Radonda Vaught v. Tennessee Board of Nursing

03/20/2025

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 4, 2025 Session

RADONDA VAUGHT v. TENNESSEE BOARD OF NURSING

Appeal from the Chancery Court for Davidson County

No. 21-0948-I Patricia Head Moskal, Chancellor

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No. M2023-01816-COA-R3-CV

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This is an appeal arising from a decision by the Tennessee Board of Nursing (“the Board”)

to revoke a registered nurse’s license after she retrieved the wrong medication from an

automatic dispenser and administered it to a hospital patient, resulting in the patient’s

death. The Tennessee Department of Health (“the Department”) brought an initial

complaint against the nurse concerning the incident, which it first determined did not merit

further action but then later re-opened. Simultaneously, the nurse faced criminal

prosecution and was ultimately convicted of two criminal charges related to the incident.

Following a contested hearing in the administrative proceedings, the Board revoked the

nurse’s license. The nurse sought judicial review of this decision pursuant to Tennessee’s

Uniform Administrative Procedure Act. During the judicial review proceeding, the nurse

raised, for the first time, the doctrines of res judicata and collateral estoppel as affirmative

defenses to the Department’s complaint. In response, the Board argued that the nurse had

waived these affirmative defenses because she had failed to raise them during the

administrative proceedings. While the petition for judicial review remained pending, the

criminal case moved to the sentencing phase. A doctor, who had testified as an expert

witness in both the contested administrative proceeding and the criminal case, wrote a letter

of support for the nurse to the criminal court judge in preparation for her sentencing. When

the nurse learned of the doctor’s supportive letter, she moved the trial court to remand the

instant case to the Board so that the Board could consider the contents of the letter in its

decision. The trial court declined to remand the matter to the Board or to allow the nurse

to present the letter to the Board as additional evidence. The trial court subsequently

entered a final order, determining that the nurse had not waived the affirmative defenses of

res judicata or judicial estoppel but declining to reverse the Board’s decision on those

grounds. The trial court then affirmed the Board’s decision to revoke the nurse’s license.

The nurse has appealed. Upon review, we determine that the nurse waived the affirmative

defenses of res judicata and collateral estoppel because she failed to present those doctrines

during the administrative proceedings Accordingly, we reverse the trial court’s

determination concerning waiver of those defenses. In all other respects, we affirm.

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

Affirmed in Part, Reversed in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D. BENNETT

and JEFFREY USMAN, JJ., joined.

Peter J. Strianse, Nashville, Tennessee, for the appellant, Radonda Vaught.

Jonathan Skrmetti, Attorney General and Reporter; J. Matthew Rice, Solicitor General; and

Ryan Gallagher and T. Eric Winters, Assistant Attorneys General, for the appellee,

Tennessee Board of Nursing.

OPINION

1. Factual and Procedural Background

This appeal involves a petition for judicial review of a Board decision, which was

filed pursuant to the Uniform Administrative Procedure Act, codified at Tennessee Code

Annotated §§ 4-5-101, et seq. (“UAPA”). The underlying facts are largely undisputed.

The petitioner, Radonda Vaught, worked as a registered nurse in the neurosurgical

intensive care unit (“neuro-ICU”) at Vanderbilt University Medical Center (“VUMC”)

from 2015 to 2018. On December 26, 2017, Ms. Vaught was called upon to administer a

physician-prescribed, intravenous (“IV”), anti-anxiety sedative known as “Versed” to a

patient at VUMC in preparation for the patient to undergo a positron emission tomography

(“PET”) scan. Ms. Vaught was not the patient’s primary nurse but was serving as the

“Help-All” nurse in the hospital’s neuro-ICU at the time.

When Ms. Vaught attempted to retrieve the Versed medication through an

“automated dispensing cabinet” located in the neuro-ICU, she was unable to find the drug

in the patient’s profile. Ms. Vaught overrode the patient’s profile to search for Versed in

the dispensing cabinet, a procedure that Ms. Vaught describes as “common” practice for

registered nurses. As the Board ultimately determined in its final order, Ms. Vaught “typed

in at least the letters ‘VE’ in the override function of the automatic dispensing cabinet [after

which a] medication with the letters ‘VE’ popped up and [Ms. Vaught] removed the

medication out of the cabinet.”1 However, the drug that appeared in the search was not

Versed but was instead a “paralytic drug” known as “Vecuronium.” Ms. Vaught pulled

the Vecuronium from the dispenser and, believing it to be Versed, administered it to the

patient without first looking at the medication to verify that it was, indeed, Versed.

