Kleier v. Tenn. Bd. of Med. Examiners

• Decision Date: 09 January 2013
• Docket Number: No. M2012-00463-COA-R3-CV,M2012-00463-COA-R3-CV
• Parties: ERNEST B. KLEIER, JR., M. D. v. TENNESSEE BOARD OF MEDICAL EXAMINERS
• Court: Tennessee Court of Appeals

ERNEST B. KLEIER, JR., M. D. v. TENNESSEE BOARD OF MEDICAL EXAMINERS

No. M2012-00463-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

November 16, 2012 Session

Filed January 9, 2013

Appeal from the Chancery Court for Davidson County

No. 10588II

Carol L. McCoy, Chancellor

A physician convicted of driving under the influence in another state was adjudged to have engaged in "unprofessional, dishonorable or unethical conduct", as proscribed by Tenn. Code Ann. § 63-6-214(b)(1), by the Tennessee Board of Medical Examiners; the Board placed the physician's medical license on probation and ordered him to obtain treatment and counseling. On petition for review, the Chancery Court held that the statute was unconstitutionally vague and reversed the Board's decision. We reverse, holding that Tenn. Code Ann. § 63-6-214(b)(1) provides sufficient notice to the physician that his conduct was subject to potential discipline by the Board.

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

Case Remanded

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR. and ANDY D. BENNETT, JJ., joined.

Sara Elizabeth Sedgwick and William E. Young, Nashville, Tennessee, for the Appellant, Tennessee Board of Medical Examiners.

Daniel Davis Warlick, Nashville, Tennessee, for the Appellee, Ernest B. Kleier, Jr., M. D.

OPINION

Dr. Ernest B. Kleier, Jr., is a physician licensed to practice in Tennessee; on July 6, 2008 he was arrested in Lake of the Ozarks, Missouri, for driving under the influence. He pled guilty to the misdemeanor charge on September 23, 2008. On September 22, 2009, the Tennessee Board of Medical Examiners ("the Board") issued a Notice of Charges, charging Dr. Kleier with unprofessional, dishonorable or unethical conduct, based on his guilty plea.A hearing was held before a panel of the Board on January 27, 2010, at which Aaron Harrison, the state trooper who arrested Dr. Kleier, Kenneth Baker, owner and program director of Behavioral Treatment Providers, LLC, and Dr. Kleier testified.

On February 10, 2010, the Board issued its Final Order in which it made the following findings of fact:

2. On September 23, 2008, [Dr. Kleier] pled guilty to DUI, a misdemeanor in Missouri.

3. Blood alcohol contents that was drawn [from Dr. Kleier] over an hour after the [traffic stop] was .182, more than twice the legal limit.

4. The video evidence clearly shows that [Dr. Kleier] was impaired at the time of the [traffic stop]."

The Board concluded that Dr. Kleier had violated Tenn. Code Ann. § 63-6-214(b)(1).¹ The Board placed Dr. Kleier's medical license on probation for a term of two years, required him to "undergo an evaluation by the Vanderbilt Comprehensive Assessment Program ("VCAP") . . . within 90 days" and to "obtain and maintain the advocacy of the Tennessee Medical Foundation ("TMF") program for a period of not less than two (2) years[.]" The order provided that Dr. Kleier could, after a six-month period, petition the Board for an Order of Compliance to lift the probation of his license.

Dr. Kleier filed a petition for a rehearing in which he alleged that the Notice of Charges was impermissibly vague, that the requirement that he undergo an evaluation by an addiction assessment program was "not based on a foundation of factual evidence[,]" and that TMF had informed Dr. Kleier that "under the facts and circumstances of this case, [he] was not a proper candidate for inclusion in any TMF program." The petition was denied.

Dr. Kleier timely filed a Petition for Review of Agency Action in the Chancery Court pursuant to Tenn. Code Ann. § 4-5-322, in which he alleged that the Board's action in "placing his license on probation with conditions was arbitrary and capricious, made upon an unlawful procedure and is unsupported by evidence that is both substantial and material in the light of the entire record." On April 29, 2011, the Board filed its Brief on JudicialReview asserting that the Board's final order was supported by substantial and material evidence and was not arbitrary and capricious; oral arguments were heard on July 14, 2011.²

On January 23, 2012, the court issued a Memorandum and Order holding:

[T]he charge against Dr. Kleier did not describe the minimally acceptable level of professional performance that he was required to meet or had failed to meet. . . . Nor did the charge filed against Dr. Kleier state the conduct that exemplified one or more of [the terms unprofessional, dishonorable or unethical].

***

Absent some definition of the standard of care, the general terms in Tenn. Code Ann. § 63-6-214(b)(1) are impermissibly vague as is the charge brought against Dr. Kleier.

