Andres Perez v. Tennessee Board of Medical Examiners

07/03/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

May 8, 2019 Session

ANDRES PEREZ v. TENNESSEE BOARD OF MEDICAL EXAMINERS

Appeal from the Chancery Court for Davidson County

No. 16-1218-III Ellen H. Lyle, Chancellor

___________________________________

No. M2018-00960-COA-R3-CV

___________________________________

This case arose out of the Petitioner/Appellant’s attempts to become a licensed physician

in Tennessee. Appellant sent an application to the Tennessee Board of Medical

Examiners but was ultimately rejected. After a contested hearing, the Board again

determined that Appellant’s application should be rejected since Appellant had not

engaged in direct patient care in many years. Thereafter, Appellant sought review of the

Board’s decision in the Chancery Court of Davidson County pursuant to the Tennessee

Uniform Administrative Procedures Act. The chancery court concluded that Appellant

was not entitled to relief, and Appellant appealed to this Court. Discerning no error, we

affirm.

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

J. STEVEN STAFFORD, P. J., W.S., delivered the opinion of the court, in which KENNY

ARMSTRONG and CARMA D. MCGEE, JJ., joined.

David R. Grimmett, Nashville, Tennessee, for the appellant, Andres Perez.

Herbert H. Slatery, III, Attorney General and Reporter; Sara E. Sedgwick, Senior

Assistant Attorney General; Nicholas R. Barry, Assistant Attorney General, for the

appellee, Tennessee Board of Medical Examiners.

OPINION

BACKGROUND

This case involves the efforts of Dr. Andres Perez (“Appellant”) to become a

licensed Tennessee doctor certified to practice emergency and general medicine.1

1

As a threshold matter, we must point out that the Appellant in this case was represented by

counsel throughout the proceedings before the Board as well as in the trial court; additionally, counsel for

Appellant graduated from medical school in 1981 and thereafter participated in various

residency programs throughout the northeastern United States. It is undisputed that

Appellant never fully completed a residency program, but did practice in the areas of

general surgery as well as emergency medicine for several years. From 1988 through

1999, Appellant practiced emergency medicine and eventually became fully licensed in

Michigan, Arizona, and New Hampshire. Starting in 1999, however, Appellant ceased

working directly with patients and was employed at various private healthcare

companies. Appellant became board certified in preventative medicine and from 1999 to

September 2006, Appellant was employed with Blue Cross Blue Shield. Then, from

September 2006 through April 2015, Appellant worked for Healthways, Inc. 2 in Franklin,

Tennessee.

On May 22, 2015, Appellant filed an application with the Tennessee Board of

Medical Examiners (“the Board”) for medical licensure in the State of Tennessee,

requesting to be certified in emergency medicine and general practice. Thereafter,

Appellant received correspondence from the Board revealing the Board’s concern that

Appellant had not practiced emergency medicine since 1999 and requested that Appellant

interview with the entire Board.3 The interview took place on January 26, 2016, and the

Board thereafter voted to deny Appellant’s application for medical licensure. In a follow-

up letter sent to Appellant, the Board indicated that Appellant’s application was denied

“in light of the fact that you have been out of clinical practice for the past sixteen years.”

This letter also provided that Appellant was entitled to challenge the Board’s ruling in a

contested hearing pursuant to Tennessee’s Uniform Administrative Procedures Act (“the

UAPA”) should Appellant so choose.

Consequently, Appellant filed an appeal of the Board’s decision and a contested

case hearing was set for September 14, 2016. At the hearing, Appellant testified that

although his preventative medicine practice with insurance companies did not involve

any direct patient care, he was heavily involved in the reviewing of patients’ charts and in

working with healthcare providers to create and modify care plans for patients. In

Appellant’s own words, he described this position as

the Appellant filed the appellate brief. However, the Appellant chose to represent himself at oral

argument and now proceeds pro se in the present case. Accordingly, we briefly note that “[p]arties who

decide to represent themselves are entitled to fair and equal treatment by the courts[,]” and we keep in

mind that “many pro se litigants have no legal training and little familiarity with the judicial system.”

Hessmer v. Hessmer, 138 S.W.3d 901, 903–04 (Tenn. Ct. App. 2003).

2

The Appellant described Healthways, Inc. as being a “disease management company” that has

evolved into “a total population health provider.” Appellant’s official position at Healthways, Inc. was

vice president of medical integrity.

3

Specifically, Appellant received a letter from the Board on September 3, 2015, stating that “[i]t

is the practice of the medical director to defer files when the information received appears that a licensee

has not practiced medicine clinically in more than 2 years.”

