- 695 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

Thomas B. Whittle, M.D., appellant, v. 

State of Nebraska Department of Health 

and Human Services, Regulation and 

Licensure, and State of Nebraska ex 

rel. Douglas Peterson, Attorney 

General, appellees.

___ N.W.2d ___

Filed July 16, 2021. No. S-20-575.

1. Administrative Law: Judgments: Appeal and Error. A judgment or 

final order rendered by a district court in a judicial review under the 

Administrative Procedure Act, § 84-901 et seq. (Reissue 2014), may be 

reversed, vacated, or modified by an appellate court for errors appearing 

on the record.

2. ____: ____: ____. When reviewing an order of the district court 

under the Administrative Procedure Act for errors appearing on the 

record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor 

unreasonable.

3. Administrative Law: Judgments: Statutes: Appeal and Error. To the 

extent that the meaning and interpretation of statutes and regulations 

are involved, questions of law are presented which an appellate court 

decides independently of the decision made by the court below.

4. Administrative Law. To be valid, a rule or regulation must be consistent with the statute under which the rule or regulation is promulgated.

5. Malpractice: Physicians and Surgeons: Expert Witnesses. Neb. 

Rev. Stat. § 44-2810 (Reissue 2010) of the Nebraska Hospital-Medical 

Liability Act requires an expert witness on medical malpractice to be 

familiar with the customary practice among medical professionals in the 

same or similar locality under like circumstances.

6. Administrative Law: Records: Rules of Evidence: Judicial Notice: 

Appeal and Error. In a de novo review on the record of an agency, the 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/20/2021 09:12 AM CDT
- 696 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

record consists of the transcripts and bill of exceptions of the proceedings before the agency and facts capable of being judicially noticed 

pursuant to Neb. Evid. R. 201.

7. Records: Appeal and Error. A party’s brief may not expand the evidentiary record on appeal.

8. Administrative Law: Due Process: Notice: Evidence. Procedural due 

process in an administrative proceeding requires notice, identification 

of the accuser, factual basis for the accusation, reasonable time and 

opportunity to present evidence concerning the accusation, and a hearing 

before an impartial board.

Appeal from the District Court for Lancaster County: John 

A. Colborn, Judge. Affirmed.

James A. Snowden and Elizabeth Ryan Cano, of Wolfe, 

Snowden, Hurd, Ahl, Sitzmann, Tannehill & Hahn, L.L.P., for 

appellant.

Douglas J. Peterson, Attorney General, Mindy L. Lester, and 

Milissa Johnson-Wiles for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

I. NATURE OF CASE

The State brought disciplinary charges against Thomas B. 

Whittle, M.D., alleging that he practiced medicine in a pattern of incompetence and negligence and that he committed acts of unprofessional conduct. Following a hearing, the 

chief medical officer of the Division of Public Health for the 

Department of Health and Human Services (the Department) 

suspended Whittle’s license to practice medicine for 6 months. 

Whittle sought judicial review. The district court for Lancaster 

County, on de novo review, found that Whittle had over diagnosed and over treated patients and otherwise engaged in a 

pattern of incompetent or negligent conduct and practiced 

outside the standard of care. It found that the conclusions of 
- 697 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

law reached by the Department were correct and affirmed the 

sanction. Whittle appeals. He asserts that the regulation under 

which he was found to have engaged in unprofessional conduct 

is invalid, and he further asserts that the agency and the district 

court applied an incorrect standard of care, that the proceedings were interjected with religious animus, that evidentiary 

rulings at both the administrative level and the district court 

amounted to reversible error, and that he was denied due process. We determine that none of Whittle’s claims have merit 

and, accordingly, affirm.

II. STATEMENT OF FACTS

Whittle is a physician who practices vascular medicine, 

including surgery, in Lincoln, Lancaster County, Nebraska. He 

also operated a venous medicine practice in Omaha, Nebraska.

1. Procedural Background

The “Petition for Disciplinary Action” filed by the State 

against Whittle on July 3, 2017, set forth two causes of action 

for discipline relevant to this appeal: (1) the practice of the 

profession in a pattern of negligent conduct, in violation of 

Neb. Rev. Stat. § 38-178(6)(d) (Reissue 2016), and (2) the 

practice of the profession outside the acceptable and prevailing standard of care (unprofessional conduct), in violation of 

§ 38-178(23), Neb. Rev. Stat. § 38-179(15) (Reissue 2016), 

and 172 Neb. Admin. Code, ch. 88, § 010.02(32) (2013). The 

State also alleged that Whittle failed to keep and maintain 

adequate records.

Whittle filed a motion to dismiss, a motion to disqualify, 

and a motion to strike. The administrative order found that the 

motions, at best, pertained to the credibility of witnesses, not 

admissibility, and that Whittle’s arguments did not support dismissal of the case or exclusion of evidence.

A 16-day administrative hearing was held between May 

2018 and February 2019. One of Whittle’s former patients 

testified. The State’s designated expert, Thomas Webb, a 

board-certified vascular surgeon, testified that he reviewed 
- 698 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

the medical records of a sampling of Whittle’s patients, which 

we will refer to as “Patients A through I,” and provided an 

expert opinion that Whittle was outside the standard of care 

in their treatment. Webb is the director of vascular surgery 

for Cardiac Surgery Associates/Franciscan, and prior to moving to Indiana, he practiced vascular medicine in Nebraska 

as the director of vascular surgery at Bergan Mercy Hospital 

from 2000 to 2014. Stephen Torpy, Scott Wattenhoffer, and 

Timothy Baxter, Nebraska-area physicians who provided care 

to patients after they had been treated by Whittle, also testified at the hearing. Whittle and his expert witnesses, Patricia 

Thorpe and David Gillespie, who are physicians, testified on 

Whittle’s behalf. Thorpe and Gillespie testified generally that 

no procedure performed by Whittle was outside the standard 

of care, although in some cases, they would have treated 

patients differently.

Following the hearing, the Department concluded that the 

State had proved that Whittle had committed a pattern of 

incompetent or negligent conduct and departed from the standard of care by (1) over diagnosing eight patients (Patients 

A through H) and (2) over treating seven patients (Patients A 

through C, Patients E through G, and Patient I). It found that 

the State had not carried its burden to show that Whittle failed 

to keep and maintain adequate records. The Department ordered 

that Whittle’s license to practice medicine be suspended for 6 

months; required him to complete an evaluation to assess his 

competency to treat patients with venous disease; and required 

him to attend an approved course on “over-diagnosis, overtreatment and evidence-based medical practice.”

In its order, the Department found that the evidence “supports a finding by clear and convincing evidence that [Whittle] 

regularly over-diagnosed patients with venous disease without 

reference to objective symptoms, physical examinations, or 

diagnostic tests. In addition, [Whittle] maintained a practice in 

which he excessively widened disease definitions through use 

of ‘working diagnoses’ and flawed methodology.” The order 
- 699 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

also concluded that Whittle had over treated Patients A, E, 

and G because he failed to order adequate trials of conservative therapy.