1

Ms. Vaught testified at the Board hearing that she “would have typed in the entire name of the drug” that

she was looking to override and therefore “would have typed in Versed.” However, at the conclusion of

the hearing, Ms. Vaught agreed, without objection, to the wording of the Board’s final order.

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According to Ms. Vaught, she did not stay to monitor the patient after administering the

IV because she was told by another nurse that monitoring was not necessary. The patient

subsequently died due to complications related to the administration of Vecuronium

through the IV.

As a result of this incident, a complaint was filed against Ms. Vaught in 2018, but

after an internal investigation, which involved a review by the Board’s consultant and a

staff attorney, the Department determined that the matter did not merit further action. The

Department communicated this decision to Ms. Vaught by letter dated October 23, 2018,

which indicated, inter alia, that the decision was “not a disciplinary action.” However, in

December 2018, the Department reopened its investigation upon a new complaint based

upon the same underlying facts. The Tennessee Bureau of Investigation (“TBI”)

concomitantly initiated a criminal investigation of Ms. Vaught’s actions in administering

Vecuronium to the patient. On September 27, 2019, the Department filed a notice of

charges against Ms. Vaught, alleging that she had engaged in unprofessional conduct,

failed to maintain accurate records for each patient, and abandoned or neglected a patient

requiring nursing care.

In July 2021, the Board conducted a two-day hearing on the charges brought by the

Department against Ms. Vaught. During the hearing, Dr. Terry Bosen, a pharmacist and

program director of the Medication Safety Program at VUMC, testified that nurses like

Ms. Vaught had the ability to override the automatic medication dispenser to access

medications but stated that this ability came with an “expectation in an override situation

that the nurse or clinician is verifying against the order” for whether the correct medication

has been dispensed by the machine. Ms. Vaught testified before the Board and admitted

that she “did not look at the vial to read what it was” before dispensing Vecuronium to the

patient. Following the hearing, the Board revoked Ms. Vaught’s license to practice as a

registered nurse and found her guilty of unprofessional conduct, failure to maintain a

record, and abandonment or neglect of a patient requiring nursing care. The Board also

assessed a fine of $3,000.00 against Ms. Vaught. The Board memorialized this decision in

a final order entered on July 23, 2021.

In September 2021, Ms. Vaught sought judicial review of the Board’s decision in

the Davidson County Chancery Court (“trial court”) pursuant to Tennessee Code

Annotated § 4-5-322, which is the UAPA section that governs judicial review of agency

decisions. Ms. Vaught claimed that (1) the Department’s decision to close the first

complaint against her in 2018 barred the subsequent charges under the principles of res

judicata or collateral estoppel and (2) the Board’s decision to revoke her license was

“unlawful and flawed” because it was made on an incomplete record.

During the pendency of the judicial review before the trial court, a jury convicted

Ms. Vaught of two criminal offenses related to the same underlying facts, including one

charge of negligent homicide. Following that conviction, the criminal case moved to the

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sentencing phase. While Ms. Vaught awaited her sentencing hearing, numerous

individuals from the medical profession wrote letters of support for Ms. Vaught to the

criminal court judge. One such letter was written by Dr. Bosen, the doctor who had

testified as an expert witness before the Board. When Ms. Vaught learned of Dr. Bosen’s

letter, dated May 6, 2022, she moved to remand the judicial review proceedings in this case

from the trial court back to the Board, pursuant to § 4-5-322(h) of the UAPA. In the motion

for remand, Ms. Vaught argued that Dr. Bosen’s May 6, 2022 letter amounted to “newly

discovered evidence” that the Board should consider. In the letter, Dr. Bosen had written

that Ms. Vaught had not acted with “intentional neglect” when she administered

Vecuronium to the patient. According to Dr. Bosen, certain override limitations

programmed into the automatic medicine dispenser could have caused a “nurse or clinician

to select the wrong medication by confirmation bias expecting to see something that isn’t

there.”

