Joseph Edward Rich, M.D. v. Tennessee Board of Medical Examiners

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

June 3, 2011 Session

JOSEPH EDWARD RICH, M.D. v. TENNESSEE BOARD OF MEDICAL

EXAMINERS

Appeal by Permission from the Court of Appeals, Middle Section

Chancery Court for Davidson County

No. 08-229-II Carol McCoy, Chancellor

No. M2009-00813-SC-R11-CD - Filed October 10, 2011

This is an appeal from an administrative hearing wherein the Tennessee Board of

Medical Examiners suspended a physician’s medical license for one year and imposed other

conditions after finding that, among other things, the physician had violated Tennessee Code

Annotated sections 63-6-214(b)(1),(4), and (12) (2010). Upon review, the trial court

affirmed the Board’s ruling; however, because the Board failed to articulate the applicable

standard of care in its deliberations, the Court of Appeals reversed the Board’s ruling. We

agree with the Court of Appeals that the Board was required to articulate the standard of care

in its deliberations. Therefore, we vacate the ruling of the trial court to the extent that it

affirms the Board’s decision that the physician violated Tennessee Code Annotated sections

63-6-214(b)(1),(4), and (12). However, rather than reversing the Board’s decisions, we are

remanding the matter to the Board and instructing it to conduct deliberations based on the

existing record and articulate the applicable standard of care as required by the statute.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Chancery Court

Affirmed in Part and Vacated in Part; Cause Remanded

S HARON G. L EE, J., delivered the opinion of the Court, in which C ORNELIA A. C LARK, C.J.,

G ARY R. W ADE , and W ILLIAM C. K OCH, JR., JJ., joined. J ANICE M. H OLDER, J., filed a

dissenting opinion.

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Associate Solicitor

General; and Sara E. Sedgwick, Senior Counsel, for the appellant, Tennessee Board of

Medical Examiners.

James C. Bradshaw, Nashville, Tennessee, and Jeffrey B. Levens, Chicago, Illinois, for the

appellee, Joseph Edward Rich, M.D.

OPINION

Facts and Procedural History

In August 1995, the Tennessee Board of Medical Examiners (“the Board”) granted

Dr. Joseph Edward Rich, M.D., a conditional license to practice medicine in Tennessee. Dr.

Rich opened the Center for Environmental and Integrative Medicine in Knoxville, eventually

including in his practice the administration of chelation therapy,1 intravenous hydrogen

peroxide therapy,2 and the use of methadone to treat patients suffering from opioid

dependency.

In June 2005, the Division of Health Related Boards of the Tennessee Department of

Health filed a Notice of Charges against Dr. Rich, which were subsequently amended to

allege that Dr. Rich had committed acts or omissions constituting grounds for disciplinary

action under Tennessee Code Annotated §§ 63-6-214(b)(1), (4), (12) and (14);3 rules 0880-

1

“Chelation therapy” is defined as “the use of a chelator [binding agent] (as EDTA

[ethylenediaminetetraacetic acid]) to bind with a metal (as lead or iron) in the body to form a chelate so that

the metal loses its chemical effect (as toxicity or physiological activity). http://merriam-

webster.com/dictionary/chelation%20therapy. (last visited Aug. 18, 2011). Donna L. Seger, M.D. testified

in this case that chelation therapy involves the intravenous administration of a drug that “kind of grabs the

metals, pulls them out of your body - - out of the tissues, and then excretes them into the urine.”

2

“Hydrogen peroxide therapy” is defined as a type of oxygen/ozone therapy in which

hydrogen peroxide [is] administered via gas or water to kill disease

microorganisms, improve cellular function, and promote the healing of

damaged tissues. The rationale behind bio-oxidative therapies, as they are

sometimes known, is the notion that as long as the body’s needs for

antioxidants are met, the use of certain oxidative substances will stimulate

the movement of oxygen atoms from the bloodstream to the cells. With

higher levels of oxygen in the tissues, bacteria and viruses are killed along

with defective tissue cells. The healthy cells survive and multiply more

rapidly. The result is a stronger immune system. . . . In the 1920’s, an

American physician named William Koch experimented with hydrogen

peroxide as a treatment for cancer. He left the United States after a legal

battle with the FDA.

http://medical-dictionary.thefreedictionary.com/Ozone+Therapy. (last visited Aug. 18, 2011).