Whittle sought review of his discipline in the district court 

under the Administrative Procedure Act. See Neb. Rev. Stat. 

§ 84-901 et seq. (Reissue 2014). Whittle offered briefs into 

evidence, since they had been submitted in lieu of argument, 

but the district court refused to admit the briefs. Turning to 

the substance of the appeal, the district court determined that 

Whittle received due process by the Department and that the 

witnesses for the State did not have economic or professional 

conflicts of interest, an appearance of bias, or religious animus. It found that evidentiary errors, if any, were harmless. 

Following a de novo review, the district court found that the 

legal conclusions reached by the Department were correct, that 

discipline was appropriate, and that suspension of Whittle’s 

credential to practice medicine for a period of 6 months was an 

appropriate sanction.

2. Medical Definitions

The administrative order set forth the following definitions 

of medical terminology, which are helpful for understanding 

the charges in this case:

• CEAP score is a classification tool used in vascular medicine 

that assists a physician in objectively describing the pathology and severity of a patient’s venous disease. “C” stands for 

clinical examination, “E” for etiology, “A” for assessment, 

and “P” for pathology. The basic CEAP score ranges from 

0 to 6, with 0 being no venous disease and 6 being the most 

severe venous disease.

• Chronic venous insufficiency is a condition that occurs when 

the venous wall and/or valves are not working effectively, 

making it difficult for blood to return to the heart from the 

lungs. Commonly, venous insufficiency is caused by faulty 

valves in the veins, which results in reflux of blood in 

the veins.
- 700 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

• Vein coil is a device that is inserted into a vein that causes 

clotting and seals faulty veins.

• Common iliac veins are veins that connect to the external 

iliac veins and internal iliac veins. They are located in the 

abdomen and drain blood from the pelvis and lower limbs.

• Iliocaval confluence is the junction between the common iliac 

veins and the inferior vena cava.

• Intravascular ultrasound (IVUS) is a surgical diagnostic technique in which an ultrasound device attached to a catheter 

is inserted into a blood vessel for diagnostic and treatment 

purposes and is used for, among other purposes, placement of 

stents, coils, and plugs.

• Jailing refers to iliac vein occlusion associated with extension of a stent into the iliocaval confluence that prevents 

future access into the vein during reintervention or thrombosis (formation of blood clot) of the right-sided vein (right 

common iliac vein). Jailing occurs in approximately 1 percent 

of patients.

• May-Thurner syndrome is a venous disease related to the 

compression of the left common iliac vein caused by external 

compression by the right common iliac artery, which results 

in symptoms in the left leg. It is also referred to as “iliac vein 

compression.”

• Pelvic congestion syndrome is pain and other symptoms 

caused by dilation of pelvic veins. Most patients with pelvic 

congestion have fullness or heaviness in the pelvis and achiness while sitting or standing.

• Perforators are veins connecting superficial veins and 

deep veins.

• Vein stent is a metal mesh tube that is inserted into a vein and 

expands against blocked or narrowed vein walls and acts to 

keep the vein open.

• Transvaginal ultrasound is a surgical diagnostic technique 

in which an ultrasound device is inserted in a patient’s 

vagina to image the internal aspects of the pelvis, including a 

patient’s veins.
- 701 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

• Venography is a diagnostic technique which uses x rays and 

contrast material injected into a vein to show blood flow and 

potential reflux.

3. Whittle’s Treatment

Facts related to Patients A through I are set forth below:

(a) Patient A

In March 2016, Patient A, a 41-year-old woman, presented 

to Whittle with complaints of varicose veins; pain in her right 

hip, buttock, and leg; and aching and cramping in her calf. She 

had previously used compression stockings for a short period 

of time in 2001, but had not used them since.

On physical examination, Whittle observed varicose veins 

in the left leg and spider veins. He did not find edema. In the 

right leg, Whittle observed pigmentation, shiny atrophic skin, 

large ropy varicose veins in the calf, and swelling extending up 

to the midcalf. He did not document inflammation or swelling 

of either leg. A noninvasive ultrasound examination known as a 

duplex scan was performed on both legs. The scan of the right 

leg showed severe reflux in the great saphenous vein, which 

runs inside the surface of the leg from the ankle to the groin; 

the examination found no significant reflux in the right small 

saphenous vein, which runs from the ankle to the calf, and 

found ropy varicose veins in the calf. The scan showed that the 

left leg had mild reflux throughout the left saphenous vein, but 

no reflux in the left anterior accessory vein (a vein that connects to the great saphenous vein) or in the small saphenous 

veins. Whittle concluded that Patient A had a CEAP score of 

4 for her right leg and a CEAP score of 1 in her left leg. The 

CEAP score of 1 indicated that there was not inflammation 

in the left leg. Whittle diagnosed Patient A with secondary 

lymphedema, which is fluid buildup due to a secondary cause; 

chronic venous hypertension with inflammation involving both 

sides; vein compression; lower limb vessel anomaly; and varicose veins of the lower extremity with inflammation in the 
- 702 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

right extremity. Whittle recommended a transvaginal ultrasound to assess pelvic vein pathology.

Five days later, Whittle conducted a transvaginal ultrasound 

and venography on Patient A. The procedure revealed internal 

iliac veins, which Whittle described as severely enlarged, and 

severely enlarged ropy pelvic varicosities, which were worse 

on the left side. He noted a possible fibroid in the uterus and 

a follicular cyst in the right ovary. Based on the findings of 

the transvaginal ultrasound, Whittle diagnosed Patient A with 

lower limb vessel anomaly, varicose veins of the lower right 

extremity with inflammation, vein compression, and chronic 

venous hypertension with inflammation involving both sides. 

The medical record noted that Whittle recommended a venogram and IVUS to investigate and treat and that stents, plugs, 

and/or coils would be used as needed to treat the problems 

found during the venogram and IVUS. Whittle also recommended that Patient A continue wearing medical grade compression stockings.

In April 2016, Whittle conducted a venogram and IVUS. 

He (1) coil embolized Patient A’s right and left ovarian vein to 

block blood vessels, (2) inserted “double barrel” stents in each 

of the common iliac veins, and (3) placed plugs in the main 

trunk of the internal iliac vein bilaterally.

The State’s expert witness, Webb, testified that there was 

no basis for the diagnosis of chronic venous hypertension in 

both legs. In its order, the Department found that the diagnosis of “venous hypertension with inflammation involving both 

sides” was not supported by medical evidence and was not correct. It found that the April 2016 treatment failed to meet the 

applicable standard of care because Whittle failed to require 

an adequate trial of conservative therapy with compression 

stockings or other methods prior to proceeding with invasive 

diagnostic tools and surgery. Patient A had a CEAP score of 

1 on her left side, which meant she had minimal symptoms 

or findings. Although she had a higher CEAP score on her 

right side, the right iliac vein compression was less than 30 
- 703 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

percent. There was no indication of compression or occlusion 

in the area where the right and left iliac veins connect. The 

Department found that the applicable standard of care requires 

that no stenting be placed under such circumstances and that 

Whittle failed to meet the applicable standard of care.