On September 13, 2022, the trial court denied Ms. Vaught’s motion to remand,

which the court treated as a motion for leave to present additional evidence to the Board.

The trial court concluded that Dr. Bosen’s letter did not constitute material evidence and

that even if it did, Ms. Vaught had not presented good reasons for failing to present the

additional evidence during the administrative hearing, as required by § 4-5-322(e) of the

UAPA. The judicial review proceeded to a hearing before the trial court.

In an order entered on November 27, 2023, the trial court affirmed the Board’s

decision to revoke Ms. Vaught’s nursing license. In so ordering, the trial court first

determined that Ms. Vaught had not waived her contentions of res judicata and collateral

estoppel by failing to raise them as affirmative defenses in her responsive pleadings before

the Board. This decision notwithstanding, the court rejected Ms. Vaught’s substantive

arguments relative to those doctrines. The court reasoned that the Department’s initial

decision “not to pursue charges against Ms. Vaught was not an adjudication in an adversary

proceeding and not a final judgment on the merits.” The court further determined that Ms.

Vaught and the Department did not “litigate” any issues concerning the first complaint and

that “only the Board of Nursing, not the Department, acts in a quasi-judicial capacity[.]”

Hence, the trial court determined that neither res judicata nor collateral estoppel applied to

bar the Board’s revocation of Ms. Vaught’s license.

Concerning Ms. Vaught’s postulate that her rights had been unfairly prejudiced by

the Board’s inability to consider Dr. Bosen’s letter, the trial court reiterated its findings

from the hearing on the motion to remand, set forth above. The court further determined

that the Board’s “failure to consider a letter that had not yet been written” did not constitute

“unlawful procedure” and that Ms. Vaught could have “elicited Dr. Bosen’s testimony in

the administrative proceedings, but did not do so[.]” Ms. Vaught timely appealed.

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II. Issues Presented

Ms. Vaught presents the following issues on appeal, which we have restated

slightly:

1. Whether the trial court erred by declining to find that the October 23,

2018 letter from the Department—which concluded that the

complaint against Ms. Vaught “did not merit further action”—

cconstituted a final, quasi-judicial agency determination warranting

application of the doctrines of res judicata and collateral estoppel.

2. Whether the trial court erred by declining to reverse the Board’s

revocation of Ms. Vaught’s nursing license when that decision was

purportedly based upon unlawful procedure and incomplete findings

from an incomplete record.

The Board has presented the following additional issue:

3. Whether the trial court erred by declining to find that Ms. Vaught had

waived the issues of res judicata and collateral estoppel when she

failed to raise them before the Board during the administrative

proceedings.

III. Standard of Review

The standard of review in an appeal of a contested case before the Board is the same

for the trial court and this Court. See Davis v. Shelby Cnty. Sheriff’s Dep’t, 278 S.W.3d

256, 264 (Tenn. 2009) (citing Gluck v. Civil Serv. Comm’n, 15 S.W.3d 486, 490 (Tenn. Ct.

App. 1999)). “Judicial review of administrative agencies following contested case hearings

is governed by the [UAPA].” Miller v. Tenn. Bd. of Nursing, 256 S.W.3d 225, 229 (Tenn.

Ct. App. 2007). Concerning judicial review, Tennessee Code Annotated § 4-5-322(h)

(West May 18, 2021, to current) of the UAPA provides in pertinent part:

(h) The court may affirm the decision of the agency or remand the case

for further proceedings. The court may reverse or modify the decision

if the rights of the petitioner have been prejudiced because the

administrative findings, inferences, conclusions or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

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(4) Arbitrary or capricious or characterized by abuse of

discretion or clearly unwarranted exercise of discretion;

or

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(5)(B)(i) Unsupported by a preponderance of the evidence in

light of the entire record, if the administrative findings,

inferences, conclusions, or decisions were made by a

board, council, committee, agency, or regulatory

program created pursuant to chapters 3, 4, 5, 6, 7, 8, 9,

10, 11, 12, 13, 14, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27,

28, 29, 30, and 31 of title 63;[2]

(ii) In determining whether the administrative findings,

inferences, conclusions, or decisions are supported by a

preponderance of the evidence, the court shall take into

account whatever in the record fairly detracts from its

weight, but the court shall not substitute its judgment

for that of the agency as to the weight of the evidence

on questions of fact.