3

In pertinent part, Tennessee Code Annotated section 63-6-214(b) authorizes the Board to exercise

its disciplinary authority upon the following grounds:

(continued...)

-2-

02-.14(6)(c) and (e)(3) of the Official Compilation of the Rules and Regulations of the

State of Tennessee;4 and 21 U.S.C. § 823(g)(1) (2000).5 During the lengthy hearing that

3

(...continued)

(1) Unprofessional, dishonorable or unethical conduct;

....

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

ignorance, negligence or incompetence in the course of medical practice;

....

(12) Dispensing, prescribing or otherwise distributing any controlled

substance or any other drug not in the course of professional practice, or

not in good faith to relieve pain and suffering, or not to cure an ailment,

physical infirmity or disease, or in amounts and/or for durations not

medically necessary, advisable or justified for a diagnosed condition;

....

(14) Dispensing, prescribing or otherwise distributing any controlled

substance or other drug to any person in violation of any law of the state or

of the United States.

4

Rule 0880-02-.14(6)(c) of the Rules of the Tennessee Board of Medical Examiners provides as

follows:

If a physician provides medical care for persons with intractable pain, with

or without the use of opiate medications, to the extent that those patients

become the focus of the physician’s practice the physician must be

prepared to document specialized medical education in pain management

sufficient to bring the physician within the current standard of care in that

field which shall include education on the causes, different and

recommended modalities for treatment, chemical dependency and the

psycho/social aspects of severe, chronic intractable pain.

Rule 0880-02-.14(e)(3) further provides as follows:

Prescribing, ordering, administering, or dispensing dangerous drugs or

controlled substances for pain will be considered to be for a legitimate

medical purpose if based upon accepted scientific knowledge of the

treatment of pain, including intractable pain, not in contravention of

applicable state or federal law, and if prescribed, ordered, administered, or

(continued...)

-3-

followed, the Department introduced the expert testimony of Donna L. Seger, M.D., who

testified as to the standard of care for diagnosing heavy metal toxicity and the affidavit

4

(...continued)

dispensed in compliance with the following guidelines where appropriate

and as is necessary to meet the individual needs of the patient:

(i) After a documented medical history, which may be provided orally or

in writing by the patient, and a physical examination by the physician

providing the medication including an assessment and consideration of the

pain, physical and psychological function, any history and potential for

substance abuse, coexisting diseases and conditions, and the presence of a

recognized medical indication for the use of a dangerous drug or controlled

substance;

(ii) Pursuant to a written treatment plan tailored for the individual needs of

the patient by which treatment progress and success can be evaluated with

stated objectives such as pain relief and/or improved physical and

psychosocial function. Such a written treatment plan shall consider

pertinent medical history and physical examination as well as the need for

further testing, consultations, referrals, or use of other treatment modalities;

(iii) The physician should discuss the risks and benefits of the use of

controlled substances with the patient or guardian;

(iv) Subject to documented periodic review of the care by the physician at

reasonable intervals in view of the individual circumstances of the patient

in regard to progress toward reaching treatment objectives which takes into

consideration the course of medications prescribed, ordered, administered,

or dispensed as well as any new information about the etiology of the pain;

(v) Complete and accurate records of the care provided as set forth in

parts (i)-(iv) of this paragraph should be kept. When controlled substances

are prescribed, names, quantities prescribed, dosages, and number of

authorized refills of the drugs should be recorded, keeping in mind that pain

patients with a history of substance abuse or who live in an environment

posing a risk for medication misuse or diversion require special

consideration. Management of these patients may require closer

monitoring by the physician managing the pain and consultation with

appropriate health care professionals.

5

21 U.S.C. § 823(g)(1) provides in pertinent part as follows:

[P]ractitioners who dispense narcotic drugs to individuals for maintenance

treatment or detoxification treatment shall obtain annually a separate

registration for that purpose.

