, creating a smooth,

dimple-free appearance.”

15. Respondent advertised on his website, doctorsantiaging.com, from at

least September 29, 2004 until on or about May 24, 2005, that

“mesotherapy also has a variety of medicinal uses. Treatments can

benefit those suffering from muscle spasms, stress, insomnia, carpal

tunnel syndrome, fibromyalgia, infections, RSD (Reflex sympathetic

dystrophy), and osteoarthritis, among other” uses. Respondent’s

website currently states that mesotherapy “is a non-surgical injection

technique with a broad range of applications.”

16. Mesotherapy now referred to aslipodissolve is not currently recognized

as the standard of care for weight reduction.

17. There have been no randomized prospective blinded clinical trials of

mesotherapy[.]

18. There have been no meaningful efficacy/outcome studies of

mesotherapy[.]

19. There have been no safety studies of mesotherapy[.]

20. There have been no well designed clinical studies that suggest that

meaningful weight loss or reduction in waist circumference or dress

size can be achieved or maintained by mesotherapy[.]

On appeal, Dr. Feldman first challenges what we find to be a technical aspect of the

Board’s order. After the Board set forth the twenty findings of fact listed above in Section

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I of its order, the Board stated that “[t]he facts in Section I of this Final Order are sufficient

to establish violations by the Respondent of the following statutes or rules . . . .” The order

then stated that “[t]he facts in paragraphs 2 through 16, supra, constitute a violation of” each

of the specific statutes and regulations. Dr. Feldman argues on appeal that because this

section of the order did not specifically incorporate the findings of fact numbered 17 through

20, this “necessarily means several other findings of fact are unsupported by the record.” For

example, he argues that factual finding number 8, which stated that Dr. Feldman advertised

mesotherapy as “safe,” is now unsupported by the record because “the only finding of fact

to suggest that Dr. Feldman’s claim of safety was false or misleading was Finding No. 17 not

relied upon by the Panel.” We disagree with this assertion and refuse to give effect to form

over substance in reviewing the Board’s order. The Board made twenty specific findings of

fact and stated that those facts established the violations committed by Dr. Feldman. We will

not simply ignore the last four factual findings, as if they were never made, simply because

the Board inexplicably failed to incorporate them into the subsequent portion of its order.

Now, we will turn to Dr. Feldman’s substantive challenges to the Board’s factual

findings. In reviewing the evidence, we keep in mind that the substantial and material

evidence standard requires something less than a preponderance of the evidence but more

than a scintilla or glimmer. Dickson v. City of Memphis Civil Serv. Comm'n, 194 S.W.3d

457, 464 (Tenn. Ct. App. 2005); Mosley v. Tenn. Dep’t of Commerce & Ins., 167 S.W.3d

308, 316 (Tenn. Ct. App. 2004). Courts may not reweigh the evidence or substitute their

judgment for the Board’s, even if the evidence could support a conclusion different from the

one reached by the Board. Miller v. Civil Serv. Comm'n of Metropolitan Gov’t of Nashville

& Davidson County, 271 S.W.3d 659, 665 (Tenn. Ct. App. 2008). “We may reject the

Board’s decision only if a reasonable person would necessarily reach a different conclusion

based on the evidence. It is not enough that the facts could support a different conclusion.”

Davis v. Shelby County Sheriff's Dep’t, 278 S.W.3d 256, 265 (Tenn. 2009) (citing Martin

v. Sizemore, 78 S.W.3d 249, 276 (Tenn. Ct. App. 2001)). In other words, we “review the

record for 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.” Miller v. Tennessee Bd. of Nursing, 256 S.W.3d 225, 229 (Tenn. Ct. App.

2007) (citing Clay County Manor, Inc. v. State, 849 S.W.2d 755, 759 (Tenn. 1993); S. Ry.

Co. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn. 1984); Papachristou v. Univ.

of Tenn., 29 S.W.3d 487, 490 (Tenn. Ct. App. 2000)).

On appeal, Dr. Feldman argues that there is a “lack of evidence” to support many of

the Board’s findings of fact. However, Dr. Feldman does not dispute that he made each of

the aforementioned statements in his advertising. Instead, he basically argues that such

claims were not false or deceptive, and therefore, they should not provide a basis for finding

him in violation of the various statutes and regulations cited by the Board. Having carefully

-13-
reviewed the entire record, we find that substantial and material evidence supports each of

the Board’s factual findings listed above, and we also find a reasonably sound basis for the

Board’s conclusion that Dr. Feldman violated each of the cited statutes and regulations. All

of the experts basically agreed, and Dr. Feldman himself conceded, that mesotherapy does

not cause generalized weight loss. Although Dr. Feldman claimed that “the weight is

disappearing out of that spot,” he testified that the weight would either be “dissipated out in

the rest of your body where it’s not as noticeable,” or, if the patient was also following a

ketogenic diet, the weight would be secreted from the body. Dr. Feldman’s advertisements

simply claimed in many instances that mesotherapy would achieve “weight loss.” For

example, his website stated, “Repair and restore your face and body with injections under the

skin for effective cellulite reduction, weight loss, and facial rejuvenation.” It described the

mesotherapy medications as “ingredients for cellulite reduction, weight loss and body

sculpting.” The website further stated that healthy adults ages 18 to 75 were “candidates for

Mesotherapy for weight loss, spot weight reduction, and cellulite reduction.” It further

claimed that mesotherapy was being used around the world for “a variety of purposes,

including overall weight loss, spot weight loss, spot weight reduction,” and other uses. Dr.