Concerning our review of the trial court’s findings generally, we review a non-jury

case de novo upon the record with a presumption of correctness as to the findings of fact

unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Bowden

v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). We review questions of law, including those

of statutory construction, de novo with no presumption of correctness. See Bowden, 27

S.W.3d at 916 (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see

also In re Estate of Haskins, 224 S.W.3d 675, 678 (Tenn. Ct. App. 2006). The trial court’s

determinations regarding witness credibility are entitled to great weight on appeal and shall

not be disturbed absent clear and convincing evidence to the contrary. See Morrison v.

Allen, 338 S.W.3d 417, 426 (Tenn. 2011); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.

2002).

IV. Waiver

Before the trial court and on appeal, the Board has posited that Ms. Vaught waived

the affirmative defenses of res judicata and collateral estoppel because she did not present

them as affirmative defenses during the administrative proceedings. Before the trial court,

the Board relied on Tennessee Rule of Civil Procedure 12.08, which provides, in pertinent

2

The Department brought the charges against Ms. Vaught pursuant to Tennessee Code Annotated § 63-7-

115 and her nursing license was revoked by the Board on July 23, 2021.

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part, that a party waives “all defenses and objections” when that party does not present

such defenses either by motion or in the party’s answer or reply to a complaint, and upon

the Tennessee Supreme Court’s decision in Pratcher v. Methodist Healthcare Memphis

Hosps., 407 S.W.3d 727, 735 (Tenn. 2013) (“As a general rule, a party waives an

affirmative defense if it does not include the defense in an answer or responsive pleading.”)

(citing Tenn. R. Civ. P. 12.08).

Concerning the Board’s waiver argument, the trial court determined,

Waiver. The Board relies on Tennessee Rule of Civil Procedure 12.08

to argue that Ms. Vaught waived the affirmative defenses of res judicata and

collateral estoppel by failing to raise them through a written response to the

Notice of Charges before the Board. The only case cited by the Board in

support of this argument is a state trial court healthcare liability action, which

did not involve a prior administrative proceeding. See Pratcher v. Methodist

Healthcare Memphis Hosps., 407 S.W.3d 727, 735 (Tenn. 2013). The Board

acknowledges that Ms. Vaught requested a proposed special jury instruction

based on “judicial estoppel” on the eve of the administrative hearing. And,

while the Administrative Judge disallowed the instruction, Ms. Vaught’s

counsel was permitted to raise that defense during closing argument but did

not do so. Judicial estoppel, however, is a different theory than the doctrines

of res judicata or collateral estoppel, and Ms. Vaught did not argue to the

Board and does not argue on judicial review that “judicial estoppel” bars the

Board’s revocation decision.

The Board conducts license revocation proceedings as contested cases

under the Uniform Rules of Procedure for Hearing Contested Cases Before

State Administrative Agencies, Tenn. Comp. R. & Regs. 1360-01-01, et seq.

See also Tenn. Comp. R. & Regs. 1000-03, Rules of Tennessee Board of

Nursing (contested cases governed under Tenn. Comp. R. & Regs. 1360-04-

01). Under those administrative rules, it is only where they do not address a

specific issue that “reference may be made to the Tennessee Rules of Civil

Procedure for guidance as to the proper procedure to follow . . . .” Tenn.

Comp. R. & Regs. 1360-04-01-.01(3). In contested cases before the Board

of Nursing, the rules allow—but do not require—a party to file a written

answer to charges filed against her to assert any available defense:

The party may respond to the charges set out in the notice or

other original pleading by filing a written answer with the

Agency in which the party may:

***

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(i) Assert any available defense.

Tenn. Comp. R. & Regs. 1360-04-01-.05(5)(i) (emphasis added). Thus, the

filing of a written answer and assertion of any defense is optional, but not

required. Consequently, the rules do not preclude a party from raising

affirmative defenses at a contested case hearing based on any failure to do so

in a written answer. Further, because the administrative rules specifically

address the procedure for raising available defenses, the Tennessee Rules of

Civil Procedure do not apply. Thus, the Court concludes that Ms. Vaught

did not waive her claim or issue preclusion arguments for failing to raise

them as affirmative defenses in a responsive pleading before the Board.