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[t]he utilization review and utilization management . . . both at the hospital

level and also at the individual’s private practice level. In both instances I

would review the charts of the patients for the assessment and the working

diagnosis, and identify - - I would be looking for appropriate flow of the

evaluation process, the use of corroborative testing or the lack of, and

would be providing some information to the providers and to the facilities

in terms of the performance of care, the administration of care on these

patients.

Overall, Appellant’s testimony reflected that his duties were largely administrative,

although they did involve some level of diagnosing patients and collaborating with

providers to create treatment plans. Further, Appellant discussed how since learning of

the Board’s concern regarding Appellant’s long absence from clinical practice, Appellant

had begun to seek out opportunities to reintegrate himself into the practice of emergency

medicine. Specifically, Appellant participated in a one-month emergency medicine

rotation at St. Mary Mercy Hospital in Michigan in March-April of 2016 and in July of

2016 Appellant began working in the Ireland Army Community Hospital in Fort Knox,

Kentucky as an emergency medicine staff physician. Appellant entered into evidence

letters of recommendation from both of the doctors that had supervised Appellant in these

recent positions; the letters were complimentary of Appellant and suggested that he

would be a strong addition to the medical community in Tennessee. Appellant also

testified, however, that the last time he was solely and independently responsible for a

patient’s care, including diagnosis, treatment, and/or writing prescriptions was in 1999.

At the end of the contested hearing, the Board determined that Appellant should

not be granted medical licensure in Tennessee due to his long absence from emergency

medicine. The Board’s final order, in pertinent part, stated as follows:

3. [Appellant] holds active, unencumbered medical licenses in Michigan

and Arizona and an inactive license in New Hampshire.

4. [Appellant] practiced emergency medicine from 1988 until 1999 and has

not engaged in direct patient care since that time. From 1999 until

approximately September 2006, [Appellant] practiced administrative

medicine with Blue Cross Blue Shield. Since approximately September

2006 until at least April 2015, [Appellant] was employed by Healthways,

Inc. in Franklin, Tennessee without benefit of a medical license.

5. Based on the foregoing, [Appellant] was asked to appear for interview

before the Board and did so appear on January 26, 2016. During this

interview, [Appellant] acknowledged that he had not seen a patient or

practiced clinical medicine since 1999. Prior to denial, [Appellant] was

given ample opportunity to withdraw his application. Based on the

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application and the interview, the Board voted to deny [Appellant’s]

application.

* * *

7. The facts alleged in paragraphs 1 through 6, supra, would constitute

grounds for denial pursuant to TENN. CODE ANN. § 63-6-10l(a)(3) which

provides that it is “the board’s duty to examine the qualifications of all

applicants for certification of fitness to practice medicine or surgery in this

state . . .”

8. The facts alleged in paragraphs 1 through 6, supra, would constitute

grounds for denial pursuant to TENN. CODE ANN. § 63-6-214(a) which

gives the board the power to deny an application for a license to any

applicant who applies for the same through reciprocity or otherwise.

Thus, although the Board strongly commended Appellant for taking steps towards

reintegration into emergency medicine, the Board ultimately took the position that four

months of working in the emergency room under the supervision of other doctors could

not remedy the extended lapse in Appellant’s emergency medicine practice. Nonetheless,

the Board also stated that should Appellant complete a formal assessment that reflected

that he is “fit and safe to practice without further remediation” within one year, Appellant

could be granted a Tennessee license.

Pursuant to the UAPA, Appellant thereafter sought judicial review in the Chancery

Court of Davidson County, Tennessee (“trial court”) by filing a timely petition for review

of the Board’s action. In Appellant’s brief to the trial court, he outlined four arguments:

(1) that the Board’s findings of fact and conclusions of law were insufficient for

meaningful appellate review; (2) that the Board used an improper procedure in the

contested case hearing in that it applied a presumption of “clinical incompetence” due to

Appellant’s extended absence from emergency medicine, and that this presumption was

an unconstitutional procedure; (3) that the Board’s decision to deny Appellant medical

licensure violated the public policy of Tennessee; and (4) that the Board’s decision was

unsupported by the evidence in light of the fact that Appellant is licensed in three other

states. In response, the Board asserted that the burden of proving competency such that

licensure was appropriate lay with Appellant, and that Appellant could not establish that

the Board’s decision was arbitrary and capricious or unsupported by the evidence at the

hearing. The trial court held a hearing on April 5, 2018, after which it determined that

Appellant’s petition should be denied.