The Department also found that the embolizations and placement of plugs by Whittle in Patient A’s ovarian veins and internal iliac vein failed to meet the applicable standard of care, 

which requires that, prior to treating suspected venous insufficiency in the pelvis, a physician must identify a connection 

with the internal iliac veins on the right or left venous system. 

With respect to identifying the tributaries to internal iliac veins, 

Webb explained:

[T]hink of the internal iliac veins as a main trunk. And 

you have . . . branches and twigs, and these branches or 

twigs are in the pelvis, and one of these branches goes . . . 

to the leg over here.

So if you don’t obliterate that branch and you block 

this, have you helped that leg? Absolutely not. Because 

you still have inflow from the artery into the venous 

network.

Unless you’ve taken care of that branch that you’ve 

identified to the leg, you can still reflux to that leg.

On May 10, 2016, 11 days after Whittle inserted stents, embolizations, and plugs, Patient A developed an intraabdominal 

bleed for which she required hospitalization.

Baxter, Patient A’s subsequent treating vascular surgeon, 

testified that the internal abdominal bleeding was caused by 

either the coils or the plugs inserted by Whittle. He testified 

that Whittle’s explanation for the bleeding was not plausible. 

Gillespie testified that it “would be hard to justify” stent placement on Patient A’s left leg.

(b) Patient B

Patient B, a 36-year-old woman, presented to Whittle in 

October 2015 with leg pain and varicose veins. She had a 
- 704 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

16-year history of visible varicose veins and symptoms that 

included aching, swelling, tired, and heavy legs, as well as 

soreness to the touch in her legs. She denied having pelvic 

symptoms. In 2009, an endovenous ablation (cauterization and 

closure) of her right and left greater saphenous veins was performed. Conservative efforts had been attempted at some time 

in the past.

A duplex ultrasound of both lower extremities showed reflux 

in Patient B’s greater saphenous vein in her right calf and 

reflux in her left greater saphenous vein and left anterior 

accessory saphenous vein. Whittle did not study the pelvic 

veins. Whittle diagnosed Patient B with vein compression, 

lower limb vessel anomaly, chronic venous hypertension with 

inflammation involving both sides, and varicose veins of lower 

limb with inflammation. Whittle noted in Patient B’s medical 

record that she was experiencing multiple severe symptoms of 

venous insufficiency and recommended a venogram and IVUS 

to investigate and treat areas, including the pelvic region. He 

also gave Patient B a prescription for compression stockings 

“to begin conservative treatment.”

In April 2016, Patient B reported increased soreness in 

her legs despite conservative efforts. She denied having pelvic symptoms. A venography with a bilateral groin approach 

was scheduled. Whittle performed a venogram and IVUS of 

Patient B’s gonadal veins and placed bilateral common iliac 

vein stents despite the absence of iliocaval confluence involvement and the absence of a significant right common iliac vein 

compression.

The Department found that Whittle’s initial diagnoses of 

vein compression and lower limb vessel anomaly were not 

supported by physical findings or ultrasound findings. It found 

the decision to perform IVUS and venography on Patient B’s 

pelvic region failed to meet the applicable standard of care 

because (1) her pelvis had not been imaged and there had been 

no evidence of atypical veins in the groin, thigh, buttocks, or 

genital area and (2) Patient B reported no symptoms in her 
- 705 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

pelvic area. It found that placement of stents failed to meet the 

applicable standard of care because there were no pelvic collaterals and tributaries refluxing into the leg to support a diagnosis of pelvic insufficiency or pelvic congestion syndrome. 

It found that Whittle’s theory that a pelvic venous pathology 

existed was not supported by evidence-based medical practice 

or medical literature and that there was no medical indication 

for placement of a stent in the left common iliac vein because 

no pelvic collaterals or tributaries were identified on venography to support a diagnosis of pelvic venous insufficiency 

such as would cause Patient B’s leg complaints.

Patient B did not improve following the treatment with 

Whittle, and she sought a second opinion from Wattenhofer. 

Wattenhofer testified at the hearing that Whittle’s placement of 

stents was not medically indicated and did not meet the applicable standard of care.

(c) Patient C

Patient C, a 54-year-old woman, was treated by Whittle in 

2012 for injection sclerotherapy and endovenous ablation of her 

great and small saphenous veins. These treatments are methods 

of closing veins. She returned to Whittle in September 2014 

complaining of red patches on her ankle areas. The patches 

were worse on the right ankle. She denied pain, swelling, achiness, or heaviness. On physical examination, Patient C showed 

spider veins and reticular veins without edema or varicose 

veins. Whittle noted that “[e]ssentially her legs are asymptomatic.” Whittle performed a duplex ultrasound, which detected 

calf perforators with reflux and an isolated greater saphenous 

vein segment with reflux. The duplex ultrasound showed no 

significant reflux in the greater saphenous veins or in the 

deep systems bilaterally. Despite no finding of deep system 

reflux, a note in Patient C’s medical record by a physician 

assistant stated that “given the recurrence of varicose veins, 

I’m suspicious that she harbors compressed iliac veins and 

anomalous lower extremity veins.” Patient C was informed 
- 706 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

of alternative conservative therapies, including compression 

stockings, physical activity, and weight loss. Whittle also recommended a venogram and IVUS for possible stenting, embolization, and ablation.

Whittle diagnosed Patient C with (1) chronic venous hypertension with inflammation, (2) anomalous lower extremity 

veins, (3) iliac vein compression, and (4) secondary lymphedema. At the administrative hearing, Webb testified that spider 

and reticular veins do not support a suspicion for compressed 

iliac veins or anomalous lower extremity veins. He explained 

that it was unlikely Patient C’s skin redness was the result of 

venous disease.

Whittle performed a venogram and IVUS. He observed that 

the left common iliac vein had an outflow obstruction with 

only a 50-percent compression. He later stated, however, that 

the left common iliac vein “appears to be occluded with trickle 

flow getting into the inferior vena cava.” Webb testified that 

a vein is “occluded” when it is completely blocked, which is 

inconsistent with imaging of Patient C showing a 50-percent 

compression.

During the IVUS, Whittle (1) placed a stent in Patient C’s 

left common iliac vein, (2) performed two plug embolizations 

of hypogastric veins, and (3) performed a coil embolization 

and sclerotherapy on an enlarged left ovarian vein.