The court reversed the Board's decision.

The Board appeals and articulates the issues as follows:

1. The Chancellor erred by reversing the Board's Final Order placing Dr. Kleier's license on probation and requiring him to seek counseling to determine if he had an alcohol abuse problem and, if so, to obtain treatment.

2. The Chancellor erred in requiring the Board to articulate a standard of care, when the medical standard of care was not an issue in the specific disciplinary charge brought against Dr. Kleier under Tenn. Code Ann. § 63-6-214(b)(1) for unprofessional and dishonorable conduct.

3. The Chancellor erred by concluding that the general terms of Tenn. Code Ann. § 63-6-214(b)(1), as well as the charge brought against Dr. Kleier, were impermissibly void for vagueness and thereby violated constitutional due process standards.

DISCUSSION

Disciplinary proceedings against medical licensees are conducted in accordance with the Uniform Administrative Procedures Act ("UAPA"). Tenn. Code Ann. § 63-6-216. Court review of UAPA proceedings is set forth at Tenn. Code Ann. § 4-5-322(h), which providesthat a court may modify or reverse the decision of an administrative agency if the agency's 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;

4) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or

5) (A) Unsupported by evidence which is both substantial and material in the light of the entire record.

This Court reviews an administrative decision under the same standard as the trial court. Miller v. Tenn. Board of Nursing, 256 S.W.3d 225, 229 (Tenn. Ct. App. 2007). When we review the decision of the trial court, we determine whether the trial court properly applied the standard of review found in Tenn. Code Ann. § 4-5-322(h). See Jones v. Bureau of Tenn Care, 94 S.W.3d 495, 501 (Tenn. Ct. App. 2002) (quoting Papachristou v. Univ. of Tenn., 29 S.W.3d 487, 490 (Tenn. Ct. App. 2000)).

Construction of statutes is a question of law, which we review de novo without affording the trial court's decision any presumption of correctness. Lovelace v. City of Knoxville, No. E2000-01609-COA-R3-CV, 2001 WL 293001, at *4 (Tenn. Ct. App. March 27, 2001); City of Jackson v. Shehata, No. W2005-01522-COA-R3-CV, 2006 WL 2106005, at *4 (Tenn. Ct. App. July 31, 2006) (citing City of Knoxville v. Entm't Res., LLC, 166 S.W.3d 650, 655 (Tenn. 2005)).

The trial court held that "[a]bsent some definition of the standard of care or a violation of a specific standard of care or professional practice standard, the general terms in Tenn. Code Ann. § 63-6-214(b)(1) are impermissibly vague[.]" The Board contends that Dr. Kleier was given sufficient notice that the conduct for which he was being disciplined was "specifically prohibited as a violation of the Medical Practice Act" and, consequently, did not violate due process standards.

Vagueness

An individual's license to practice medicine is a constitutionally protected property interest which can be revoked, suspended or denied only upon proof of culpable conduct; absent such proof, a physician has a reasonable expectation that he or she will continue to hold the license. Martin v. Sizemore, 78 S.W.3d 249, 262-263 (Tenn. 2001). The property interest is protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Art. I, § 8 of the Tennessee Constitution. Id. It is fundamental to theconcept of due process that a statute does not provide the requisite notice to the individual "if its prohibitions are not clearly defined." Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 531 (Tenn. 1993) (citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)).³ A statute is too vague to satisfy the notice requirement when "men of common intelligence must necessarily guess at its meaning and differ as to its application." Williams v. State Dept. of Health and Env't, 880 S.W.2d 955, 958-59 (Tenn. Ct. App. 1994) (citing Leech v. Am. Booksellers Assoc., Inc., 582 S.W.2d 738, 746 (Tenn. 1979)).

Of particular import to the case at bar is the following language from Janeway v. State Bd. of Chiropractic Examiners:

The right to practice a lawful profession is a property right of which one cannot be illegally deprived. State Bd. of Medical Examiners v. Friedman, 150 Tenn. 152, 263 S.W. 75; Prosterman v. Tennessee State Board of Dental Examiners, 168 Tenn. 16, 22, 73 S.W.2d 687. But a license to practice a profession affecting the welfare of the public and, therefore, subject to the police power of the state is not a contract entitling the holder to continue the practice of his profession unrestricted and unregulated. State Bd. of Medical Examiners v. Friedman, supra. The Legislature unquestionably has the right in the exercise of the police power of the state to set up boards to investigate the practice of such a profession and to endow such boards with the right and duty to revoke for good cause a license previously granted.

The power so delegated, however, can involve only a discretion as to when a proper occasion exists for executing the power. It cannot extend to the

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