A written order was entered by the trial court on April 23, 2018. Therein, the trial

court made detailed findings as to each of Appellant’s four arguments. First, the trial

court ruled that the Board’s findings of fact and conclusions of law were sufficient to

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facilitate appellate review because the conclusions refer back to the findings upon which

the conclusions are based. Stated differently, the trial court found that the Board

exercised its discretion to deny Appellant licensure in light of Appellant’s extended

absence from any employment involving direct patient care. In the trial court’s view, this

was clearly reflected in the Board’s final order, specifically paragraphs four and five. As

such, the trial court soundly rejected Appellant’s assertion that review of the instant case

was not possible based on the format of the Board’s order. Next, the trial court also

rejected the contention that the Board engaged in any improper procedures during

Appellant’s contested case hearing. In addressing Appellant’s third and fourth arguments,

the trial court concluded that the Board did not violate public policy in denying

Appellant’s petition, and that substantial and material evidence underpinned the Board’s

decision.

Appellant filed a timely notice of appeal to this Court on May 23, 2018.

ISSUES PRESENTED

Appellant raises three issues for this Court’s review, which are taken from his

brief:

1. Whether the trial court erred in finding that the Board provided sufficient

findings of fact and conclusions of law.

2. Whether the trial court erred in finding that the Board’s final decision

was not arbitrary and capricious.

3. Whether the trial court erred in finding that the Board’s decision was

supported by substantial and material evidence.

STANDARD OF REVIEW

The present case was appealed to the trial court pursuant to the UAPA.

Accordingly, this Court’s standard of review is found at Tennessee Code Annotated

section 4-5-322(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

(5)(A) Unsupported by evidence that is both substantial and material in the

light of the entire record.

(B) In determining the substantiality of evidence, the court shall take

into account whatever in the record fairly detracts from its weight,

but the court shall not substitute its judgment for that of the agency

as to the weight of the evidence on questions of fact.

Additionally, “[n]o agency decision pursuant to a hearing in a contested case shall be

reversed, remanded or modified by the reviewing court unless for errors that affect the

merits of such decision.” Tenn. Code Ann. § 4-5-322(i). The same standard of review that

is utilized by the trial court is applicable here. See Estate of St. v. State Bd. of

Equalization, 812 S.W.2d 583, 585 (Tenn. Ct. App. 1990) (“The scope of review in this

Court is the same as in the trial court, to review findings of facts of the administrative

agency upon a standard of substantial and material evidence.”). Indeed, the trial court

“may not substitute its judgment concerning the weight of the evidence for that of the

Board[,]” and “the same limitations apply to that of the appellate court.” Roy v.

Tennessee Bd. of Med. Examiners, 310 S.W.3d 360, 364 (Tenn. Ct. App. 2009) (citing

Humana of Tennessee v. Tennessee Health Facilities Comm’n, 551 S.W.2d 664, 668

(Tenn. 1977); Jones v. Bureau of TennCare, 94 S.W.3d 495, 501 (Tenn. Ct. App.

2002)). “Thus, when reviewing a trial court’s review of an administrative agency’s

decision, this court is to determine ‘whether or not the trial court properly applied the . . .

standard of review’ found at Tenn. Code Ann. § 4-5-322(h).” Id. (citing Jones, 94

S.W.3d at 501 (quoting Papachristou v. Univ. of Tennessee, 29 S.W.3d 487, 490 (Tenn.

Ct. App. 2000)). The standard applicable in this case is therefore “more narrow than the

broad standard employed in other civil appeals[,]” Ruff v. Neeley, No. W2006-01192-

COA-R3-CV, 2006 WL 3734641, at *6 (Tenn. Ct. App. Dec. 20, 2006), and we “do not

substitute [our] judgement for that of the agency as to the weight of the evidence.”

Wayne County v. Tenn. Solid Waste Disposal Control Bd., 756 S.W.2d 274, 279 (Tenn.

Ct. App. 1988)). Overall, “the narrower scope of review used to review an agency’s

factual determinations suggests that, unlike other civil appeals, the courts should be less

confident that their judgment is preferable to that of the agency.” Id. at 279.

DISCUSSION

I.

We address each of Appellant’s three issues in turn, first considering whether the

trial court correctly determined that the Board’s findings of fact and conclusions of law

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were sufficient for appellate review. In order to understand the argument raised by

Appellant, there are two areas of the Tennessee Code Annotated that must be briefly

discussed.

First, Appellant brought this case as an appeal for judicial review of an

administrative board’s final order in a contested case. See Tenn. Code Ann. § 4-5-322(a)

(“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.”);

see also Tenn. Code Ann. § 4-5-322(b)(1)(A)(i) (“Proceedings for review are instituted

by filing a petition for review in chancery court.”). Consequently, there is no dispute here

that the procedures within the UAPA are applicable. Tenn. Code Ann. § 4-5-322(f) (“The

procedure followed in the reviewing court will be followed in the review of contested

cases decided by the agency, except as otherwise provided in this chapter.”). One of the

relevant UAPA procedures is the requirement that the Board render a final order

containing findings of fact and conclusions of law after a contested case hearing:

A final order, initial order or decision under § 50-7-304 shall include

conclusions of law, the policy reasons therefor, and findings of fact for all

aspects of the order, including the remedy prescribed and, if applicable, the

action taken on a petition for stay of effectiveness. Findings of fact, if set

forth in language that is no more than mere repetition or paraphrase of the

relevant provision of law, shall be accompanied by a concise and explicit

statement of the underlying facts of record to support the findings.