The Department found that the September 2014 diagnosis 

of anomalous lower extremity veins and iliac vein compression was not supported by either physical or ultrasound findings and that Whittle failed to meet the applicable standard 

of care. It found that the use of IVUS and venography failed 

to meet the applicable standard of care because Patient C had 

no symptoms or complaints, no preoperative imaging, and no 

clinical findings that warranted interventions. It found that 

Whittle’s use of a stent, plug embolizations, and coil embolizations failed to meet the applicable standard of care because it 

was unnecessary and ineffectual, since Patient C had no pelvic 
- 707 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

symptoms and treatment in the pelvis could not improve symptoms in her ankles.

After Whittle scheduled Patient C for more coiling and possibly more stents in her pelvic veins, Patient C sought a second 

opinion from Baxter. Baxter noted that the duplex ultrasound 

performed by Whittle did not show any significant reflux in 

Patient C’s left side and did not warrant invasive diagnostic and 

treatment techniques for left common iliac vein compression.

(d) Patient D

Patient D, a 33-year-old woman, was a previous patient of 

Whittle who returned in April 2015, complaining of swelling, tiredness, and heaviness in her legs, as well as symptoms 

consistent with restless leg syndrome. She did not complain 

of pelvic symptoms. The physical examination revealed no 

significant venous varicosities, but showed some amount of 

edema bilaterally. Patient D reported that she exercised regularly, elevated her legs in the evenings, and had worn compression stockings in the past. Whittle performed a venous duplex 

ultrasound showing reflux in Patient D’s greater and small 

saphenous vein and a thickened valve cusp in the left femoral vein. Whittle diagnosed Patient D with vein compression, 

lower limb vessel anomaly, chronic venous hypertension with 

inflammation, varicose veins of the left lower extremity with 

inflammation, and secondary lymphedema. Whittle found she 

had a CEAP score of 3 bilaterally, indicating superficial venous 

disease. He recommended a venogram, an IVUS, and stents, 

plugs, and/or coils to treat the problems.

Patient D did not undergo the treatment recommended by 

Whittle and sought a second opinion from Torpy. Torpy determined that Patient D had a CEAP score of 2. Torpy ablated 

Patient D’s great saphenous vein, and the treatment was successful. Patient D told Torpy that Whittle had diagnosed her 

with May-Thurner syndrome, but Torpy did not find any evidence of iliac vein compression. Torpy testified that Whittle’s 
- 708 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

treatment, diagnostics, and recommendations for Patient D 

failed to meet the standard of care in Nebraska.

Webb opined that a venogram and IVUS were not medically 

indicated for Patient D, noting that the 2015 duplex ultrasound 

was not greatly changed from a prior duplex ultrasound Whittle 

performed in 2013. The Department found that the April 2015 

diagnosis of vein compression, recommendation to use a venogram and IVUS, and recommendation to use stents, plugs, 

and/or coils to treat issues in Patient D’s pelvic veins failed 

to meet the applicable standard of care because the diagnoses 

of vein compression and lower limb vessel anomaly were not 

supported by physical findings, duplex ultrasound findings, or 

other medical evidence.

(e) Patient E

Patient E, a 51-year-old woman, presented to Whittle in 

October 2013 with complaints of left hip, thigh, and groin pain. 

The medical record shows that Patient E was suffering from leg 

pain, aching, cramping at night, and swelling, as well as tired 

and heavy legs, with symptoms in the left leg being worse than 

in her right. However, at the hearing, Patient E denied having 

such symptoms. Patient E reported that she exercised regularly, 

elevated her legs in the evening, and had worn compression 

stockings for about a week after surgeries. She reported pelvic 

pain and heaviness, vulvar varicosities, painful intercourse, 

hemorrhoids, bladder spasms, and a history of polycystic ovaries. She previously had three laproscopic surgeries in her pelvis, all related to cystic ovaries.

Whittle performed a venous duplex ultrasound, which 

showed reflux in a perforator vein in Patient E’s left calf. 

Whittle diagnosed pelvic congestion syndrome, chronic venous 

hypertension with inflammation, varicose veins of the left 

lower extremity with inflammation, and “heterozygous factor 

V leiden mutation.” He recommended a venogram and IVUS 

of the abdomen and pelvis, with a possible angioplasty and 

insertion of stents.
- 709 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

Whittle performed a venogram and IVUS on Patient E. He 

placed stents in several veins and identified a 90-percent stenosis in the left common iliac vein. He investigated hypogastric 

veins and ovarian veins and noted only mild reflux in the left 

hypogastric vein, no reflux in the right hypogastric vein, and 

no reflux in either ovarian vein.

Patient E’s pain continued to increase. She returned to 

Whittle in June 2014, complaining of pain in her bilateral hips, 

radiating to her thighs and buttocks. Whittle performed a transvaginal ultrasound and revealed hypogastric veins on each side 

which were normal. Nonetheless, Whittle found that Patient E 

had “[a]nomalous enlarged hypogastric veins noted bilaterally.” 

He recommended a repeat IVUS and venography to examine 

the pelvic veins and to use stents, plugs, and/or coils to treat 

any problems.

Whittle performed the repeat IVUS in August 2014. The 

sizes of the hypogastric veins were not significantly enlarged 

or anomalous. There was no significant reflux in either ovarian 

vein. Despite the absence of reflux, Whittle performed a plug 

embolization of the origins of Patient E’s hypogastric veins. 

Patient E recalled that she screamed because of the pain in her 

lower back during this round of procedures.

Webb testified that Patient E’s gynecological diagnoses were 

likely the true etiology for her symptoms. Baxter testified the 

diagnoses by Whittle were not supported by the medical record 

or physical findings. The record is undisputed that approximately two-thirds of the millions of women who suffer from 

pelvic pain in the United States can attribute that pain to nonvenous etiology. Webb testified that he is not aware of another 

physician in Nebraska or anywhere else who would proceed to 

the procedures for Patient E in the same manner as Whittle.

The Department found that the October 2013 recommendation of a venogram and IVUS and a possible angioplasty and 

stents failed to meet the applicable standard of care because 

(1) Patient E’s physical symptoms and the results of her duplex 

ultrasound findings did not support a diagnosis of pelvic 
- 710 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

congestion syndrome, (2) Whittle’s theory was not correct, and 

(3) Whittle had not attempted an adequate trial of conservative 

therapy given Patient E’s clinical presentation. It found that 

the June 2014 recommendation of IVUS and venography for 

Patient E failed to meet the applicable standard of care because 

the same procedure had been conducted 9 months prior and a 

reasonable physician would not expect a change in a patient’s 

vein status in such a short period of time and because there 

was no basis to recommend such intervention. With respect to 

the embolization of the hypogastric vein, the Department found 

this was not indicated based on Patient E’s symptoms and clinical findings.

Patient E did not obtain clinical relief from the procedures. 

When the pain in her legs and behind her knees worsened, she 

sought a second opinion from two other physicians. Baxter 

testified that stents were unnecessary and that closing the veins 

was not within the standard of care.

