# Radonda Vaught v. Tennessee Board of Nursing

> Court of Appeals of Tennessee · March 20, 2025

URL: https://www.frixlaw.com/law-library/cases/10827288

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** March 20, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Thomas R. Frierson
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
___________________________________

No. M2023-01816-COA-R3-CV
___________________________________

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.
-2-
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
-3-
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.

-4-
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;
-5-
(4) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion;
or
***

(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.
-6-
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:

***

-7-
(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.

-8-
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.

***

-9-
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
- 10 -
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.

- 11 -
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10827288. Public record. Not legal advice.