Tenn. Code Ann. § 4-5-314(c). The mandate to enter findings of fact and conclusions of

law is “a statutory imperative; it ‘is not a mere technicality but is an absolute necessity

without which judicial review would be impossible.’” CF Indus. v. Tennessee Pub. Serv.

Comm’n, 599 S.W.2d 536, 541 (Tenn. 1980) (citing Levy v. State Bd. of Examiners,

Etc., 553 S.W.2d 909, 911 (Tenn. 1977)); see also Hoover, Inc. v. Metro Bd. of Zoning

Appeals, 924 S.W.2d 900, 905 (Tenn. Ct. App. 1996) (“[A] reviewing court can not [sic]

determine whether the decision of an administrative body is supported by material

evidence unless the administrative body makes findings of facts setting forth the reasons

for its decision.”). On the other hand, however, “the sufficiency of an agency’s findings

of fact must be measured against the nature of the controversy and the intensity of the

factual dispute.” CF Indus., 599 S.W.2d at 541. To that point, “where there is no

disputed issue of fact and the sole question before the agency is the proper conclusion to

be drawn from the undisputed facts and the application of the correct legal rules, the

record need not be burdened with detailed findings of fact.” Id. Indeed, “[i]n such a case

the facts need only be recited.” Id. Consequently, the particular nature of the findings and

conclusions required “necessarily varies from case to case.” Id. Nonetheless, there is no

dispute in the present case that the Board was required to enter a final order containing

some findings of fact and conclusions of law explaining its decision to deny Appellant

medical licensure. Tenn. Code Ann. § 4-5-314(c).

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Second, another portion of the Tennessee Code Annotated explains the Board’s

duties as to overseeing physicians in Tennessee, and explains the circumstances under

which it is appropriate for the Board to grant or deny a medical license or sanction a

practicing physician. Specifically, Tennessee Code Annotated section 63-6-101(a)(3)

provides that

it shall be the board’s duty to examine the qualifications of all applicants

for certification of fitness to practice medicine or surgery in this state, to

conduct disciplinary hearings, and to make such rules and regulations as are

necessary to carry out and make effective this chapter. Any rules and

regulations promulgated by the board shall comply with all requirements of

the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Further, section 63-6-214 explains that “[t]he board has the power to . . . deny

an application for a license to any applicant who applies for the same through reciprocity

or otherwise.” Tenn. Code Ann. § 63-6-214(a)(1). This section goes on to provide several

circumstances under which it is appropriate for the Board to deny licensure to an

applicant. See generally Tenn. Code Ann. § 63-6-214(b)(1)(22) (providing that some

grounds for physician discipline or denial of a request for licensure include, inter alia,

“[u]nprofessional, dishonorable or unethical conduct;” “gross health care liability or a

pattern of continued or repeated health care liability;” “willfully betraying of a

professional secret;” or “engaging in the practice of medicine when mentally or

physically unable to safely do so;”). Importantly, however, section 63-6-214 clearly

provides that the Board is not limited in its action to the specific circumstances provided

in subsections (b)(1)(22). Tenn. Code Ann. § 63-6-214(b) (“The grounds upon which

the board shall exercise power include, but are not limited to . . .”) (emphasis added).

Thus, when read in conjunction, the foregoing sections make clear that it is well

within the Board’s discretion to regulate the practice of medicine in Tennessee, including

granting licensure, but that the Board must act within the confines of the UAPA in doing

so. Tenn. Code Ann. § 63-6-101 (“Any rules and regulations promulgated by the board

shall comply with all requirements of the Uniform Administrative Procedures Act[.]”).

This includes entering findings of fact and conclusions of law after holding a contested

case hearing; however, the necessary degree of detail depends on the particular case and

whether the facts were sharply disputed. Tenn. Code Ann. § 4-5-314(c).

Turning to the present case, Appellant argues on appeal that the trial court erred in

concluding that the Board’s final order contains sufficient findings of fact and

conclusions of law to allow for appellate review. Instead, Appellant urges that “neither

this [C]ourt nor Appellant are in a position to know why Appellant was denied a license

to practice medicine.” Appellant further argues that “[a]t no time in [the Board’s] final

order did the Board make the finding that [Appellant] does not meet the qualifications to

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be licensed in Tennessee. . . . Unfortunately, the Board never mentioned what specific

ground it was relying on in denying [Appellant] a license.”