(f ) Patient F

Patient F, a 14-year-old girl, presented to Whittle in April 

2013 with lower leg swelling and discoloration of her feet 

which had progressed during the previous 6 months. She had 

never worn compression stockings. A physical examination 

showed trace edema on both legs with discoloration of the feet 

up to the midshin area. A duplex ultrasound revealed reflux 

within the greater and small saphenous venous systems bilaterally. There was no significant reflux.

Whittle diagnosed Patient F with chronic venous hypertension with inflammation and recommended a trial of compression stockings for 3 to 6 months. He informed Patient F that 

if symptoms persisted, he would consider endovenous catheter 

ablation of the saphenous veins and vascular ultrasound assessment of her iliac veins.

In July 2013, Patient F returned for a followup appointment. She reported that she had worn compression stockings, “collectively for about a month,” but the stockings were 
- 711 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

uncomfortable and her feet were still purple, so she stopped 

wearing them. She requested that Whittle perform an IVUS. 

Physical examination revealed a red knee, bluish discoloration 

on both feet, and edema.

In August 2013, Whittle performed an IVUS and venography 

and noted that the inferior vena cava was occluded. Webb 

opined that this finding was not consistent with the imaging 

and was an “egregious” error. Whittle inserted bilateral stents, 

using a “double barrel” technique, into the common iliac vein.

Patient F’s physical condition did not improve, and she 

developed significant back pain. She sought treatment from 

Baxter, who concluded, to a reasonable degree of medical 

certainty, that Patient E’s severe back pain was caused by the 

stents. Baxter and Webb testified that the stents were too big for 

Patient F’s veins. Further, the stents did not improve the bluish discoloration on Patient F’s feet. The pain from the stents 

caused Patient F to take pain prescription medications, miss 

classes, and “eventually . . . homeschool.” Baxter attempted 

to remove the “double barrel” stent placed by Whittle, but it 

was too big. He observed that “the stents were actually pushing into the wall to the point that they were just barely covered 

by any tissue. . . . I thought that if I tried to take those out, it 

would just destroy the [vein].” According to Baxter, the stents 

are likely to “come through the wall of the vein,” which would 

necessitate additional surgery.

The Department found that the April 2013 diagnosis of 

Patient F with chronic venous hypertension with inflammation failed to meet the applicable standard of care because it 

was not supported by reported symptoms, physical findings, 

or duplex ultrasound results and was wrong. In fact, Patient F 

suffered from acrocyanosis, a benign, usually neurological disorder, which is not related to venous compression. Baxter testified that acrocyanosis is not an uncommon condition, especially among adolescent girls, and that the best treatment is 

simply reassuring the patient that the condition is benign. The 

Department found that the August 2013 operation also failed 
- 712 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

to meet the applicable standard of care because Patient F’s 

symptoms and diagnostic results did not support a pelvic cause 

of any venous disease.

(g) Patient G

Patient G, a 59-year-old woman, presented to Whittle in 

July 2013 with a complaint of varicosities that had worsened 

over the previous decade. She reported symptoms of itching, 

burning, aching, cramping, fatigue, heaviness, and foot pain 

for 2 to 3 years. Additionally, she had pelvic heaviness and 

pain, bladder spasms, irritable bladder, painful intercourse, 

and crampy and bloated feelings. She had not worn compression stockings.

Whittle’s physical examination showed spider veins on both 

of Patient G’s thighs. She had edema showing minor swelling bilaterally. An ultrasound of Patient G’s lower extremity showed an absence of reflux in the left or right greater 

saphenous vein and deep venous systems bilaterally. Whittle 

diagnosed Patient G with chronic venous hypertension with 

inflammation, pelvic congestion syndrome, and spider veins. 

Webb and Baxter testified that these diagnoses were not within 

the standard of care. Whittle recommended a venogram and 

IVUS, a possible angioplasty, and a possible stent.

Patient G sought a second opinion from Baxter, who recommended conservative therapy.

The Department found that the July 2013 diagnoses of pelvic vein compression and pelvic congestion syndrome failed 

to meet the applicable standard of care because they were not 

supported by history, physical findings, or a duplex ultrasound 

and were not correct. The recommendation of a venogram and 

IVUS failed to meet the applicable standard of care because 

conservative management with compression therapy was not 

offered prior to a recommendation of intervention.

(h) Patient H

Patient H, a 49-year-old woman, presented to Whittle in 

February 2013 with complaints of chronic venous hypertension 
- 713 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

and varicose veins for the previous 20 years. She had progressive throbbing, aching, heaviness, and pain in both legs; was 

fatigued; had pelvic pain after intercourse; and suffered from 

bladder and rectal spasms. She also complained of a persistent 

burning in her right calf. She had previously had surgeries to 

remove her uterus and ovaries. She had been wearing compression stockings for 6 years.

Whittle performed an ultrasound, which showed significant 

reflux in Patient H’s right and left great saphenous veins, left 

anterior accessory saphenous vein, right posterior accessory 

saphenous vein, and right small saphenous vein. She also had 

varicosities in the thigh and calf of both legs. Whittle diagnosed her with pelvic congestion syndrome and chronic venous 

hypertension with inflammation, inflammation of a vein and 

vein inflammation causing a clot of the superficial vessels 

of her lower extremities, and swelling of a limb. He recommended a transvaginal ultrasonography, which was performed 

2 days later. It showed that the vessels in Patient H’s pelvic 

area were normal sized.

In Patient H’s medical record, Whittle stated that the findings were “consistent with enlarged refluxing varicose veins 

of the pelvis . . . consistent with iliac outflow obstruction.” 

Whittle recommended a venogram and IVUS and a possible 

angioplasty and/or stent placement. Webb testified that such 

a diagnosis was not supported by the evidence and was not 

within the standard of care. He explained that, in fact, the 

removal of the uterus and ovaries would have “dramatically 

lessen[ed] the likelihood of having pelvic congestion syndrome 

because you’ve obliterated most of the veins that are involved 

with that syndrome.”

The Department found that Whittle’s recommendation that 

Patient H proceed with venography and other procedures failed 

to meet the applicable standard of care because the reported 

symptoms and objective findings did not support a diagnosis 

of pelvic congestion syndrome. Patient H sought a second 

opinion from Baxter, who performed an MRI of her pelvis and 
- 714 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

found that the pelvic veins were not enlarged. Baxter did not 

observe any evidence of pelvic congestion syndrome. He prescribed compression support stockings, which relieved some of 

her symptoms.

(i) Patient I

Patient I, a 47-year-old woman, presented to Whittle in 

October 2010 with complaints of calf pain and varicose veins 

in both legs with progressive throbbing, aching, heaviness, 

itching, tingling, and swelling throughout the day. Her pain 

was worse in her right leg than her left. She had no pelvic complaints. Whittle’s physical examination revealed ropy varicose 

veins in the bilateral thighs and calves and minor edema. A 

duplex ultrasound showed superficial vein reflux in each lower 

extremity, no evidence of deep vein thrombosis on either side, 

and an enlarged lymph node on Patient I’s right groin. There 

was no indication that the abdominal wall was examined. 