-4-

testimony of Benjamin Johnson, M.D., describing the standard of care for treating a patient

with methadone. The Department also submitted patient records from Dr. Rich’s office

documenting his diagnosis and treatment of patients with methadone. Dr. Rich testified in

his own behalf, but did not present any witnesses. After deliberation, the Board 6 issued its

final order setting forth findings of fact that included the following:

• In June 1999, the Board placed Dr. Rich’s medical license on two years probation

with specified conditions because he failed to maintain the advocacy of another doctor and

the Tennessee Medical Foundation in accordance with the conditions of his Tennessee

licensure and because he instructed his eighteen-year-old receptionist to fill out pre-signed

prescriptions for Phentermine and Fenfluromine for patients while he was on vacation. In

May 2002, the Board ratified an agreed order finding that Dr. Rich had violated the

conditions of his probation and placed further conditions on his practice.7

• Dr. Rich falsely claimed on the Center for Environmental and Integrative Medicine’s

website that he had been approved for participation in a National Institute of Health study

identified as “Trial to Access Chelation Therapy.”

• Dr. Rich treated patient “M.H.” from August 2003 to March 2004. Lab tests ordered

by Dr. Rich dated August 15, 2003, showed that M.H. had a high blood triglyceride level of

232 mg/dL, a high blood glucose level of 147 mg/dL, and blood pressure of 164/88. A

diagnostic laboratory report ordered by Dr. Rich dated August 21, 2003, shows that M.H. had

6

The Tennessee Medical Practice Act establishes the Board of Medical Examiners, Tennessee Code

Annotated section 63-6-101(a)(1) (2010), and imposes upon it the duty of conducting disciplinary

hearings. Tenn. Code Ann. § 63-6-101(a)(3). Upon establishment of specified grounds, Tennessee Code

Annotated section 63-6-214(a) authorizes the Board to

(1) Deny an application for a license to any applicant who applies for the

same through reciprocity or otherwise;

(2) Permanently or temporarily withhold issuance of a license;

(3) Suspend, or limit or restrict a previously issued license for such time

and in such manner as the board may determine;

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

or licensee, including, but not limited to, informal settlements, private

censures and warnings, as the board in its discretion may deem proper; or

(5) Permanently revoke a license.

7

By agreed order of September 17, 2002, the Board terminated Dr. Rich’s probation of two years

with all conditions imposed on his practice to remain in full force.

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a post-provocation urine level8 with six elements beyond the reference range of the report,

but acknowledges that “[e]lement reference ranges were developed from a healthy population

under non-provoked/non-challenged conditions,” that “[p]rovocation with challenge

substances is expected to raise the urine level of some elements,” and that “[t]his test has not

been cleared or approved by the U.S. Food and Drug Administration.” Dr. Rich diagnosed

M.H. with heavy metal toxicity and treated him on several occasions with both chelation

therapy and hydrogen peroxide therapy between September 2003 and March 2004. A

diagnostic report dated February 2004 shows that M.H.’s blood triglyceride level had

increased to 242 mg/dL and that his blood glucose level had increased to 297

mg/dL. Despite the fact that in August of 2003, M.H. had noted on his initial health history

a current medication history that included insulin, oral anti-hyperglycemic medications, an

anti-hypertensive agent, and a medication for hyperlipidemia, Dr. Rich did not document that

any of these medications were prescribed for M.H. during the time of his treatments, and he

“failed to document whether or not he advised M.H. to be treated and/or with or continue

treatment with these medications by another physician.” Finally, although Dr. Rich stated

in an interview with a Department investigator in March of 2003, that he always conducts

an electrocardiogram (“EKG”) on patients he treats with chelation therapy, at no time during

the treatment of M.H. with chelation therapy did he document conducting or interpreting an

EKG and there is no copy of an EKG included in the medical record.

• Dr. Rich treated patient “R.H.” from January 2001 to February 2004. In January

2001, R.H. indicated a medical history of hypertension, epilepsy, and high cholesterol. In

April 2002, a pre-provocation urine analysis ordered by Dr. Rich indicated that none of the

elements tested for were beyond the reference range. Despite these normal test results and

without documenting that the test was repeated with different results, in May 2002, Dr. Rich

diagnosed R.H. with heavy metal toxicity and documented chelation therapy as the treatment

plan. Thereafter, from May 30, 2002, to December 2, 2003, he provided R.H. with

approximately 49 chelation treatments. In March 2003, a hair analysis indicated the presence

of multiple heavy metals beyond the reference range, and a January 2004 hair analysis

indicated that the level had increased in approximately fourteen categories. From September