(Footnote omitted.) Upon review, we agree with the trial court that based upon the

permissive language of the administrative code, the requirement for raising a defense by

filing a written response to a complaint brought before an administrative body such as the

Board is optional. See Tenn. Comp. R. & Regs. 1360-04-01-.05(5)(i). We also agree that

Ms. Vaught’s failure to raise collateral estoppel and res judicata as affirmative defenses in

a written responsive pleading during the administrative proceedings did not, without more,

constitute waiver of those defenses. Notwithstanding, we note that the analysis does not

conclude there.

We do not interpret the use of the word, “may,” in the administrative code to signify

that a defendant in an administrative proceeding can avoid waiver in every instance.

Significantly, the trial court did not address the fact that Ms. Vaught not only failed to raise

res judicata or collateral estoppel in a written responsive pleading before the Board, but

she also failed to present those defenses at any time during the administrative proceedings.

We further disagree with the trial court’s determination that the Tennessee Rules of

Civil Procedure do not apply to the instant case. The administrative code expressly states:

In any situation that arises that is not specifically addressed by these

rules, reference may be made to the Tennessee Rules of Civil Procedure for

guidance as to the proper procedure to follow when appropriate and to

whatever extent will best serve the interests of justice and the speedy and

inexpensive determination of the matter at hand.

Tenn. Comp. R. & Regs. 1360-04-01-.01(3). The administrative code does not specifically

address the issue of waiver of an affirmative defense in a contested case before an

administrative judge; therefore, we turn to the Tennessee Rules of Civil Procedure for

“guidance as to the proper procedure to follow” as the administrative code instructs. See

id.

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Tennessee Rule of Civil Procedure 12.02 provides, inter alia, that when, as in the

instant case, the “pleading sets forth a claim for relief to which the adverse party is not

required to serve a responsive pleading, the adverse party may assert at the trial any defense

in law or fact to the claim for relief.” Thus, pursuant to Rule 12.02, Ms. Vaught was

entitled to raise the affirmative defenses of res judicata and collateral estoppel at any time

during the administrative proceedings, including during the hearing. However, she failed

to do so.

On appeal, the Board relies on the Tennessee Supreme Court’s decision in Emory

v. Memphis City Sch. Bd. of Educ., 514 S.W.3d 129, 146 (Tenn. 2017), to argue that even

when “the tribunal of first instance is an administrative body,” a party must raise an issue

before that tribunal to preserve that issue for judicial review. In Emory, a tenured teacher

had been terminated following a contested administrative hearing before a school board.

Id. at 131. The school board had failed to conduct the hearing within the thirty days

required by statute. Id. at 134. The teacher did not raise an objection to the untimeliness

of the hearing during the administrative proceedings but instead raised the objection for the

first time in her petition for judicial review before the trial court. Id. at 146. The trial court

determined that the teacher had waived her timeliness argument because she had failed to

present it during the administrative proceedings. Id. at 137.

The Tennessee Supreme Court upheld the trial court’s determination that the teacher

had waived her timeliness argument by failing to raise it before the school board. Id. at

152. In so determining, the Emory Court elucidated:

As we have observed, during the lengthy Board hearing, nary a word

about the considerable delay in scheduling the hearing was uttered by either

Ms. Emory or her counsel. Despite the fact that Ms. Emory was represented

by counsel during the period preceding the Board hearing, nothing in the

record suggests that she objected to the delayed hearing date in advance of

the hearing. Like the teacher in Bailey, Ms. Emory could have raised the

issue of the timeliness of the Board hearing “either before it was conducted

or during it.” Bailey[ v. Blount Cnty. Bd. of Educ.], 303 S.W.3d [216,] 237

[(Tenn. 2010)]. Also as in Bailey, Ms. Emory “has offered no reason” for

failing to do so. Id. at 238.

Despite Ms. Emory’s failure to even mention the delay during the

Board hearing, in the ensuing judicial review of the Board’s decision, she

made the Board’s failure to hold the hearing within 30 days the centerpiece

of her argument.