Feldman’s website even claimed that mesotherapy patients would lose an average of one

pound per week, or two dress sizes with ten treatments. From our review of the record, Dr.

Feldman’s mesotherapy website did not inform readers that the weight loss he described

could only be achieved with a diet program that is separate and apart from mesotherapy. Dr.

Feldman admitted that he advertised mesotherapy on one website and used a separate website

“for the diet program.” He also described mesotherapy as safe and stated that the

mesotherapy medications were FDA-approved, when he later admitted that the FDA had not

approved the combination of medications, and Dr. Feldman’s own consent form stated that

little is known about the long term safety of mesotherapy and that there were numerous risks,

complications, and side effects, both known and unknown. In sum, despite Dr. Feldman’s

contention that the Board’s decision lacked evidentiary support, we find it is supported by

“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.” Miller,

256 S.W.3d at 229.

We note that Dr. Feldman specifically attacks the Board’s finding that he advertised

and used mesotherapy “for the purpose of weight reduction.” Dr. Feldman argues that this

was error because he testified that he used mesotherapy only for “spot weight reduction” and

not for overall weight reduction. We note that the Board’s finding does not specify whether

it was referring to spot weight reduction or overall weight reduction. Because Dr. Feldman

clearly advertised the use of mesotherapy simply for “weight loss” purposes, without

clarification, we cannot say that the Board erred in its finding that Dr. Feldman advertised

and used mesotherapy simply for “weight reduction.”

-14-
Dr. Feldman also argues that the testimony of Drs. Niswender and Jensen, who

testified on behalf of the State, should have been given little weight because they had never

performed mesotherapy, and they had only researched the issue. However, Dr. Niswender

testified live before the Board, and we give great weight to an administrative body’s

credibility determinations when it has conducted a hearing and evaluated witnesses as they

testified. City of Memphis v. Civil Service Comm'n of City of Memphis, 238 S.W.3d 238,

243 (Tenn. Ct. App. 2007). In addition, we note that Dr. Niswender was licensed to practice

medicine in Tennessee, held a Ph.D. in physiology and metabolism, and served as a faculty

member in the Department of Medicine at Vanderbilt University in the Division of Diabetes,

Endocrinology, and Metabolism. Dr.Jensen waslicensed to practice medicine in Tennessee,

held a doctoral degree in nutritional biochemistry, and served as the Director of the

Vanderbilt Center for Human Nutrition. As such, we are unable to conclude that the Board

erred in crediting at least portions of the testimony of these highly trained physicians.

Finally, we note that we find Dr. Feldman’s argument simply unconvincing. Because Drs.

Niswender and Jensen were of the opinion that mesotherapy is not an accepted or appropriate

treatment, it is obvious that these physicians would not regularly perform mesotherapy on

their patients. Notwithstanding their lack of personal experience practicing mesotherapy,

however, we conclude that Drs. Niswender and Jensen demonstrated a sufficient basis of

knowledge for their opinions on the issue.

Dr. Feldman also challengesthe Board’sfactual findingsregarding his advertisements

of mesotherapy for the treatment of cellulite. For example, the Board found that Dr. Feldman

advertised that mesotherapy “is by far the most successful of all current cellulite treatments

available today,” and he claimed that it “permanently eliminates dimpling and misshapen fat

under the skin.” Dr. Feldman argues on appeal that “no state witness provided any

testimony” to suggest that his advertisements about the use of mesotherapy for cellulite were

false or misleading. However, Dr. Niswender did testify that he had found no evidence to

support the hypothesis that mesotherapy reduces cellulite. In addition, one of Dr. Feldman’s

own experts, Dr. Rotunda, testified that to his knowledge, there were no peer-reviewed

publications looking at mesotherapy and cellulite. When asked if mesotherapy is a

permanent solution for cellulite, Dr. Chubaty testified that “at the time it’s a permanent

destruction of the fat cell,” but he suggested that the cellulite would return with age, or if the

person gained weight. We find that this evidence provides a reasonably sound basis for the

Board’s conclusion that Dr. Feldman’s claims regarding cellulite were deceptive.