9, 2003, through March 2, 2004, Dr. Rich provided R.H. with approximately six intravenous

hydrogen peroxide treatments. On March 2, 2004, although R.H. complained of feeling tired

and having pressure in his chest, Dr. Rich failed to document measuring R.H.’s heart and

respiration rates. An unconfirmed EKG on the same date indicated an inferior myocardial

8

Dr. Seger testified that “provoked” urine testing entails the administration of drugs (usually the

same drug used to chelate) that cause metals to be released through the urine, that anyone given a provoked

urine test would show metals in their urine and that “there hasn’t been a standard of normal setup [sic] for

provoked testing.” Dr. Seger testified that the standard for diagnosis of heavy metal toxicity is a non-

provoked urine test and then blood testing.

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infarction, but Dr. Rich failed to document a confirmed or alternative interpretation of the

EKG. Dr. Rich, however, provided R.H. with a hydrogen peroxide treatment on that date,

but the treatment was terminated because of pain at the infusion site.

• Dr. Rich treated patient “R.S.” from January 7, 2004, to March 9, 2004. On R.S.’s

initial progress note, his medical history included attention deficit hyperactivity disorder,

irritable bowel syndrome, and depression. Although Dr. Rich did not conduct a physical

exam of R.S., he made a preliminary diagnosis of heavy metal toxicity. A laboratory report

ordered by Dr. Rich dated January 23, 2004, showed that R.S. had a post-provocative urine

level with three elements beyond the reference ranges stated in the report. However, the

report noted that the “[e]lement reference ranges were developed from a healthy population

under non-provoked/non-challenged conditions” and that “[p]rovocation with challenge

substances is expected to raise the urine level of some elements. . . .” Despite these specified

qualifying conditions, on February 5, 2004, Dr. Rich diagnosed R.S. as having heavy metal

toxicity and decreased oxidative function. From February 12, 2004, through March 9, 2004,

he provided R.S. with six chelation treatments. When the treatment began on February 12,

2004, R.S. had a blood triglyceride level of 122 mg/dL and a calcium level of 9.1 mg/dL,

both within the reference range, but on March 2, 2004, R.S. had a blood triglyceride level of

233 mg/dL and a blood calcium level of 10.5 mg/dL, both designated as high on the

laboratory report. Dr. Rich failed to document that he consulted with or advised R.S. that

during the course of treatment his triglyceride and calcium levels had increased to a high

level nor did Dr. Rich make any medical recommendations or initiate any treatments in light

of these changes. Moreover, although a February 24, 2004, progress note states “severe

depression” and “father wants a consult with Dr. Rich today – wants to know what to do for

patient about depression,” there is no documentation that Dr. Rich consulted with or advised

either R.S. or his father or that he made any medical recommendations or initiated treatments

until March 9, 2004, when he provided R.S. with samples of the antidepressant Tofranil.

• Although Dr. Rich did not at any relevant time have a license or certificate that

allowed him to provide detoxification treatment programs using methadone HCL, he treated

each of twelve additional identified patients in his clinic’s “detoxification program” with

multiple prescriptions for methadone. As to eleven of those patients, he also failed to obtain

copies of any medical records showing that any of them was suffering from any illness or

injury before prescribing methadone.

The Board concluded that these facts describing Dr. Rich’s protocol with respect to

M.H., R.H., R.S., and the other twelve patients established the following:

• Dr. Rich engaged in “[u]nprofessional, dishonorable or unethical conduct,” Tenn.

Code Ann. § 63-6-214(b)(1), and “[g]ross malpractice or a pattern of continued or repeated

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

Code Ann. § 63-6-214(b)(4);

• With respect to M.H., R.H., and R.S., Dr. Rich

[d]ispens[ed], prescrib[ed] or otherwise distribut[ed] [a]

controlled substance or . . . other drug not in the course of

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

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

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

necessary, advisable or justified for a diagnosed condition.

Tenn. Code Ann. § 63-6-214(b)(12) and had “[d]ispens[ed], prescrib[ed], or otherwise

distribut[ed] [a] controlled substance or other drug to [a] person in violation of [a] law of the

United States.” Tenn. Code Ann. § 63-6-214(b)(14).