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From our review of the record, Ms. Emory received a full and fair

hearing. She was given ample opportunity to put on proof, present testimony

from witnesses on her behalf, testify on her own behalf, cross-examine the

Board’s witnesses, answer questions from Board members, and argue her

view of the significant events that were the basis for the charges. On appeal,

though Ms. Emory’s counsel indicates that he would have pursued a different

strategy had he been representing her at the time, he does not question the

fairness of the Board’s hearing.

Emory, 514 S.W.3d at 150-51.

In declining to overturn the school board’s decision, the Emory Court highlighted

the importance of providing an administrative tribunal the opportunity to correct its own

procedural errors without the trial court usurping the agency’s function. See id. at 152

(“The administrative tribunal, like the trial court, must be given the opportunity to correct

procedural errors.” (citing Bailey[ v. Blount Cnty. Bd. of Educ.], 303 S.W.3d [216,] 237

[(Tenn. 2010)])) (internal quotation marks and citation omitted). The Emory Court also

cited to Unemployment Comp. Comm’n of Alaska v. Aragon, 329 U.S. 143, 155 (1946), in

which the United States Supreme Court cautioned: “A reviewing court usurps the agency’s

function when it sets aside the administrative determination upon a ground not theretofore

presented and deprives the Commission of an opportunity to consider the matter, make its

ruling, and state the reasons for its action.” See id.

In the case at bar, we are similarly reluctant to usurp the Board’s function by

considering procedural issues that were not brought before the Board in the first instance.

As the teacher in Emory failed to raise the timeliness issue before the administrative board,

Ms. Vaught failed to raise the defenses of res judicata and collateral estoppel before the

Board in this case. Instead, Ms. Vaught presented these defenses for the first time in her

petition for judicial review, despite having had ample time to raise them during the

administrative proceedings. The record indicates that Ms. Vaught received a notice of the

hearing and charges from the Department relative to the instant matter on September 27,

2019, and the hearing was conducted by the Board nearly two years later, on July 22 and

23, 2021. Ms. Vaught was represented by counsel for most of the intervening months,

through whom she filed multiple pre-trial motions and participated in discovery, yet Ms.

Vaught did not present the defenses of res judicata or collateral estoppel in any of her

written motions or petitions during that time. Additionally, Ms. Vaught was afforded

ample opportunity to put on proof, call witnesses, testify on her own behalf, cross-examine

the Board’s witnesses, and present her theories of the case before the Board during the two-

day hearing in July 2021, but she did not present the affirmative defenses at any time during

the hearing.

Instead, Ms. Vaught made the defenses of res judicata and collateral estoppel the

“centerpiece of her argument” for the first time in her petition for judicial review, despite

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her failure to reference them before or during the Board hearing. See Emory, 514 S.W.3d

at 150. As the Emory Court explained:

The efficient and fair administration of justice demands that a litigant

not be permitted to withhold her objections, await the outcome, and then

complain that she was denied her rights if she does not approve of the

resulting decision. See Bailey, 303 S.W.3d at 237 (quoting McClellan[ v. Bd.

of Regents of State Univ.], 921 S.W.2d [684,] 690 [(Tenn. 1996)]

(“‘Allowing parties to acquiesce in the procedures, but to challenge those

same procedures on appeal is inefficient and unreasonable.’”); Dragan v.

Connecticut Med. Examining Bd., 223 Conn. 618, 613 A.2d 739, 747 (1992)

(citations and internal quotation marks omitted) (“A party to an

administrative proceeding cannot be allowed to participate fully at hearings

and then, on appeal, raise claims that were not asserted before the board. We

have made it clear that we will not permit parties to anticipate a favorable

decision, reserving a right to impeach it or set it aside if it happens to be

against them, for a cause which was well known to them before or during the

trial.”). Allowing a party to hide an ace up her sleeve for appeal would

undermine fair play and finality of judgment. In contrast, our reaffirmed

insistence upon contemporaneous objections to agency errors should provide

incentive for litigants to see that all procedural deficiencies are addressed

before the administrative body completes its consideration of a dispute. See

City of Brentwood[ v. Metro. Bd. of Zoning Appeals], 149 S.W.3d [49,] 55

[(Tenn. Ct. App. 2004)] (citing McClellan, 921 S.W.2d at 690) (“Parties to

administrative proceedings must raise all objections to procedural errors

during the hearing in order to preserve these questions for later appellate

review.”).