Dr. Feldman next challenges the Board’s finding regarding his claim to be

“Tennessee’s most experienced weight loss physician,” pointing out that there was no proof

that another doctor had treated more patients or was more experienced. We find that such

proof was not necessary, however, as the Board’s regulation states that it is unethical and

unprofessional conduct to “convey the message that one licensee is better than another when

-15-
superiority of services, personnel, materials or equipment cannot be substantiated.” Tenn.

Comp. R. & Regs. § 0880-02-.13(4)(a) (emphasis added). From our reading of the

regulation, a violation occurs when a licensee makes a claim regarding superiority that cannot

be substantiated, and we find that Dr. Feldman did not substantiate his advertising claim

simply by testifying that he had practiced in weight loss since 1983 and served 40,000

patients. These facts, standing alone, do not demonstrate that he is the most experienced

weight loss physician in Tennessee. Thus, we find substantial and material evidence to

support the Board’s finding of fact regarding this issue.

Finally, Dr. Feldman challenges the Board’s order because one of the factual findings

stated that his website “currently states” a certain description regarding mesotherapy,

whereas the other factual findings used the term “advertised,” in the past tense. Dr. Feldman

argues that the undisputed proof showed that he took his website down not long after the

Notice of Charges was filed against him in June of 2006, so that it was error for the Board

to find that his website currently stated anything at the time of the entry of its order.

However, we cannot say that this single misstatement affected the merits of the Board’s

decision. Under the UAPA, “[n]o 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(i).

In sum, we reject each of Dr. Feldman’s arguments challenging the sufficiency of the

evidence before the Board, and we find substantial and material evidence to support the

Board’s decision.

B. Exclusion of Testimony

1. Testimony regarding Dr. Feldman’s Advertising

Next, we will address Dr. Feldman’s contention that the ALJ abused her discretion

by excluding testimony from two of Dr. Feldman’s experts because they were not familiar

with the standards for fraud, misrepresentation, or medical advertising in Tennessee. Dr.

3

Although the UAPA does not clearly specify the standard to be used to review decisions regarding 3

the admission or exclusion of evidence, we have previously determined that they should be reviewed using

the same standard used to review similar decisions by trial judges – the abuse of discretion standard. See

Tenn. Dep’t of Health v. Frisbee, No. 01A01-9511-CH-00540, 1998 WL 4718, at *2 (Tenn. Ct. App. M.S.

Jan. 9, 1998). “The “abuse of discretion” standard of review implicitly recognizes the existence of a range

of permissible judicial decisions and isintended to be a review constraining concept that implies less intense

appellate review and, therefore, less likelihood of reversal.” Id. (citing BIF v. Service Constr. Co., App No.

87-136-II, 1988 WL 72409, at *2 (Tenn. Ct. App. July 13, 1988)). We will not overturn a discretionary

(continued...)

-16-
Feldman complains that the following deposition testimony from Dr. Chubaty was excluded:

Q. Do you feel that the advertising from a medical perspective is

misleading or inappropriate in any way?

Counsel for the State: Objection to inappropriate opinion.

Counsel for Dr. Feldman: You may answer.

A. I believe it uses lay terms to use the term “melting fat,” whereas

possibly emulsification of fat or dissolving may be too hard to grasp for

certain people. So that would be appropriate if you’re trying to capture

the general public, yes.

Q. Well, why not use medical terminology in such advertisements?

Counsel for the State: Again, object. Same objection.

Counsel for Dr. Feldman: You may answer.

A. Well, the lay public most of the time isn’t aware of what you’re trying

to convey to them unless you give it in more simple terms. . . . So such

a term as we’re going to inject something to emulsify your fat, they

wouldn’t understand, melt fat quicker than emulsify.

The State argued that this constituted improper opinion testimony because Dr. Chubaty

conceded that he had no expertise in the areas of medical ethics, fraud, misrepresentation,

or medical advertising in Tennessee, and the State claimed that it was up to the Board to

decide whether the advertising was “appropriate” pursuant to its regulations. In response,

counsel for Dr. Feldman argued that Dr. Chubaty should be permitted to testify about the

procedure of mesotherapy. The ALJ acknowledged that Dr. Chubaty possessed knowledge

about the procedure of mesotherapy, but she concluded that Dr. Chubaty was not simply

testifying about the science of the procedure in this line of questioning. Instead, she found

that he was testifying about whether he thought the advertising was “appropriate.” The ALJ

noted that advertising standards differ from state to state, and Dr. Chubaty practiced medicine

in Arizona. Ultimately, the ALJ stated that it was up to the Board to interpret and apply its

own rules, and she excluded the two questions and answers quoted above.

(...continued) 3

decision simply because we would not have made the same decision, but we may overturn the decision if it

rests on an inadequate evidentiary foundation or if it is contrary to the applicable legal principles. Id.