• Dr. Rich’s treatment of the other twelve patients constituted grounds for disciplinary

action under rules 0880-02-.14(6)(c) and (e)(3) of the Official Compilation of the Rules and

Regulations of the State of Tennessee and 21 U.S. C. § 823(g)(1).

Noting Dr. Rich’s “multiple disciplinary violations over a long period, in addition to

[his] lack of regard for previous board actions which demonstrates a significant failure in his

judgment,” the Board suspended his license for one year and ordered him to be evaluated by

the Vanderbilt Comprehensive Assessment Program for Professionals and comply with its

recommendations, complete a Board-approved comprehensive course in pain management,

pay the costs incurred in the prosecution of his case, and ensure the transfer of all of his

patients to other medical providers.

Dr. Rich petitioned the Chancery Court for Davidson County pursuant to Tennessee

Code Annotated section 4-5-3229 for review of the Board’s decision. After the Chancery

Court affirmed the Board’s judgment, Dr. Rich appealed to the Court of Appeals. The Court

of Appeals affirmed the Board’s findings that Dr. Rich had violated Tennessee Code

Annotated section 63-6-214(b)(14), rule 0880-02-.14(6)(c) and (e)(3) of the Official

Compilation of the Rules and Regulations of the State of Tennessee and 21 U.S.C. §

9

The Tennessee Uniform Administrative Procedures Act is codified at Tennessee Code Annotated

sections 4-5-101 to 4-5-325 (2005). Section 4-5-322(a)(1) governs the judicial review of the decision of a

state agency such as the Board, providing that “[a] person who is aggrieved by a final decision in a contested

case is entitled to judicial review under this chapter, which shall be the only available method of judicial

review.”

-8-

823(g)(1). However, upon determining that the Board was required by Tennessee Code

Annotated section 63-6-214(g) to articulate the applicable standard of care in its deliberations

and that it had failed to do so, the Court of Appeals reversed the Board’s ruling that Dr. Rich

had violated subsections (1), (4), and (12) of Tennessee Code Annotated section 63-6-214(b),

and remanded to the Board for reconsideration of sanctions. We granted the Board’s

application for permission to appeal and address the issue of whether the Board was required

by Tennessee Code annotated section 63-6-214(g) to articulate the applicable standard of

care in its deliberations.

The sole issue we address is whether Tennessee Code Annotated section 63-6-214(g)

required the Board to articulate the applicable standard of care in its deliberations with regard

to whether Dr. Rich violated Tennessee Code Annotated section 63-6-214(b)(1), (4), and

(12).10

Analysis

The issue before us is one of statutory construction. The rules of statutory

construction are well settled and require that we implement legislative intent without

broadening or restricting the statute beyond its intended scope. Houghton v. Aramark Educ.

Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). We look to “the natural and ordinary meaning

of the statutory language within the context of the entire statute without any forced or subtle

construction that would extend or limit the statute’s meaning.” State v. Flemming, 19

S.W.3d 195, 197 (Tenn. 2000); see In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn.

10

In oral argument before this Court, Dr. Rich’s counsel stated that Dr. Rich is requesting that we

affirm the judgment of the Court of Appeals as to its reversal of the Board’s ruling that Dr. Rich violated

Tennessee Code Annotated section 63-6-214(b)(1), (4), and (12) and that he is not requesting that we reverse

the Board’s ruling that Dr. Rich violated Tennessee Code Annotated section 63-6-214(b)(14); rules 0880-02-

.14(6)(c) and (e)(3) of the Official Compilation of the Rules and Regulations of the State of Tennessee

and 21 U.S.C. § 823(g)(1). At oral argument, Dr. Rich’s attorney conceded that Dr. Rich was not seeking

review of the Board’s finding that he violated the four provisions not related to a standard of care:

Counsel: I’m asking that Your Honors affirm the ruling of the Court of

Appeals which held that the Board is required to articulate the standard of

care if it is going to rule that a licensee has violated it. It’s nothing more

than the same right that -

Chief Justice Clark: But then your client still stands found to have four

other charges, right? So, you’re not asking that these be reversed?

Counsel: No, Your Honor. No.

