# Miller v. Tennessee Board of Nursing > Court of Appeals of Tennessee · October 22, 2007 · 256 S.W.3d 225 URL: https://www.frixlaw.com/law-library/cases/9756717 ## Case - **Full name:** Jean Louise MILLER v. TENNESSEE BOARD OF NURSING - **Court:** Court of Appeals of Tennessee - **Decided:** October 22, 2007 - **Citations:** 256 S.W.3d 225; 2007 Tenn. App. LEXIS 826 - **Precedential status:** Published - **Opinion:** On rehearing by Koch - **Judges:** Clement, Cottrell, Frank, Koch, Patricia - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9756717 ## Opinion text OPINION DENYING PETITION FOR REHEARING WILLIAM C. KOCH, Jr., P.J., M.S. The Tennessee Board of Nursing has filed a petition in accordance with Tenn. R. App. P. SO requesting a rehearing in this case. The Board requests this Court to revisit the conclusion in our September 26, 2007 opinion that is lacked authority to suspend Ms. Miller’s nursing license pending a psychological evaluation in the absence of an competent evidence that Ms. Miller was psychologically impaired. Specifically, the Board asserts that a “long, rambling letter” written by Ms. Miller provides an ample evidentiary basis for it conclusion that Ms. Miller’s license should be suspended pending a psychological examination. The Board also asserts that it has the authority to impose “sanctions that go beyond any sanctions requested by the Division.” The Division of Health Related Boards made that strategic decision to address its concerns regarding Ms. Miller’s psychological condition in the context of a disciplinary hearing. It asserted that Ms. Miller should be disciplined in accordance with *234 Tenn. Code Ann. § 63-7-115 (a)(l)(E) (2004) because she was mentally incompetent. However, nowhere in its notice of charges did the Division request that Ms. Miller’s license be suspended because she was psychologically impaired. 1 During the contested case hearing, the Division presented no evidence, in the form of expert opinions, that Ms. Miller was psychologically unfit to practice nursing. The Board clearly has the statutory authority to revoke or suspend a nurse’s license on the ground that the nurse is not psychologically competent to practice nursing. However, its ability to do so is governed by the fundamental tenets of due process, the adequacy of the Division’s notice of charges, and the competent evidence presented during the contested ease hearing. Procedural due process required a government entity to employ fundamentally fair procedures whenever it acts to deprive a person of a right to or interest in life, liberty, or property. Fuentes v. Shevin, 407 U.S. 67, 80 , 92 S.Ct. 1983, 1994 (1972); Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 309 (Tenn. 2005). The right to engage in one’s chosen profession or occupation without unreasonable government interference or deprivation is both a property and a liberty interest protected by the Due Process Clause of the Fourteenth Amendment and Article I, Section 8 of the Constitution of Tennessee. Greene v. McElroy, 360 U.S. 474, 492 , 79 S.Ct. 1400, 1411 , 3 L.Ed.2d 1377 (1959); McNiel v. Cooper, 241 S.W.3d 886, 895 (Tenn. Ct. App. 2007). In its most general terms, procedural due process requires appropriate notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Manning v. City of Lebanon, 124 S.W.3d 562, 566 (Tenn Ct. App. 2005). In eases of this sort, appropriate notice includes not only notice of offending conduct but also notice of the penalties being sought. See Maskaron v. Dep’t of Prof'l Regulation, 450 So.2d 1242, 1244 (Fla. Dist. Ct. App. 1984) (setting aside the five-year suspension of a physician’s license when the notice of charges referred only to probation); Bd. of Med. Exam’rs v. Schutzbank, 94 Ariz. 281 , 383 P.2d 192, 193-94 (1963) (setting aside the revocation of a physician’s license because of notice of hearing referred only to a suspension). Based on our examination of the Division’s notice of charges, we concluded in our September 26, 2007 opinion that the notice did not fairly appraise Ms. Miller that the Division was seeking either the revocation or the suspension of her nursing license. The only remedies specifically requested by the Division were (1) civil penalties linked with specific causes of action and (2) the costs of the proceeding. We also concluded in our September 26, 2007 opinion that the Division presented no competent evidence regarding Ms. Miller’s psychological condition. 2 Thus, in light of the shortcomings in the Division’s notice of charges and the factual deficiencies in the Division’s case, the Board could not, at least in this proceeding, suspend Ms. Mil *235 ler’s license pending a psychological evaluation. The Board’s petition for rehearing is respectfully denied. . The Division noted that the Board has the authority to revoke or suspend a license for mental incompetency, but it did not specifically request this punishment. . The Division argues for the first time in its petition for rehearing that a "long, rambling letter” written by Ms. Miller provides ample evidence that she is sufficiently psychologically impaired to be suspended from nursing. While the letter proves Ms. Miller has not mastered the fine points of the rules of grammar and spelling, the mere length, organization, and content of the letter provided insufficient basis for concluding that Ms. Miller is unfit to practice nursing. Many lawyers and judges would not rest easily if they thought that the length, organization, and content of their writings provided a basis to question their psychological competence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9756717. Public record. Not legal advice.