-17-
We find that it was not an abuse of the ALJ’s discretion to exclude this line of

questioning regarding whether Dr. Chubaty felt that Dr. Feldman’s advertisements were

appropriate, when he admitted that he had no expertise in the area of medical advertising in

Tennessee. Although the ALJ prohibited Dr. Feldman from reading these two questions and

answers from Dr. Chubaty’s deposition, he was not prevented from using other portions of

Dr. Chubaty’s testimony regarding the science of mesotherapy and the fact that mesotherapy

“kills” fat cells. In addition, the Board heard Dr. Chubaty’s testimony that he had reviewed

Dr. Feldman’s advertisements, including the claims that mesotherapy “dissolves fat

gradually” and “melt[s] the fat,” and Dr. Chubaty stated his opinion that these did not

constitute false, fraudulent, or misleading statements or representations. The Board also

heard lengthy testimony from Dr. Feldman himself regarding his decision to use the phrase

“fat melting shots” and his explanation regarding the public’s inability to understand more

scientific terms. Dr. Feldman also presented testimony from his other experts that basically

covered the information that was excluded from Dr. Chubaty’s deposition. Dr. Boehm

testified about the phrase “fat melting shots” being an oversimplification designed to appeal

to patients in an understandable way. Dr. Rotunda testified that he had reviewed Dr.

Feldman’s advertisements, and he opined that the ads did not make any false promises. With

regard to the phrase “fat melting shots,” Dr. Rotunda explained that “melting” was a lay term

used to make the ads more understandable because patients probably would not understand

terms like “lipolysis, ablation, [or] necrosis,” which would truly describe the mechanism of

mesotherapy. Dr. Rotunda also stated that the lay public does not appreciate medical terms,

so the idea is to express things in everyday language. The Board also heard Dr. Langsdon’s

testimony that he considered Dr. Feldman’s advertisements to be okay. In sum, we find that

the ALJ did not abuse her discretion in excluding the two questions and responses from Dr.

Chubaty’s deposition testimony, but in any event, we also conclude that the exclusion of this

evidence did not affect the merits of the Board’s decision. See Tenn. Code Ann. § 4-5-

322(i).

Next, Dr. Feldman claims that the ALJ erroneously excluded the following testimony

by Dr. Rotunda:

Q. I think that [Dr. Feldman] made reference to two sticks of butter in

some of his advertising. That a loss could be achieved comparable to

two sticks of butter in conjunction to ketogenic diet. I think with – four

sticks of butter would be one pound.

Would that be a reasonable – would that be a reasonable

illustration for the lay public?

A. I think so.

Q. From what you have told me, you say that the lay public does not

appreciate medical terms, but the idea is to express things in everyday

-18-
language that the lay public does understand?

A. Exactly.

Q. And would that be appropriate, in your opinion?

A. I think it is.

From our review of the record, however, the ALJ specifically ruled that the first two

questions and answers quoted above were admissible, and this portion of the deposition

testimony was in fact read into the record before the Board. The only portion of the quoted

testimony that was excluded by the ALJ was the last question regarding whether Dr. Rotunda

considered “that” to be appropriate, and his response, “I think it is.” Again, we find that the

ALJ did not abuse her discretion in excluding this testimony, and the exclusion of this

question and response did not affect the merits of the Board’s decision.

Finally, Dr. Feldman argues that the ALJ abused her discretion in granting the State’s

motion to exclude these portions of testimony and in denying his request for a continuance

due to the procedural posture of the case when the motions were heard. Dr. Feldman points

out that the motions were filed “shortly before the third day of trial” and heard “on the last

day of trial.” He contends that he was unfairly prejudiced by the ALJ’s “late ruling” in that

he was required to go forward “with what was left” of his proof “without any opportunity to

seek replacement proof.” Considering all of the facts and circumstances of this case,

however, we do not find that the ALJ abused her discretion or acted arbitrarily. It is true that

the State did not file its motion in limine regarding Dr. Rotunda’s testimony until January 16,

2008, which was after the first two days of the proceedings had taken place, and

approximately one week before the third and final day of the proceedings. However, Dr.

Rotunda’s deposition had just been taken, on behalf of Dr. Feldman, on December 19, 2007,

after the first two days of proceedings had occurred. Counsel for the State explained at a

4

hearing that occurred on January 16 that he would be filing the motion that day and that he

had not even received a copy of the December 19 deposition from the court reporter until the

previous Friday, January 11. Because the ALJ was going to be out of town, she indicated at

the January 16 hearing that the motion in limine would be heard the morning of the third day

of the proceedings, and counsel for Dr. Feldman did not object or express any problem with

that arrangement.

As for the State’s motion regarding Dr. Chubaty, it was originally filed on October

30, 2007, after the first day but prior to the second day of the proceedings. Dr. Feldman filed

a response on November 6, 2007. At the beginning of the second day of the proceedings, on

November 7, the ALJ indicated that she did not have a copy of the motion and response, but

The State had filed a motion to compel regarding the taking of Dr. Rotunda's deposition in August 4

of 2007. 