-9-

2007) (“Where the statutory language is not ambiguous, . . . the plain and ordinary meaning

of the statute must be given effect.”). We “‘presume that the legislature says in a statute what

it means and means in a statute what it says there.’” Gleaves v. Checker Cab Transit Corp.,

15 S.W.3d 799, 803 (Tenn. 2000) (quoting BellSouth Telecomms., Inc. v. Greer, 972 S.W.2d

663, 673 (Tenn. Ct. App. 1997)). When we are called upon to construe the meaning of a

statute, our review is de novo without deference to the decision of the court below. Estate

of French v. Stratford House, 333 S.W.3d 546, 554 (Tenn. 2011).

The statute at issue in this case, Tennessee Code Annotated section 63-6-214(g),

provides as follows:

For purposes of actions taken pursuant to subdivisions (b)(4),

(12) and (13) or any other subsection in which the standard of

care is an issue, any Tennessee licensed physician serving as a

board member, hearing officer, designee, arbitrator or mediator

is entitled to rely upon that person’s own expertise in making

determinations concerning the standard of care and is not subject

to voir dire concerning such expertise. Expert testimony is not

necessary to establish the standard of care. The standard of care

for such actions is a statewide standard of minimal competency

and practice that does not depend upon expert testimony for its

establishment. However, to sustain actions based upon a

violation of this standard of care, the board must, in the absence

of admissions or other testimony by any respondent or such

respondent’s agent to the effect that the standard was violated,

articulate what the standard of care is in its deliberations.

(Emphasis added).

Dr. Rich was charged with violation of the standard of care by failing to comply with

the requirements of Tennessee Code Annotated sections 63-6-214(b)(1),(4), and (12). Our

review of the record confirms that the Board, during its deliberations, did not articulate the

applicable standard of care as required by Tennessee Code Annotated section 63-6-

214(g). Siddall v. Tenn. Bd. Of Med. Exam’rs., No. M2004-02767-COA-R3-CV, 2006 WL

1763665, at *3 (Tenn. Ct. App. June 27, 2006) (“Although [the Board] is not required to

present expert testimony, it must still articulate a standard of care to establish a statewide

standard of minimum competency and practice.”).

The Board asserts that under subsection (g), it is only required to articulate the

standard if there is no expert testimony as to the applicable standard of care and that it

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submitted the testimony of two experts establishing such standard. The language of the

statute does not support the construction urged by the Board. The statute’s language is clear

and unambiguous. According to its plain terms, we construe it to mean what it says – that

for purposes of any action taken based upon a subsection where the standard of care is an

issue, “the board must . . . articulate what the standard of care is in its deliberations.” Tenn.

Code Ann. § 63-6-214(g). The statute specifies only one exception to this requirement –

“admission or other testimony by any respondent or such respondent’s agent to the effect that

the standard of care was violated.” Id. Here, The standard of care was an issue and Dr. Rich

did not admit or testify that he ever violated the standard of care. Applying the canon of

construction “expressio unius est exclusio alterius,” which holds that the expression of one

thing implies the exclusion of others, we infer that had the legislature intended to allow the

additional exception asserted by the Board, it would have included specific language to that

effect. See Amos v. Metro. Gov’t of Nashville & Davidson Cnty., 259 S.W.3d 705, 715

(Tenn. 2008).

The requirement that the Board articulate the applicable standard of care in its

deliberations serves a twofold purpose. It gives guidance to other physicians practicing

medicine in this state as to the standard to which they are expected to conform and informs

the reviewing court of the basis for the Board’s decision. Articulation of the adopted

standard of care is critical in cases where the Department and the respondent physician have

not agreed as to the applicable standard of care, and have submitted conflicting expert

testimony in that regard. And even where only one party has presented expert testimony to

establish the applicable standard, the Board may reject such testimony and determine a

different standard based on its own expertise. As this Court has recognized,

“[e]xpert opinions are not ordinarily conclusive in the sense that

they must be accepted as true on the subject of their testimony,

but are generally regarded as purely advisory in character; the

[triers of fact] may place whatever weight they choose upon

such testimony and may reject it, if they find that it is

inconsistent with the facts in the case or otherwise

unreasonable.”

Cocke Cnty. Bd. of Highway Comm’rs v. Newport Util. Bd., 690 S.W.2d 231, 235 (Tenn.

1985) (quoting Am. Jur. 2d Expert and Opinion Evidence § 138 (1967)); accord Gibson v.