Emory, 514 S.W.3d at 152.

As reviewed above, Ms. Vaught had ample opportunity to raise the defenses of res

judicata and collateral estoppel before the Board during the two-day hearing and at any

time in a responsive pleading or motion before the hearing, but she failed to do so.

Moreover, by participating in the full hearing before the Board, Ms. Vaught consented to

the hearing on the substantive matters of the complaint that had been brought against her.

Ms. Vaught should not have been permitted to raise these defenses for the first time in her

petition for judicial review. Accordingly, we reverse the trial court’s determination

concerning waiver and find that Ms. Vaught waived the affirmative defenses of res judicata

and collateral estoppel by failing to raise them during the administrative proceedings.

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V. Dr. Bosen’s Letter

Ms. Vaught also argues that the Board’s decision to revoke her nursing license was

“flawed and unfairly prejudicial” and based upon “incomplete findings, inferences,

conclusions and decisions contained in an incomplete record.” Ms. Vaught focuses this

portion of her argument on a letter written by Dr. Bosen and transmitted to the sentencing

judge in the related criminal case on May 6, 2022, nine months after the conclusion of the

hearing before the Board.

During the Board hearing, Dr. Bosen had testified concerning the nature of the

medications, Vecuronium and Versed, and had described the common practices associated

with using automated dispensing cabinets like the one used by Ms. Vaught to administer

the medicine to the decedent patient. Dr. Bosen had also testified during the related

criminal court proceedings. After Ms. Vaught was convicted through the criminal court

proceedings, Dr. Bosen authored a letter urging the criminal court “to offer grace in

sentencing to Ms. Vaught.” In the communication, Dr. Bosen conceded that Ms. Vaught

had erred in administering the wrong medicine to the decedent but presented several

reasons why, in Dr. Bosen’s opinion, Ms. Vaught’s actions had not amounted to

“intentional neglect.”

When Ms. Vaught became aware of the letter that Dr. Bosen had sent to the criminal

court judge, she filed a motion in the trial court to remand the matter of her nursing license

revocation to the Board so that the Board could reconsider its decision predicated upon

what she described as the “newly discovered evidence” in the letter. The trial court

declined to remand the case to the Board and instead treated Ms. Vaught’s motion to

remand as a motion seeking leave to present the letter as additional evidence pursuant to §

4-5-322(e) (West May 18, 2021, to current) of the UAPA.3 The section provides:

If, before the date set for hearing, application is made to the court for

leave to present additional evidence, and it is shown to the satisfaction of the

court that the additional evidence is material and that there were good reasons

for failure to present it in the proceeding before the agency, the court may

order that the additional evidence be taken before the agency upon conditions

determined by the court. The agency may modify its findings and decision

by reason of the additional evidence and shall file that evidence and any

modifications, new findings or decisions with the reviewing court.

Following a hearing on the motion, the trial court entered an order on September

3

In declining to remand the case to the Board, the trial court relied on § 4-5-322(h) to determine that the

subsection did “not provide a vehicle for Petitioner to seek a remand to the agency prior to the final hearing.”

On appeal, Ms. Vaught does not contest the trial court’s decision not to remand to the Board prior to the

final hearing.

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13, 2022, declining to remand or allow Ms. Vaught to present the letter before the Board

as additional evidence. The trial court determined that (1) the contents of the letter were

not material to the Board’s decision to revoke Ms. Vaught’s license and (2) Ms. Vaught

had failed to show good reason for not presenting the substance of the letter as additional

evidence during the administrative proceeding. See Tenn. Code Ann. 4-5-322(e). As the

trial court explained in its order:

[S]everal witnesses testified during the hearing before the Board about the

features of the automated medication dispensing system, and the Board

considered this testimony in making its decision. Thus, the information

contained in [Dr. Bosen’s] letter would not have affected the merits of the

Board’s decision, particularly in light of the Board’s reliance on [Ms.