The trial court, however, determined that that the Board’s final order was

sufficient for appellate review:

Upon analyzing the content of the decision below and comparing it

to the statutes the Court concludes the decision contains sufficient

supporting reasoning. Each of the [ ] Conclusions of Law cites to and refers

back to the Findings of Fact in paragraphs 1 through 6. These paragraphs

provide that the reason for denial of the [Appellant’s] license was because

the [Appellant] had not engaged in direct patient care or practiced clinical

medicine since 1999. This reasoning is made clear in paragraphs 4 and 5 of

the Final Order which the Conclusions of Law refer back to.

* * *

As to the [Appellant’s] second challenge that the Board failed to

articulate one of the 22 grounds listed in Tennessee Code Annotated section

63-6-214(b), this also is not a basis for reversal. While it is undisputed that

the [Appellant’s] conduct and/or application did not present any of the

wrongs listed in subsection (b) (e.g., unprofessional, dishonorable or

unethical conduct, fraud or deceit in the practice of medicine, gross health

care liability, habitual intoxication, conviction of a felony relating to drugs

or the practice of medicine, etc.), Tennessee Code Annotated section 63-6-

214(b), by its own terms, is not an exhaustive list for which the Board may

deny a medical license. Subsection (b) also provides that other grounds may

justify action by the Board. The Section specifically states that the Board’s

power is “not limited to” the twenty-two (22) listed grounds. TENN. CODE

ANN. § 63-6-214(b) (West 2018) (version effective to April 26, 2016) (“(b)

The grounds upon which the board shall exercise such power include, but

are not limited to. . .”) (emphasis added).

Added to the nonexhaustive list of grounds in section 63-6-214(b) is

that the general, introductory statute of the scheme, Tennessee Code

Annotated section 63-6-101(a)(3) sets the policy that it is the “[B]oard’s

duty to examine the qualifications of all applicants for certification of

fitness to practice medicine or surgery in this state . . . .” In entrusting the

Board with this duty, the Legislature has granted the Board substantial

discretion in determining the appropriate circumstances in which to grant or

deny an application for a medical license. Based upon the nonexhaustive

list of grounds of section 63-6-214(b) and the discretion of the Board

provided in 63-6-101, the Court does not find the Board’s interpretation of

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its controlling statute clearly erroneous. In denying the [Appellant’s]

application, the Board relied on the undisputed proof that the [Appellant]

had not seen a patient or practiced clinical medicine with direct patient care

since 1999. This is a rational basis for the Board’s decision in paragraph 9

of the Final Order that “the Petitioner had failed to meet his burden of

establishing by a preponderance of the evidence that he currently possesses

the clinical skills, knowledge and competence such that he should be

granted a full, unrestricted Tennessee medical license.”

Having reviewed both the administrative record and the record on appeal, we

agree with the trial court’s determination that the Board’s final order was sufficient. The

Board clearly explained in paragraphs four and five that the “[Appellant] has not engaged

in direct patient care” or “seen a patient or practiced clinical medicine since 1999.” Then,

in the conclusions of law section of its order, the Board expressly refers back to those

paragraphs and states that “[t]he facts alleged in paragraphs 1 through 6, supra, would

constitute grounds for denial pursuant to” Tennessee Code Annotated sections 63-6-101

and 63-6-214.

We are unpersuaded in several respects by Appellant’s assertion that the Board’s

order is somehow inadequate. First, as discussed supra, Appellant is correct in asserting

that findings of fact and conclusions of law are necessary under the UAPA; however, it is

also true that “where there is no disputed issue of fact and the sole question before the

agency is the proper conclusion to be drawn from the undisputed facts and the application

of the correct legal rules, the record need not be burdened with detailed findings of fact.”

CF Indus., 599 S.W.2d at 541. The contested case hearing at issue here was simply not

the kind “wherein the issues of fact are sharply contested and the proof is conflicting.” Id.

Rather, here, the facts underlying Appellant’s application for licensure were never in

dispute, nor were the facts regarding the approximately fifteen-year gap in his emergency

medicine practice. The only dispute was whether based upon those facts the Appellant

was qualified, in the Board’s discretion, for medical licensure in Tennessee. As such,

Appellant’s apparent assertion that the record requires voluminous findings of fact and

conclusions of law is misplaced. The present matter is simply not the type of fact-

intensive, “sharply contested” case in which extensive findings of fact are necessary. Id.

In any event, this Court has no difficulty discerning the basis of the Board’s

decision to deny Appellant medical licensure based upon the Board’s final order. On the

contrary, it is quite clear from the language of the order that the Board’s decision was

based upon Appellant’s long absence from the practice of emergency medicine. As the

trial court aptly noted, the Board’s conclusions of law are sufficient in that they expressly

relate back to the findings of fact that address the Board’s concern with the gap in

Appellant’s emergency medicine practice.