Ferguson, 562 S.W.2d 188, 189-90 (Tenn. 1976). Moreover, the statute explicitly states that

“[e]xpert testimony is not necessary to establish the standard of care” and that “any

Tennessee licensed physician serving as a board member . . . is entitled to rely upon that

person’s own expertise in making determinations concerning the standard of care.” Tenn.

Code Ann. § 63-6-214(g). Whether the Board adopts the standard of care advanced by an

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expert witness or independently determines the standard of care based on its own expertise,

the Board must articulate the standard upon which its decision is based to allow the

reviewing court to know the standard and assess the validity of the Board’s

decision. Similarly, when the Board fails to designate the applicable standard of care, a

doctor seeking subsequent review of the Board’s decision is placed at an unfair disadvantage;

unless it is clear what standard the doctor is held to have violated, he or she cannot properly

assess the Board’s conclusions in that regard and prepare an effective argument on appeal. In

Webb v. State ex rel. Ariz. Bd. of Med. Exam’rs, 48 P.3d 505, 510 (Ariz. Ct. App. 2002), the

Arizona Court of Appeals, reviewing the board of medical examiners’ censure of a physician

for unprofessional conduct, recognizing these concerns, stated as follows:

Not only must the Board identify the standard and articulate the

alleged deviation in order to provide the physician under

investigation a fair opportunity to respond to a charge of

negligence; it must do so in order to provide a reviewing court

an opportunity for meaningful review. “Without clearly

articulated standards as a backdrop against which the court can

review discipline, the judicial function is reduced to serving as

a rubber-stamp for the Board’s action.” Woodfield v. Bd. of

Prof’l Discipline of State Bd. of Med., 905 P.2d 1047, 1057

(Idaho Ct. App. 1995).

While we hold that the Board erred in failing to articulate the applicable standard of

care in its deliberations, this error does not warrant reversal of the Board’s ruling that Dr.

Rich violated Tennessee Code Annotated § 63-6-214(b)(1), (4), and (12). This case does not

involve an error or deficiency in the administrative hearing or the facts, but rather an error

of law and a deficiency in the record. A reviewing court may remand a case to an

administrative agency where the agency has committed an error of law or the record

presented to the court is inadequate. 73A C.J.S. Public Administrative Law and Procedure

§ 461 (2004). This procedure does not require a new hearing by the administrative agency,

but instead allows the agency to correct noted legal deficiencies based on the existing

administrative record. See Lewis v. Bedford Cnty. Bd. Of Zoning Appeals, 174 S.W.3d 241,

247 (Tenn. Ct. App. 2004) (holding that “[w]here the evidence has been preserved but the

board or commission has not exercised its responsibility in accordance with legal

requirements, a remand to the board for a hearing based on the existing record of the

evidence is appropriate”); Hoover, Inc. v. Metro. Bd. of Zoning Appeals for Davidson Cnty.,

955 S.W.2d 52, 55 (Tenn. Ct. App. 1997) (remanding case to agency with directions to

conduct a new hearing based on the existing record without introduction of additional factual

evidence and noting that “[r]eopening the record at this late stage would only give the parties

a second bite at the apple”). Accordingly, the error of the Board in failing to articulate the

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applicable standard of care is properly resolved by remand to the Board whereupon it is

directed to conduct deliberations based on the existing record and articulate during the

deliberations the applicable standard of care as required by the statute.

Conclusion

We hold that the Board was required by Tennessee Code Annotated section 63-6-

214(g) to articulate the applicable standard of care in its deliberations. The error warrants

remand for correction, rather than reversal, of any of the Board’s findings of

violations. Accordingly, we vacate the judgment of the trial court affirming the Board’s

findings that Dr. Rich violated Tennessee Code Annotated section 63-6-214(b)(1), (4), and

(12). We further vacate the judgment of the Court of Appeals to the extent it reverses the

Board’s findings that Dr. Rich violated Tennessee Code Annotated section 63-6-214(b)(1),

(4), and (12). Otherwise, the judgment of the Court of Appeals is affirmed, and the cause is

remanded to the Board with instructions that it conduct deliberations based on the existing

record and articulate the applicable standard of care in its deliberations. Costs are assessed

to the Tennessee Board of Medical Examiners, for which execution may issue if necessary.

______________________________

SHARON G. LEE, JUSTICE

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