-19-
she said that she would like to get the issue settled and suggested that the attorneys could

explain their positions to her. After other matters were addressed, the issue was raised

again, and counsel for Dr. Feldman said that he had a copy of the motion and response for

the ALJ to review. However, he then indicated that it was unlikely that he would be

introducing Dr. Chubaty’s deposition on that day, and the following exchange occurred

between counsel for Dr. Feldman and the ALJ:

Counsel: We might want to get Dr. Chubaty’s – get the motion in limine

some other time.

The ALJ: Well – but I don’t want to interfere with your trial strategy. I

can be ready to do this when you need it.

Counsel: I guess what I was saying, Judge, if you’d like, since we’re

coming back with Dr. Rotunda [on the third day], we could go

ahead and do these three depositions and then maybe some other

time take up that motion in limine before we come back with

Rotunda, and just put Chubaty and Rotunda together?

The ALJ: Okay. Let’s do that. If that works for you?

Counsel: Yes. I think that will work.

After that hearing on November 7, counsel for the State filed a motion to withdraw the

motion in limine on December 17, 2007. However, counsel for the State later became ill, and

another attorney proceeded on behalf of the State. At the hearing before the ALJ on January

16, 2008, counsel for the State indicated that he wished to renew the motion in limine

regarding Dr. Chubaty’s testimony, with no changes to the substance of the motion. Counsel

for Dr. Feldman stated, “I remember seeing the previous motion in limine. I can’t – most of

the items that the State wanted to exclude we weren’t going to read anyway.” He indicated

that it would probably be unnecessary to hear part of the motion, and after the ALJ explained

that she would be out of town, counsel expressed no disagreement with the motion being

heard on the morning of the third and final day of the proceedings.

Counsel for Dr. Feldman filed a written response to both motions the day before the

hearing, in which he responded to the substance of the motions in limine but also requested

a continuance, arguing that “denying [him] the full content of his expert witness depositions

at this late stage of the trial would effectively ‘cut the heart out’ of his defense and result in

a prejudicial and unjust adjudication.” When hearing the motions, the ALJ pointed out that

Dr. Feldman had been aware of the bases of the State’s objections to Dr. Chubaty’s testimony

since the date of his deposition on August 3, 2007, because counsel for the State objected to

the testimony at that time. In addition, the ALJ was prepared to hear the Chubaty motion on

the second day of the proceedings, on November 7, 2007, and it was counsel for Dr. Feldman

who suggested that the motion be heard at a later date. Although the motion was later

-20-
withdrawn and renewed in its same form, counsel for Dr. Feldman was present and did not

object when the ALJ indicated that she would hear the motion on the morning of the third

day, and he even indicated that some of the issues would likely be resolved by the parties.

It was not until the day before the hearing that Dr. Feldman claimed that hearing the motions

on the last day of the proceedings would “cut the heart out” of his defense. As for the motion

concerning Dr. Rotunda’s testimony, the State filed its motion just days after receiving a

copy of the deposition. Considering all of the procedural circumstancesinvolved, in addition

to the fact that Dr. Feldman only challenges the exclusion of three questions and responses

on appeal, we find no abuse of discretion in the ALJ’s refusal to grant a continuance.

2. Testimony regarding the Standard of Care

Dr. Feldman also argues on appeal that the ALJ erred in excluding other testimony

from his experts. Prior to the hearings before the Board, the State had filed a motion

requesting that Dr. Feldman be precluded from introducing certain testimony from Dr.

Rotunda and Dr. Chubaty regarding the standard of care for the use of mesotherapy. The

State argued that because these doctors were licensed to practice medicine only in the states

of California and Arizona, respectively, they could not testify regarding the applicable

standard of care pursuant to Tennessee Code Annotated section 29-26-115(b). Dr. Feldman

filed a response, arguing that the requirements of section 29-26-115 were inapplicable to

proceedings before the Board. The ALJ concluded that the contiguous state rule of

Tennessee Code Annotated section 29-26-115 did apply in proceedings before the Board, but

that it was only applicable in this case to the issue of gross or repeated malpractice.

Accordingly, the ALJ ruled that the testimony of Drs. Rotunda and Chubaty was not

admissible for the purposes of addressing the gross or repeated malpractice charge, but that

their testimony regarding the remaining charges was admissible. Counsel for Dr. Feldman

asked the ALJ about her ruling as follows:

Counsel: Judge, is your ruling saying if our experts – if our experts do not

venture an opinion as to whether or not there’s a deviation from

the applicable standard of care . . . that they’re free to give their

opinions – expert opinions as to other matters, other than the

deviation from the state standard of care. Is that what you’re

saying?

The ALJ: Yes. Yes.

. . . .

So from a practical standpoint, it seems to me my ruling would

mean that your experts could come in and say what they’re

going to say, as long as they don’t say he breached the standard

of care.

-21-
On appeal, Dr. Feldman argues that the ALJ abused her discretion in excluding the doctors’

testimony that he was not guilty of malpractice and did not depart from the standard of care.