Vaught’s] admissions before the Board that she did not read the label to

verify the medication dispensed. Story v. Civil Serv. Comm’n, No. M2010-

01214-COA-R3-CV, 2011 WL 2623904, at *10 (Tenn. Ct. App. Jul. 5,

2011). Further, even if the information in [Dr. Bosen’s] letter were material,

the Court finds [Ms. Vaught] failed to establish good reasons for failing to

present that information during the administrative hearing. Dr. Bosen

testified as a witness before the Board and [Ms. Vaught’s] counsel cross-

examined her. In addition, [Ms. Vaught] had the opportunity to conduct

discovery and depose Dr. Bosen before the administrative hearing, but chose

not to do so.

The trial court reiterated this reasoning in its final order respecting Ms. Vaught’s petition

for judicial review and concluded that the Board’s “failure to consider a letter that had not

yet been written” did not constitute “unlawful procedure,” as Ms. Vaught had asserted.

The trial court stated that “Ms. Vaught chose not to use the available discovery tools

through which she could have elicited Dr. Bosen’s testimony in the administrative

proceedings[.]”

We agree with the trial court’s reasoning. In the letter to the criminal court judge,

Dr. Bosen explained how “confirmation bias” may have contributed to Ms. Vaught’s

administration of the wrong medication after using the “override” feature on the automatic

dispensing machine. Dr. Bosen concluded that such confirmation bias was a “critical piece

of the event” that “was never brought up in trial” although Dr. Bosen “desperately wanted

it to be.” Significantly, Dr. Bosen did not state in the letter that this information was newly

discovered; she simply stated that it was not “brought up in trial.”

Upon careful review, we find that the information contained in Dr. Bosen’s letter

could have been elicited through Dr. Bosen’s testimony during the Board hearing or

through depositions, but was not. Ms. Vaught had a full opportunity to cross-examine Dr.

Bosen during the hearing regarding the features of and usual practice concerning the

automatic dispensing machine, as well as Dr. Bosen’s opinions concerning “confirmation

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bias,” but she failed to do so. In sum, the letter did not present “newly discovered” evidence

that was not available during the administrative proceedings. Therefore, the Board’s

decision to revoke Ms. Vaught’s license was not based upon an incomplete record, as Ms.

Vaught argues. We further conclude that the administrative proceedings were not unfairly

prejudicial to Ms. Vaught simply because she failed to elicit supportive testimony from Dr.

Bosen or others that was available throughout. We also do not discern any unlawful

procedure on the part of the Board in conducting the administrative proceedings and Ms.

Vaught presents none on appeal.

Finally, we agree with the trial court that even had Dr. Bosen’s letter been presented

to the Board—which was an impossibility because it was written several months after the

Board hearing concluded—such information would not have succeeded in overcoming Ms.

Vaught’s own admission that she had failed to check the medication before administering

it to the patient. During her testimony before the Board, Ms. Vaught explained that she

had been “distracted” when she retrieved the medication from the dispensing machine and

that she “didn’t think to double-check” what she “thought” she had “pulled from the

machine.” When asked why she did not read the “label front” of the medication, Ms.

Vaught explained that nurses can “get complacent in our practice when things get busy[.]”

Ms. Vaught then concluded: “And so it was completely my fault that I didn’t check [the

medication vial].” Upon review of this testimony and in consideration of the record as a

whole, we determine that the evidence preponderates in favor of the Board’s decision to

revoke Ms. Vaught’s nursing license. See Tenn. Code Ann. § 4-5-322(h)(5)(B)(i). We

accordingly decline to disturb the trial court’s ruling affirming the Board’s decision.

VI. Conclusion

For the foregoing reasons, we determine that Ms. Vaught waived the affirmative

defenses of res judicata and collateral estoppel through her failure to raise those doctrines

before the Board in the first instance. We accordingly reverse the trial court’s

determination relative to that issue. In all other respects, we affirm the trial court’s

November 27, 2023 order upholding the Board’s decision to revoke Ms. Vaught’s nursing

license. The case is remanded to the trial court for further proceedings consistent with this

Opinion and collection of costs assessed below. Costs on appeal are assessed to the

appellant, Radonda Vaught.

s/Thomas R. Frierson, II

_________________________________

THOMAS R. FRIERSON, II, JUDGE

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