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Moreover, like the trial court, we cannot agree with Appellant’s assertion that the

Board’s failure to list a specific ground from section 63-6-214(b) somehow renders the

Board’s decision indiscernible. The list of grounds in section 63-6-214(b) is, by its own

terms, nonexhaustive and it is well-settled that the Board has broad discretion in

evaluating candidates for licensure. See Wayne Cnty., 756 S.W.2d at 279 (“Courts defer

to the decisions of administrative agencies when they are acting within their area of

specialized knowledge, experience, and expertise.”); Tenn. Code Ann. § 63-6-101(a)(3)

(“It shall be the board’s duty to examine the qualifications of all applicants for

certification of fitness to practice medicine or surgery in this state”). Further, Appellant

cites no law in his appellate brief that suggests that the Board’s failure to specify a

section 63-6-214(b) ground renders the final order inadequate as a whole, or that to deny

an applicant licensure the Board must rely on a specific ground listed in section 63-6-

214(b).

While Appellant asserts difficulty in understanding the basis of the Board’s order,

this Court does not. Rather, it is apparent to us that the ground upon which the Board

denied Appellant’s application was the undisputed fact that Appellant had not engaged in

direct patient care in nearly sixteen years, and this conclusion is readily apparent in the

Board’s final order. Accordingly, we conclude that Appellant’s first issue is without

merit.

II.

Appellant next argues that the trial court erred in finding that the Board’s decision

to deny Appellant medical licensure was not arbitrary and capricious. “A decision of an

administrative agency is arbitrary or capricious when there is no substantial and material

evidence supporting the decision.” StarLink Logistics Inc. v. ACC, LLC, 494 S.W.3d

659, 669 (Tenn. 2016) (citing Pittman v. City of Memphis, 360 S.W.3d 382, 389 (Tenn.

Ct. App. 2011)) (involving a different statute that also applies the substantial and material

evidence standard). Stated differently, “a decision is arbitrary or capricious if it ‘is not

based on any course of reasoning or exercise of judgment, or . . . disregards the facts or

circumstances of the case without some basis that would lead a reasonable person to

reach the same conclusion.’” Smith v. White, 538 S.W.3d 1, 11 (Tenn. Ct. App. 2017)

(citing City of Memphis v. Civil Serv. Comm’n, 216 S.W.3d 311, 316 (Tenn. 2007)).

Further, “a clear error of judgment can also render a decision arbitrary and capricious

notwithstanding adequate evidentiary support[,]” and “[i]n the broadest sense, the

arbitrary and capricious standard requires the court to determine whether the

administrative agency has made a clear error in judgment.” Id.; Wade v. Tennessee Dep’t

of Finance and Admin., 487 S.W.3d 123, 131 (Tenn. Ct. App. 2015) (citing Jackson

Mobilphone Co., Inc. v. Tenn. Pub. Serv. Comm’n, 876 S.W.2d 106, 11011 (Tenn. Ct.

App. 1993)).

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Here, Appellant contends that the Board’s decision was arbitrary and capricious

because the Board failed to take into account that Appellant worked in the field of

“preventative medicine” from 1999 to 2015, and that, as such, the Board should not have

considered Appellant as being out of practice in the field of emergency medicine. In

support, Appellant relies on Tennessee Rules and Regulations 0880-02-.08, which

provide that when an applicant seeks medical licensure in Tennessee, “an oral

examination may be required[.]” Such an examination may be mandated by the Board

under certain circumstances, including, but not limited to, “applicants for licensure who

have been disciplined in another state; applicants who would be subject to discipline in

Tennessee based on their conduct or condition; or applicants who have not engaged in the

clinical practice of medicine for more than two (2) years.” Tenn. Comp. R. & Regs.

0880-02-.08(3).

In light of the Board’s requirement that Appellant undergo a formal assessment

before being granted licensure, Appellant asserts that the Board relied on the foregoing

regulation, but that this reliance was arbitrary and capricious. Appellant points out that he

has never been sanctioned or disciplined in another state in which he is licensed; more

importantly, however, Appellant urges that he should not be considered as not having

“engaged in the clinical practice of medicine for more than two (2) years” because

Appellant practiced “preventative medicine” from 1999 to 2015 and then worked in two

different emergency rooms in 2016. Indeed, Appellant contends that “he was practicing

preventative medicine for the two years prior to his application, therefore, [Reg. 0880-02-

.03] did not apply[,]” and it was thus inappropriate for the Board to require Appellant to

undergo a formal assessment. Essentially, Appellant avers that because the term “clinical

practice of medicine” is not defined by section 0880-02-.03 or by Tennessee law,4 the

Board should have considered Appellant’s work in preventative medicine the “clinical

practice of medicine.” Not to do so, in Appellant’s view, was arbitrary and capricious.