In response, the State argues that the exclusion of this evidence did not affect the outcome

of the case because the Board ultimately concluded that Dr. Feldman was not guilty of

malpractice. Dr. Feldman acknowledges that the Board did not find him guilty of

malpractice, but he continues to assert that the exclusion of this evidence “more probably

than not affected the [Board’s] verdict.” Dr. Feldman claims that “[t]here is no other

explanation for fining [him]” for 413 instances of violations.

We disagree with Dr. Feldman’s contention and find that the Board was authorized

to assess a civil penalty against Dr. Feldman for each of his mesotherapy patients even

though it did not find him guilty of malpractice. The Board has the power to reprimand or

take such action in relation to disciplining a licensee “as the board in its discretion may deem

proper[.]” Tenn. Code Ann. § 63-6-214(a)(4). In addition, the Board may assess a civil

penalty against a licensee “in an amount not to exceed one thousand dollars ($1,000) for each

separate violation of a statute, rule or order pertaining to such board[.] Each day of

continued violation constitutes a separate violation.” Tenn. Code Ann. § 63-1-134(a); see

also Tenn. Comp. R. & Regs. § 0880-02-.12(1)(h) (stating that the Board may impose a civil

penalty separately or in addition to other discipline upon finding that a licensee has violated

any provision of the Tennessee Medical Practice Act).

Here, the State had originally sought the imposition of a $500 type B penalty for each

5

day that Dr. Feldman maintained his advertising claims regarding mesotherapy. The Board

found that Dr. Feldman had advertised mesotherapy between June 2004 and March 2006,

which, by our estimation, would include approximately 630 days. However, the Board

ultimately decided to assess 413 separate type B civil penalties against Dr. Feldman in the

amount of $100 per penalty, with 413 representing the number of patients upon whom he had

performed mesotherapy. Dr. Feldman does not cite any authority for his position that the

Board was not authorized to assess a monetary penalty in this manner, and we have found

none. It is important to note that Dr. Feldman concedes that the Board had the authority to

fine him for deceptive advertising. He simply challenges the Board’s decision to fine him

based on the number of patients to whom he provided mesotherapy. Dr. Feldman was

obviously advertising his mesotherapy practice for the purpose of making a profit. We do

not find it arbitrary or capricious under the facts of this case for the Board to impose a

monetary penalty against Dr. Feldman based on the number of patients to whom he provided

the advertised service, especially in light of the fact that the Board was authorized to assess

A type B civil penalty of $100 to $500 may be imposed whenever the Board finds a licensee "guilty 5

of a violation of the Medical Practice Act, or regulations promulgated pursuant thereto, in such a manner as

to impact directly on the care of patients or the public." Tenn. Comp. R. & Regs. § 0880-02-.12(4)(b). 

-22-
a penalty for every day that the advertising took place. See Tenn. Code Ann. § 63-1-134(a)

(“Each day of continued violation constitutes a separate violation.”). In sum, we conclude

that the Board was authorized to penalize Dr. Feldman in the manner that it did, and the

Board’s decision does not indicate that it was implicitly punishing him for malpractice.

Consequently, we agree with the State’s contention that the ALJ’s decision to exclude the

experts’ testimony regarding the issue of malpractice did not affect the outcome of the case.

Because the alleged error would be harmless in any event, we will not consider the issue. See

Tenn. R. App. P. 36.

C. Consideration of the Disciplinary History

Finally, Dr. Feldman raises various issues regarding the Board’s consideration of his

past disciplinary history. Prior to the beginning of the proceedings before the Board, Dr.

Feldman filed a motion in limine requesting that the ALJ exclude any evidence of prior

charges and disciplinary action against him on the basis that it was irrelevant and that its

probative value was substantially outweighed by the danger of unfair prejudice. Dr. Feldman

had been disciplined by the Board on three prior occasions. In 1997, the Board had found

Dr. Feldman guilty of unprofessional, dishonorable, or unethical conduct for numerous

instances of inappropriate conduct involving patients and staff. For example, the Board

found that Dr. Feldman had threatened and screamed at a TennCare patient, made

inappropriate comments during patients’ pelvic exams, made sexually suggestive remarks

about female staff members and patients, had sexual intercourse with a seventeen year old

patient, told another patient that “there was nothing more he could do for her and that she

could put a gun in her mouth and pull the trigger,” and exchanged medical treatment,

prescriptions, and/or medications for sex with female workers at a massage parlor. The

Board’s 1997 disciplinary order placed Dr. Feldman’s license on probation for one year,

assessed a $2,500 civil penalty, and ordered Dr. Feldman to report back to the Board with

evidence that he had obtained the advocacy of a physician in the Physicians’ Health Program.

In 1998, the Board found Dr. Feldman guilty of unprofessional conduct and violation of a

Board order based on his failure to comply with the previous disciplinary order by failing to

obtain the advocacy of the aforementioned physician and failing to report back to the Board.