Whittle diagnosed Patient I with varicose veins of the lower 

extremities with inflammation and swelling of limbs. He concluded that she had a CEAP score of 4 bilaterally. He recommended endovenous ablation for both legs.

Patient I called Whittle’s office and spoke with a member of 

his nursing staff about a potential pelvic scan. According to the 

nurse’s note, the nurse “explained we would probably need her 

to come back for another office visit to document her symptoms” to support a magnetic resonance venography (MRV), 

because insurance criteria had “tightened on approving these 

MRV’s but I assured her we would do what was needed to get 

the approval for the test.”

In November 2010, Whittle performed an endovenous ablation on Patient I on both legs. The next day, he documented new 

pelvic pain and pain on intercourse by Patient I. He reported 

that her pelvic symptoms had been worsening over the past 

2 to 3 years. His report stated that the ultrasound showed 

a large cluster of varicosities “which appear[] to originate 

along the lower abdominal wall and pelvis.” He diagnosed 
- 715 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

Patient I with pelvic congestion syndrome and recommended 

an MRV.

The MRV revealed reflux and enlargement of the ovarian 

veins, the left greater than the right; enlarged internal iliac vein 

branches; mild enlargement of the inferior vena cava; and some 

cysts. The MRV did not find compression of the inferior vena 

cava or either common iliac vein and no anomalous or enlarged 

internal iliac veins with reflux identified.

In December 2010, Whittle subsequently performed staged 

endovenous ablations on Patient I’s greater saphenous veins. 

He then performed a venography of the ovarian veins. During 

this operation, he observed a vein refluxing and embolized 

it with a coil. Later in December 2010 and in April 2011, 

Whittle performed endovenous ablations on Patient I’s lower 

extremities.

In October 2011, Patient I returned with complaints of 

persistent pelvic pain and throbbing radiating to her thighs 

bilaterally with the right being worse than the left. Whittle 

noted that Patient I “had an MRV scan prior to the coil embolization which demonstrates reflux in both ovarian veins and 

a suspicion for refluxing her internal iliac veins which are 

large.” He recommended a repeat venography with possible 

coil embolizations of the pelvic veins. The new venography 

identified reflux in the right ovarian vein, and Whittle embolized the vein.

In March 2012, Patient I returned to Whittle complaining of 

pain and burning in her right calf and inflammation. A duplex 

ultrasound showed reflux in two right distal calf perforators 

and scattered secondary varicosities bilaterally. He recommended endovenous catheter ablation of the refluxing perforator segment. The ablation of the right calf perforators was 

performed in April 2012. Webb testified this ablation was not 

within the standard of care, because Patient I did not meet the 

criteria for ablation of her perforators.

In June 2014, Patient I returned to Whittle complaining of recurrent varicose veins and throbbing, achiness, and 
- 716 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

heaviness beginning in the groin and extending into the thighs 

and calves. Whittle recommended intravascular ultrasound 

assessment of her iliac veins to look for outflow obstruction 

and assess her hypogastric veins for anomaly. He performed 

a venogram and IVUS and measured the hypogastric veins 

as within a range shown to be normal by the State. Whittle 

described the left vein as having severe reflux, stagnation of 

flow, and a left-to-right crossover flow. He described the right 

hypogastric vein as having absent valve function, stagnation 

of flow, and right-to-left crossover flow. The crossover flow 

did not relate to any of Patient I’s symptoms, but nonetheless, 

Whittle inserted “double barrel” stenting to the common iliac 

veins and plugged the origins of the hypogastric veins. Webb 

testified that plugging the internal iliac veins was not medically 

indicated. Baxter testified that Patient I’s iliac vein had not collapsed and that there was no reason to insert a stent.

The Department found that the April 2012 ablation of 

Patient I’s perforators failed to meet the applicable standard 

of care in that her clinical findings did not warrant surgical 

intervention. It found that the July 2014 embolization of the 

hypogastric veins was not medically indicated and failed to 

meet the applicable standard of care.

4. Sanctions

The administrative order found that Whittle’s over diagnoses 

and over treatment resulted in his patients’ undergoing numerous unnecessary and unwarranted invasive diagnostic tests and 

surgeries and that “the violations of his professional duties 

are clear and significant.” It found that given the large number of patients affected by Whittle’s pattern of negligent and 

unprofessional conduct, suspension was appropriate. Several 

mitigating factors supporting suspension rather than revocation 

included Whittle’s cooperation with the Department and that he 

was otherwise fit to practice medicine.

In affirming the sanction imposed by the Department, the 

district court agreed that Whittle was fit to practice medicine, but found that the nature of the offenses, the need for 
- 717 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

deterrence, the maintenance of the reputation of the profession, 

and the attitude of the offender “more than adequately” supported the sanction. The court found, inter alia, that Patients 

E and F suffered pain because Whittle performed procedures 

not medically indicated and that Patients A through C and G 

underwent invasive, unnecessary procedures. The court determined that the 6-month suspension that Whittle received did 

not shock the conscience and that disciplining a physician for 

misconduct is related to the legitimate governmental interest of 

public health and welfare.

Whittle appeals.

III. ASSIGNMENTS OF ERROR

Whittle claims, summarized and restated, that he was disciplined under an invalid regulation, that the Department and 

the district court applied the incorrect standard of care, that the 

proceedings were interjected with religious animus, that certain evidentiary rulings were incorrect, and that he was denied 

due process.

IV. STANDARDS OF REVIEW

[1,2] A judgment or final order rendered by a district court in 

a judicial review pursuant to the Administrative Procedure Act 

may be reversed, vacated, or modified by an appellate court 

for errors appearing on the record. Swicord v. Police Stds. Adv. 

Council, ante p. 43, 958 N.W.2d 388 (2021). When reviewing an order of the district court under the Administrative 

Procedure Act for errors appearing on the record, the inquiry 

is whether the decision conforms to the law, is supported by 

competent evidence, and is neither arbitrary, capricious, nor 

unreasonable. Swicord, supra.

[3] To the extent that the meaning and interpretation of 

statutes and regulations are involved, questions of law are 

presented which an appellate court decides independently of 

the decision made by the court below. McManus Enters. v. 