Respectfully, we do not agree.

Appellant’s argument is correct in the sense that section 0880-02-.03 does not

expressly define “the clinical practice of medicine.” Tenn. R. & Regs. 0880-02-.08. In

the absence of an express definition for the term, however, this Court must give “great

deference” to the agency’s interpretation of the rule:

Courts traditionally demonstrate their respect for administrative agencies in

two ways. First, they generally give great deference to an agency’s

interpretation of its own rules because the agency possesses special

knowledge, expertise, and experience with regard to the subject matter of

the rule. Thus, an agency’s interpretation of its own rules has ‘controlling

weight unless it is plainly erroneous or inconsistent with the regulation.’

4

Our research reveals no caselaw construing this regulation or defining “the clinical practice of

medicine.”

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Pickard v. Tennessee Water Quality Control Bd., 424 S.W.3d 511, 522 (Tenn. 2013)

(quoting BellSouth Adver. & Publ’g Corp. v. Tennessee Regulatory Auth., 79 S.W.3d

506, 514 (Tenn. 2002)) (noting that the second method of respect is the exhaustion of

remedies doctrine); see also Gay v. City of Somerville, 878 S.W.2d 124, 127 (Tenn. Ct.

App. 1994) (“We agree that considerable deference will be granted to an administrative

agency’s interpretation of its own regulation unless the interpretation is inconsistent with

the terms of the regulation.”). Although deference is especially applicable with “regard to

‘doubtful or ambiguous statutes,’ an agency’s statutory interpretation is not binding on

the courts.” Pickard, 424 S.W.3d at 522 (quoting Nashville Mobilphone Co. v. Atkins,

536 S.W.2d 335, 340 (Tenn. 1976)).

Here, the Board found that Appellant “had not seen a patient or practiced clinical

medicine since 1999[.]” The clear implication of this finding is that Appellant’s work

from 1999 to 2016 did not constitute the “clinical practice of medicine.” Appellant has

cited no law to undermine the Board’s apparent conclusion that Appellant was required to

engage in actual patient care to meet this definition. Moreover, nothing in Appellant’s

brief convinces us that the Board acted arbitrarily in finding this regulation applicable

despite Appellant’s belated efforts to engage in some, albeit supervised, direct patient

care for a mere few months prior to the hearing. Here, the Board in interpreting its own

rules found that Appellant had not engaged in clinical practice to a sufficient extent in the

years prior to his application to warrant licensure without examination. Affording the

Board the proper deference, we cannot conclude that it lacked substantial and material

evidence to make this finding.

Even assuming, however, that the Board erred in finding that regulation 0880-02-

.03 was applicable, our inquiry into the propriety of the Board’s decision would not end.

Instead, the subject regulation provides that “the circumstances under which the Board

may require [an] examination include, but are not limited to” the specific circumstances

provided in regulation 0880-02-.03. Accordingly, this regulation affords the Board some

level of discretion in deciding when to require an applicant to undergo a formal

assessment before being granted licensure. In our view, the Board did not err in the

exercise of this discretion.

The undisputed evidence at the contested case hearing was that Appellant has not

been solely responsible for the direct care of a patient in nearly sixteen years. Indeed,

when questioned, Appellant admitted that “the last time [he] had the one-on-one full

responsibility for the entire course of care” for a patient was in 1999. Appellant went on

to testify that the last time he issued a prescription for a patient was also 1999. Rather,

Appellant was engaged in what he deems “preventative care” and the Board characterizes

as “administrative medicine”: the practice of medicine that did not involve independent

or direct patient interaction. Thus, regardless of whether Appellant was not “engaged in

the clinical practice of medicine for more than two (2) years,” the record is undisputed

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that Appellant was not solely and directly responsible for any patient’s care for more than

one and one-half decades.

Based on these undisputed facts, the Board simply determined that Appellant

needs further assessment and perhaps further training before he can be certified in

emergency medicine in Tennessee. We are disinclined to disturb that decision. The

arbitrary and capricious standard requires this Court to consider whether the Board

engaged in a clear error of judgment in its decision, and the Appellant has presented us

with nothing demonstrating that such an error occurred here. Wade, 487 S.W.3d at 131.

Here, the Board simply made a determination that Appellant’s long absence from direct

patient care necessitates a formal assessment before he can engage in the practice of

emergency medicine in Tennessee. Appellant cites no law that persuades us that this

decision was outside the bounds of the Board’s discretion or was not based on any sound

course of reasoning or exercise of judgment, and we thus conclude that the Board’s ruling

was not arbitrary and capricious. As such, Appellant’s second issue raised on appeal is

also without merit.