The 1998 order placed Dr. Feldman’s license on probation for five years, assessed a $2,000

penalty, and required his compliance with additional conditions. In 2001, the Board found

Dr. Feldman guilty of an advertising violation because he advertised his weight loss program

through post cards that offered a fifty percent discount to patients who brought a “diet

buddy” to their next visit, in violation of a regulation that prohibited a physician from

offering material consideration for the referral of patients. Dr. Feldman was assessed a

$1,000 penalty and ordered to remain on probation. The five-year probation was lifted in

September 2003.

-23-
The State opposed Dr. Feldman’s motion to exclude the evidence but requested that

the disciplinary history only be presented to the Board in the disciplinary phase of the

proceedings, after the Board had made its decision regarding the current charges against him.

Following a hearing, the ALJ denied Dr. Feldman’s motion to exclude the disciplinary

history, but ruled that in order to avoid prejudice, the disciplinary history would only be

presented to the Board after the resolution of the current charges. On the third day of the

proceedings before the Board, after the Board had announced its decision that it found Dr.

Feldman guilty of the various violations, the Board was provided with copies of the prior

disciplinary orders entered against Dr. Feldman. The ALJ then provided instructions to the

Board that it could not “reassess” any previous disciplinary action, and that it could only

consider the disciplinary history as part of its determination of the appropriate discipline, if

any, for the violations in this case.

Dr. Feldman argues on appeal that it was error for the ALJ to permit consideration of

his disciplinary history at any stage of the proceedings because the history was irrelevant and

unduly prejudicial. The UAPA provides a somewhat relaxed standard regarding the

admissibility of evidence in a contested case hearing:

The agency shall admit and give probative effect to evidence admissible in a

court, and when necessary to ascertain facts not reasonably susceptible to proof

under the rules of court, evidence not admissible thereunder may be admitted

if it is of a type commonly relied upon by reasonably prudent men in the

conduct of their affairs. The agency shall give effect to the rules of privilege

recognized by law and to agency statutes protecting the confidentiality of

certain records, and shall exclude evidence which in its judgment is irrelevant,

immaterial or unduly repetitious.

Tenn. Code Ann. § 4-5-313(1). In Robertson v. Tenn. Bd. of Social Worker Certification

& Licensure, 227 S.W.3d 7, 14 (Tenn. 2007), our Supreme Court considered whether it was

appropriate for the Board of Social Worker Certification and Licensure to consider a

licensee’s 1982 felony convictions for forgery, which occurred fifteen years before her

licensure as clinical social worker in 1997, when the Board considered a 1999 charge that the

social worker had an improper personal relationship with a client. The Court concluded that

the felony convictions were irrelevant and should not have been considered, stating that the

fact that the social worker, “while abusing drugs and alcohol twenty years earlier, forged

three checks to support a drug habit, [was] not probative of her 1999 professional conduct,”

especially in light of the fact that the Board had already considered the convictions when

deciding whether to grant her a license. Id. However, the Court stated that it wished to

“emphasize the narrowness of [its] holding,” explaining:

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We have merely determined that, under the evidentiary rules that apply to

UAPA adjudicative hearings, evidence of Robertson's pre-licensure conduct

that was entirely unrelated to her 1999 misconduct and that the Board

specifically considered in conjunction with its 1997 decision to grant her a

license was improperly a part of the Board's deliberations. In this case,

Robertson's offenses were committed prior to her licensure and therefore

before any duty to abide by the regulations applicable to social workers. Had

Robertson committed the felonies after licensure, their consideration might

have been relevant in crafting the appropriate remedy, regardless of whether

they were probative of whether she committed the infraction with which she

was charged.

Id. at 14-15 (emphasis in original) (footnote omitted).

In another case similar to the one before us, involving proceedings before the Board

of Medical Examiners, the ALJinstructed the Board that the physician’s “disciplinary history

could only be considered for determining appropriate sanctions if and in the event the Board

found Dr. Rich in violation of any of the statutes or regulations at issue.” Rich v. Tennessee

Bd. of Medical Examiners, No. M2009–00813–COA–R3–CV, 2010 WL 3565668, at *5

(Tenn. Ct. App. Sept. 14, 2010) perm. app. granted (Tenn. Mar. 10, 2011). When challenged

on appeal, the Court found no error in the procedure, and citing Robertson, stated that “Dr.

Rich's prior disciplinary action was appropriate for consideration of sanctions following the

finding that he was in violation of the charged statutes and regulations.”

6

We likewise find that Dr. Feldman’s lengthy disciplinary history was relevant to the

Board’s decision regarding the appropriate remedy to be imposed in this case, regardless of

whether it was probative of whether he committed the infractions with which he was

charged. We also find that the ALJ minimized the potential for undue prejudice by ruling

that the evidence could only be introduced at the disciplinary phase of the proceedings. We

therefore conclude that the ALJ did not abuse her discretion in handling this matter.