Nebraska Liquor Control Comm., 303 Neb. 56, 926 N.W.2d 

660 (2019).
- 718 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

V. ANALYSIS

1. Valid Exercise of Regulatory Authority

Whittle’s principal claim concerns the standard of care that 

was applied in this disciplinary proceeding by the Department 

and the district court. Whittle claims that he belongs to a 

national school of thought in medicine which favors more 

aggressive venous interventions, but which is disfavored by 

local practitioners. Whittle claims that 172 Neb. Admin. Code, 

ch. 88, § 010.02(32) (2013), which he was found to have 

violated, is invalid because its standard of care is established by reference to practice in the State of Nebraska, not a 

national standard, and in so providing, he claims the regulation is inconsistent with and impermissible under Nebraska’s 

Uniform Credentialing Act, see Neb. Rev. Stat. § 38-101 et 

seq. (Reissue 2016). We conclude that the Department possessed authority under § 38-179(15) to define acts of unprofessional conduct and that § 010.02(32) did not impermissibly 

modify, alter, or enlarge portions of its enabling statute. Thus, 

Whittle’s violations were found to have occurred under a 

proper regulation.

We first set forth the statutory and regulatory framework 

behind the regulation which Whittle challenges. The Uniform 

Credentialing Act provides that a credential to practice a 

profession may be denied, refused renewal, or have other 

disciplinary measures taken under one or more of 24 bases, 

including, as relevant here, “(6) Practice of the profession 

. . . (d) in a pattern of incompetent or negligent conduct; 

. . . (23) Unprofessional conduct as defined in section 38-179.” 

§ 38-178.

Unprofessional conduct, as defined by statute, “means any 

departure from or failure to conform to the standards of acceptable and prevailing practice of medicine and surgery or the ethics of the profession, regardless of whether a person, patient, 

or entity is injured.” Neb. Rev. Stat. § 38-2021 (Reissue 

2016). See, also, § 38-179. Unprofessional conduct includes 

“[f]ailure to comply with any federal, state, or municipal 
- 719 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

. . . regulation that pertains to the applicable profession,” and 

“[s]uch other acts as may be defined in rules and regulations.” 

§ 38-179(13) and (15).

Turning to the regulations in effect at the time of the hearing, § 88-010.02(32) defined unprofessional conduct to include 

“[c]onduct or practice outside the normal standard of care in 

the State of Nebraska which is or might be harmful or dangerous to the health of the patient or the public, not to include a 

single act of ordinary negligence.” The rule in effect between 

July 29, 2004, and December 15, 2013, similarly defined 

unprofessional conduct to include “[a]ny conduct or practice 

outside the normal standard of care in the State of Nebraska 

which is or might be harmful or dangerous to the health of the 

patient or public.” 172 Neb. Admin. Code, ch. 88, § 013(21) 

(2004).

Whittle challenges the correctness of the regulation’s phrase 

“the normal standard of care in the State of Nebraska.” He 

claims the phrase is inconsistent with Nebraska’s Uniform 

Credentialing Act and is invalid. He argues that the effect of 

the regulation is to establish a “majoritarian rule” among medical professionals in Nebraska, brief for appellant at 24, which 

results in punishment for physicians using less conservative 

approaches than those employed by a majority of practitioners 

in Nebraska. We reject Whittle’s challenge.

[4] To be valid, a rule or regulation must be consistent with 

the statute under which the rule or regulation is promulgated. 

Mahnke v. State, 276 Neb. 57, 751 N.W.2d 635 (2008). We 

believe the phrase “[c]onduct or practice outside the normal 

standard of care in the State of Nebraska” in the challenged 

regulation is not inconsistent with § 38-179. Section 38-179 

explicitly authorizes the Department to define the bases of 

unprofessional conduct to supplement those enumerated in 

§ 38-179(13) and (15). Section 38-179 does not provide a 

definition of “standards of acceptable and prevailing practice,” 

much less one at odds with that provided by the Department 

in § 010.02(32).
- 720 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

Whittle relies heavily on Mahnke, supra, in support of his 

contention that § 010.02(32) is invalid. Whittle’s challenge 

compares unfavorably with Mahnke, in which we invalidated 

a prior version of the same regulation to the extent it could 

be interpreted to permit discipline for a single act of ordinary 

negligence. The problem with the regulation as it was written 

at the time Mahnke was under consideration was that it created a basis to discipline a professional who had committed 

a single act of unprofessional conduct and therefore directly 

contradicted the language of the enabling statute, Neb. Rev. 

Stat. § 71-147 (Reissue 2003), which then permitted the State, 

as it does now, the power to impose discipline based on “a 

pattern of negligent conduct.” Cf. § 013(21). Under the statutory definition requiring “a pattern,” a professional could not 

be disciplined for a single act of ordinary negligence, and we 

found that the regulation in question was invalid because its 

provision permitted discipline based on a single act of negligence which was directly inconsistent with the statute under 

which it was promulgated.

In contrast to Mahnke, the regulation at issue here, 

§ 010.02(32), is not inconsistent with the language of the 

authorizing legislation, and in fact, the statutes specifically 

authorize the Department to create regulations describing acts 

of unprofessional conduct. See § 38-179. The “normal standard 

of care in the State of Nebraska” in the regulation is not in 

excess of the enabling legislation. We conclude the regulation 

is valid.

[5] Our conclusion that the regulation is valid is harmonious 

and compatible with Nebraska malpractice legislation found 

elsewhere in the statutes. Under § 38-179(13), unprofessional 

conduct includes “failure to comply with any federal, state, 

or municipal . . . regulation that pertains to the applicable 

profession.” In this regard, we note the regulatory similarities 

between “the normal standard of care in the State of Nebraska” 

described in § 010.02(32) and the locality rule adopted by 

the Legislature in the Nebraska Hospital-Medical Liability 
- 721 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

Act for medical-negligence actions involving applicable health 

care providers. Neb. Rev. Stat. § 44-2810 (Reissue 2010). The 

Nebraska Hospital-Medical Liability Act requires an expert 

witness on medical malpractice to be familiar with the customary practice among medical professionals in the same or 

similar locality under like circumstances. See, § 44-2810; Bank 

v. Mickels, 302 Neb. 1009, 926 N.W.2d 97 (2019). Our conclusion that § 010.02(32) is valid is supported by the enabling 

legislation and consistent and harmonious with our medical 

malpractice jurisprudence and legislative scheme. Whittle’s 

assignment of error challenging the validity of the regulation 

is without merit.

2. Treatment Was Outside Normal 

Standard of Care

Whittle contends that the evidence did not support the discipline imposed and that in particular, this case would have 

had a different outcome under a different standard of care. 

These contentions are without merit. The Department and the 

district court considered Whittle’s arguments regarding the 

standard of care and properly rejected them as do we. Further, 

even if we were to apply a national standard of care as Whittle 

urges, in light of the evidence, his argument would still be 

unavailing.

We have reviewed the record, and contrary to Whittle’s 

assertion, there is testimony referencing the national standard 

of care, such as that of Webb and Baxter; the kind of testimony Whittle prefers was before the Department. And in this 

regard, we do not find Webb to be disqualified as a witness 

as Whittle suggests. But even in light of all the testimony, the 

Department found a universal and fundamental violation to the 

effect that Whittle had “abandoned a medical evidence-based 

practice.” Such conduct violated national and Nebraska standards of care.