III.

Finally, Appellant argues that the Board’s decision was unsupported by substantial

and material evidence. “[S]ubstantial and material evidence consists of relevant evidence

which a reasonable mind might accept to support a rational conclusion and which

furnishes a reasonably sound basis for the action being reviewed.” Armstrong, 725

S.W.2d at 955 n.2. “[I]t is less than a preponderance of the evidence, . . . and more than a

‘scintilla or glimmer’ of evidence[.]” StarLink Logistics, 494 S.W.3d at 669. (internal

citation omitted) (quoting Wayne Cnty., 756 S.W.2d at 280). Further, it is not this Court’s

role to resolve conflicting evidence, as this is the task of the relevant administrative

agency. Wade, 487 S.W.3d at 134. We may not “substitute [our] judgment concerning the

weight of the evidence for that of the agency as to questions of fact[,]” and reversal of an

administrative decision is thus inappropriate “solely because the evidence could also

support another result.” Id. (citing Martin v. Sizemore, 78 S.W.3d 249, 276 (Tenn. Ct.

App. 2001)). “Rather, we may reverse an administrative determination only if a

reasonable person would necessarily arrive at a different conclusion based on the

evidence.” Id.

With regard to this issue, Appellant argues that the Board’s decision is

unsupported by substantial and material evidence because the Board “fail[ed] to specify

the grounds upon which [it] denied [Appellant’s] license[,]” and as such, “Appellant and

this Honorable Court are left to wonder what the basis was for denying [Appellant’s]

license.” According to Appellant, the substantial and material evidence standard cannot

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be satisfied here because the basis of the Board’s decision is entirely unclear. Essentially,

Appellant reiterates the argument already rejected in section one of this opinion.5

Again, however, we are unpersuaded by Appellant’s assertion that the Board’s

reasoning in rejecting Appellant’s application is somehow unclear. As discussed at length

supra, the Board rejected Appellant’s application because Appellant has, undisputedly,

not engaged in direct patient care in almost sixteen years. While Appellant asserts that he

is “left to wonder what the basis was for denying” his application, this Court has not

experienced similar difficulty. The Board made its conclusion very clear, and we cannot

find that “a reasonable person would necessarily arrive at a different conclusion based on

the evidence.” Wade, 487 S.W.3d at 134. Simply put, Appellant has not convinced us that

the Board’s final order is unclear, much less that the evidence underpinning that order is

unsupported by substantial and material evidence. Indeed, the relevant evidence in the

present case was largely undisputed. Consequently, we conclude that the Board’s

decision was supported by substantial and material evidence.

In sum, Appellant has failed to persuade us that the Board’s decision was unclear,

arbitrary and capricious, or unsupported by substantial and material evidence. In the

present case, we do “not substitute [our] judgment concerning the weight of the evidence

for that of the Board[’s].” Roy, 310 S.W.3d at 364; see also Wayne Cnty., 756 S.W.2d at

279 (“[T]he courts should be less confident that their judgment is preferable to that of the

[administrative] agency.”); CF Indus., 599 S.W.2d at 540 (explaining that judicial review

of an administrative agency’s action requires a more narrow standard of review than in

other civil appeals). In light of the more stringent standard of review applicable in the

present appeal, and Appellant’s failure to cite any caselaw to convince us otherwise, we

conclude that the trial court did not err in affirming the decision of the Board.

CONCLUSION

5

Appellant argues that two Tennessee cases, Williams v. Tennessee Bd. of Med. Examiners, No.

92-3372-I, 1994 WL 420910 (Tenn. Ct. App. Aug. 12, 1994), and Rich v. Tennessee Bd. of Med.

Examiners, 350 S.W.3d 919 (Tenn. 2011), support his contention that the Board’s decision is not

supported by substantial and material evidence. Both of these cases, however, address a situation in which

a physician already licensed to practice in Tennessee was disciplined by the Board for allegedly unethical

conduct, and the Board was required to articulate the alleged deviation “in order to provide the physician

under investigation a fair opportunity to respond to a charge of negligence.” Rich, 350 S.W.3d at 928. As

such, these cases are distinguishable from the present matter in that no one has ever accused Appellant of

any unprofessional conduct such that Appellant would need to respond to such an allegation. Rather, the

issue in the present case was whether Appellant had sufficient experience to gain initial licensure in

emergency medicine in Tennessee; moreover, Appellant was placed on notice that his work history was a

concern for the Board at least a year before the contested case hearing. Consequently, the foregoing cases

are unpersuasive under the circumstances.

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The order of the Davidson County Chancery Court denying Appellant relief from

the Board’s final order is hereby affirmed. Costs of this appeal are taxed to Appellant,

Andres Perez, for which execution may issue if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

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