Next, Dr. Feldman arguesthat the Board unlawfully disregarded the ALJ’sinstruction

that itshould not reassess or repunish Dr. Feldman based on the previous disciplinary actions.

He points to the following comments, made during the Board’s deliberations by one of the

Board members:

Because the Court reversed the Board's finding on three of the seven charges against the physician, 6

the Court ultimately remanded the case for the reconsideration of the sanctions against the physician. Rich,

2010 WL 3565668, at *1.

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Dr. White: I think I’ll – I think I’ll start out. As I – had I been sitting on

this first case, which was the 21st and 22nd days of January,

1997, I would have voted at that time for a permanent

revocation of the license. I think the violations on the

medications are very egregious. And I honestly don’t think that

Dr. Feldman should have practiced medicine since that date.

This says in 1983, and I know we’re not supposed to

consider this for disciplinary action today, but in 1983 you had

sex with a minor and then had some other violations that went

along with that same sort of thing. Which I consider very

egregious, and had I been sitting on at that time [sic] – or at that

time I would have voted for a permanent revocation.

The ALJ: Are you asking me to comment on that?

Dr. White: No. I’m just – I’m making a statement to the rest of the Board.

I just think that that was very egregious. Both were very

egregious occurrences, and I don’t think he should have been

practicing medicine since 1997.

Now we can hear from the rest of the Board.

The ALJ: I just ask that you keep my instructions in mind.

Dr. White: I agree, and I thank you.

Another Board member then commented that he approved of revoking Dr. Feldman’s license

for one year and assessing a monetary penalty of $41,300, and he stated that he was basing

his decision not on the past but “strictly on the evidence that has been filed” in this case. The

third Board member then noted that Dr. Feldman had clearly exhibited unprofessional,

dishonorable, and unethical conduct, in addition to committing the numerous other violations

involving false statements, and stated that the Board had a duty to protect the health, safety,

and welfare of the people of Tennessee. Dr. White then stated:

And I apologize for making a pre-existing statement about the previous

actions. But I know Dr. Cunningham [another Board member] very well, and

I’m surprised that he let it pass, too.

But that being beside the point, I feel like I agree that all but one or two

of the things that we went over were true and violations of the medical practice

act, and I feel like this is an adequate punishment to sort of get the attention of

the Respondent, and I agree.

Dr. Feldman argues that Dr. White’s comments indicate that he disregarded the ALJ’s

instructions and intended to “re-punish” Dr. Feldman for his past conduct. Dr. Feldman

suggests that this is the only explanation for the Board’s decision to revoke his license “for

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just a handful of advertising violations.” We are unable to conclude, however, that Dr.

White’s statements indicate such a motive. As previously discussed, the Board was

authorized to consider Dr. Feldman’s disciplinary history, which necessarily involves a

consideration of the nature of past offenses and the effectiveness of prior disciplinary

measures that were imposed. Although Dr. White stated his opinion that Dr. Feldman’s

license should have been revoked during the 1997 proceedings, he did not suggest that a

permanent revocation was appropriate in the instant case. He also stated, “I know we’re not

supposed to consider this for disciplinary action today,” and when the ALJ mentioned her

previous instruction, Dr. White stated, “I agree.” Dr. White later recognized that his thoughts

about the previous actions were “beside the point.” He went on to discuss the violations at

issue in this case and his opinion that the proposed punishment would “get the attention of”

Dr. Feldman. Considering all of the circumstances, we decline to interpret the statements of

this one Board member as an indication that the Board’s decision was arbitrary and

capricious.

When reviewing only an agency-imposed remedy, “‘[t]he appropriate remedy is

peculiarly within the discretion of the [agency].’” Robertson, 227 S.W.3d at 13 (quoting

McClellan v. Bd. of Regents of State Univ., 921 S.W.2d 684, 693 (Tenn. 1996)). As such,

“we will only review whether the remedy is ‘unwarranted in law’ or ‘without justification in

fact.’” Id. at 14 (quoting Mosley, 167 S.W.3d at 321). “Courts are not to substitute their

judgment as to an appropriate sanction for that of the agency responsible for enforcement.”

City Towing & Transport, Inc. v. Transp. Licensing Comm'n of Metro. Gov’t of Nashville

& Davidson County, No. M2007-01246-COA-R3-CV, 2009 WL 276761, at *4 (Tenn. Ct.

App. Feb. 3, 2009) (citing Robertson, 227 S.W.3d at 16). Because we find that the Board’s

chosen sanction was warranted in law and justified in fact, we affirm its decision in all

respects.

V. CONCLUSION

For the aforementioned reasons, we affirm the decision of the chancery court

upholding the order of the Board of Medical Examiners. Costs of this appeal are taxed to the

appellant, Richard W. Feldman, M.D., and his surety, for which execution may issue if

necessary.

_________________________________

ALAN E. HIGHERS, P.J., W.S.

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