The Department and the district court considered and 

rejected Whittle’s claims suggesting that his approaches 
- 722 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

were on the vanguard of venous medicine nationwide. The 

Department found that “[c]ontrary to [Whittle’s] assertion, this 

is not a case of a ‘philosophical difference’ between parties, 

where entrenched conservatives who do not understand modern 

medicine battle innovators who seek to advance new methods 

of diagnosis and treatment to proactively alleviate suffering 

in patients.” The Department and the district court did not 

select between two reasonable approaches to venous medicine, 

because there was ample evidence that Whittle’s over diagnosis 

and over treatment fell outside the standard of care regardless 

of how it is measured. The record supports the finding that 

Whittle “caused significant physical and emotional harm to his 

patients due to his actions, which caused patients to undergo 

unnecessary and invasive tests, treatments, and follow-ups.” 

On our review for errors on the record, we conclude that the 

State’s expert testimony and the evidence support the district 

court’s conclusion that Whittle’s actions warranted the discipline imposed by the Department.

3. The Disciplinary Proceedings Were Not 

Interjected With Religious Animus

Whittle claims that the disciplinary proceedings against him 

were fueled by religious animus and were not neutral as 

required by the Free Exercise Clause of the First Amendment. 

See Masterpiece Cakeshop v. Colo. Civil Rights, ___ U.S. ___, 

138 S. Ct. 1719, 201 L. Ed. 2d (2018). We find this assignment 

of error to be without merit. Whittle’s claim stems from the 

remarks in Webb’s 17-page written report in which he stated:

I am particularly offended by the previous fliers that he 

has distributed to the Omaha community including “. . . 

curing vascular disease through the hands of God . . .” 

and his current letter head [sic]: “Revealing God’s love 

Through Excellence in Health Care[.]” Both statements 

seem to be far from the truth.

Whittle cross-examined Webb extensively at the hearing. 

Webb testified that his review of the case was not affected 
- 723 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

by Whittle’s religious beliefs and that the statements in his 

report were concerned with the second part of the issue, which 

was “excellence in healthcare,” and also, “curing vascular disease,” which were the more offensive issues. Webb made clear 

that he was not opposed to Whittle’s beliefs. Webb testified he 

was not offended by Whittle’s statements “at all unless they, 

in fact, do not provide excellent health care.” Webb stated that 

Whittle’s statements were of concern “after [he] saw what had 

happened to the patients[’] care in these seven patients that 

I reviewed.”

Whittle analogizes Webb’s statements to the impermissible 

hostility toward religious beliefs in Masterpiece Cakeshop, 

supra, in which the U.S. Supreme Court found that the 

Colorado Civil Rights Commission did not give a baker neutral 

treatment, with members of the commission showing clear and 

impermissible hostility toward the baker’s religious beliefs.

As the district court concluded, “[t]his case is nothing like 

Masterpiece Cakeshop . . . .” Even if one of the State’s witnesses 

was offended with religious statements of Whittle’s branding, 

the viewpoints were not espoused by the Department. During 

the hearings, the only reference to Whittle’s religion was the 

material quoted above in Webb’s report and Whittle’s crossexamination of Webb. The record shows that the Department 

was neutral toward Whittle’s religion or religious beliefs and 

allowed him to explore his concerns fully through crossexamination. The district court’s consideration and resolution 

of Whittle’s religious animus issue was not error. This assignment of error is without merit.

4. The District Court Properly 

Excluded Appellate Briefs

Whittle also claims that the district court erred when it did 

not admit the parties’ briefs into evidence. Whittle urges admission, because he submitted hundreds of pages of briefing in 

lieu of oral argument, which would have been transcribed by a 

court reporter. The district court did not err.
- 724 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

[6,7] Section 84-917 provides that review by the district 

court “shall be conducted by the court without a jury on the 

record of the agency.” We have noted that “‘[i]n a de novo 

review on the record of an agency, the record consists of the 

transcripts and bill of exceptions of the proceedings before the 

agency and facts capable of being judicially noticed pursuant 

to Neb. Evid. R. 201.’” Betterman v. Department of Motor 

Vehicles, 273 Neb. 178, 188, 728 N.W.2d 570, 583 (2007). 

Accordingly, the Administrative Procedure Act does not authorize a district court’s reviewing the decision of an administrative agency to receive additional evidence as urged by Whittle. 

See Betterman, supra. Simply put, a party’s brief may not 

expand the evidentiary record on appeal. See Clarke v. First 

Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 (2017). 

The district court was not empowered to admit the briefs into 

evidence for the purpose urged by Whittle and did not err when 

it refused to receive the written argument into the record.

5. Whittle’s Evidentiary Claims 

Are Meritless

Whittle makes various claims, inter alia, regarding evidentiary rulings, the competency of a witness, and an assertion that 

he was denied due process. With respect to the contention that 

the Department erroneously did not receive medical literature 

supporting his view of proper venous medicine, in the absence 

of an offer of proof and an identification of the material 

excluded, we find no error on the record. To the extent Whittle 

claims he was denied procedural due process because Webb 

in particular was, or appeared to be, biased or represented a 

conflict of interest, this claim is unsupported by the record. 

Whittle’s claim is more properly addressed to credibility than 

admissibility. In this regard, we note that physicians other than 

Webb testified both favorably and unfavorably as to Whittle. So 

there were competing views available to the fact finder.

After extensive cross-examination, evidence showed that 

the Department’s physicians were established in the area, had 
- 725 -

Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

WHITTLE v. STATE

Cite as 309 Neb. 695

more patients than they could accommodate, and were not 

direct competitors of Whittle. There is no evidence they benefited economically by the Department’s decision to discipline 

Whittle for over diagnosis and over treatment.

[8] Procedural due process in an administrative proceeding 

requires “notice, identification of the accuser, factual basis 

for the accusation, reasonable time and opportunity to present 

evidence concerning the accusation, and a hearing before an 

impartial board.” Prokop v. Lower Loup NRD, 302 Neb. 10, 

29-30, 921 N.W.2d 375, 392 (2019). The record in this case 

exceeds 4,000 pages of testimony in addition to thousands of 

pages of exhibits. Whittle provided a vigorous defense to the 

State’s charges, and the Department considered the defense in 

its order. The Department’s order and the subsequent review by 

the district court show no error.

VI. CONCLUSION

As explained above, the regulatory definition of unprofessional conduct in § 010.02(32) is consistent with the enabling 

and other statutes. The Department and the district court 

applied the proper standard of care. The proceedings were 

not interjected with religious animus. No evidentiary ruling 

resulted in reversible error, and Whittle was afforded due process. The professional discipline and sanction against Whittle 

are supported by evidence that Whittle over diagnosed and 

over treated numerous patients in his venous medicine practice. 

Finding no error on the record, we affirm the order of the district court which affirmed the 6-month suspension of Whittle’s 

license to practice medicine.

Affirmed.