Poursaied v. Tenn. Bd. of Nursing

• Decision Date: 14 October 2021
• Docket Number: M2020-01235-COA-R3-CV
• Citation: 643 S.W.3d 157
• Parties: Shahnaz POURSAIED v. TENNESSEE BOARD OF NURSING
• Court: Tennessee Court of Appeals

643 S.W.3d 157

Shahnaz POURSAIED

v.TENNESSEE BOARD OF NURSING

No. M2020-01235-COA-R3-CV

Court of Appeals of Tennessee, Middle Section, AT NASHVILLE.

August 4, 2021 Session

FILED October 14, 2021

Permission to Appeal Denied by Supreme Court: February 10, 2022

Shahnaz Poursaied, Huntsville, Alabama, pro se.

Herbert H. Slatery, III, Attorney General and Reporter, Andrée Blumstein, Solicitor General, and Sue Ann Sheldon, Senior Assistant Attorney General, for the appellee, Tennessee Board of Nursing.

Andy D. Bennett, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and W. Neal McBrayer, J., joined.

Andy D. Bennett, J.

Tennessee's Department of Health ("TDH" or "the Department") sought reciprocal revocation of a registered nurse's Tennessee license after her registered nurse license was revoked in California. After a hearing on the matter, which the nurse did not attend, the Tennessee Board of Nursing ("Board") entered a default judgment against the nurse and revoked her Tennessee license. The nurse appealed to the chancery court and brought an action for damages against the Board. The chancery court affirmed the Board's decision and dismissed the nurse's action for damages. The nurse then appealed to this Court. We affirm the chancery court in all respects.

FACTUAL AND PROCEDURAL BACKGROUND

This case involves a reciprocal revocation of a registered nurse license. Shahnaz Poursaied is a registered nurse who, at all times pertinent, was licensed in California and Tennessee. In 2018, Ms. Poursaied accepted a travel nurse assignment with Enloe Medical Center ("Enloe") in Chico, California. While working at Enloe, Ms. Poursaied performed a rectal examination and digital disimpaction on one of her patients. At least three people witnessed Ms. Poursaied perform the procedure on the patient, and they reported that Ms. Poursaied did not have a doctor's order to perform the procedure and that she performed it against the patient's will because the patient told her to stop several times. Based on these allegations, the Board of Registered Nursing for the State of California ("CA Board") initiated proceedings to revoke Ms. Poursaied's California registered nurse license due to gross negligence, incompetence, and unprofessional conduct. The CA Board entered a default judgment against her when she failed to file a notice of defense within fifteen days after receiving notice of the accusations filed against her. The CA Board then proceeded to take action against Ms. Poursaied's California registered nurse license. Based upon all of the investigatory reports, exhibits, and witness statements that had been filed in the case, the CA Board concluded that the allegations against her were "true and correct."¹ Thus, on July 3, 2019, the CA Board revoked Ms. Poursaied's California registered nurse license.

After receiving notification of the CA Board's revocation of Ms. Poursaied's California registered nurse license, TDH served Ms. Poursaied via certified mail, with notice of its intention to file administrative charges against her Tennessee registered nurse license. In the notice, TDH informed Ms. Poursaied that she had an opportunity to show compliance with the requirements for retaining her license.² The Department received the return receipt on September 4, 2019, and it showed that the notice had been delivered to and signed for by Ms. Poursaied.

On October 8, 2019, TDH filed a notice of hearing and charges against Ms. Poursaied with the Tennessee Secretary of State's administrative procedures division and sent copies of the notice to Ms. Poursaied, via both certified mail and first-class mail, which the record shows she received. In the notice, TDH informed Ms. Poursaied that the Board would hear the matter as a contested case on November 20, 2019, and that she had the right to be represented by an attorney, to subpoena witnesses to testify at the hearing, and to present evidence at the hearing.³ The notice contained a warning to Ms. Poursaied that, if she failed "to enter an appearance and defend, a default judgment may be entered." Thereafter, the administrative procedures division assigned an administrative judge to the case who issued a scheduling order on October 17, 2019, cautioning the parties that any failure to participate in any stage of the proceedings "may result in a default ruling against that party."

Between October 29, 2019 and November 19, 2019, Mark Cole, TDH's attorney, exchanged several emails with Ms. Poursaied concerning whether she would attend the contested case hearing. In her responses, Ms. Poursaied repeatedly expressed her infuriation over the charges against her, offered defenses against the charges, and informed Mr. Cole that she did not intend to attend the contested case hearing. The day before the hearing, Ms. Poursaied once again informed Mr. Cole that she did not intend to appear at the hearing:

I can not attend. So no I can not attend it at all, not now and not anywhere in future but thanks for being considerate. I am frustrated and although I do realize obligations that TN board like any regulatory board has towards public safety which gets my highest of respect but since I am seriously harassed and discriminated since Feb. 2018 over this case I cant tolerate it any longer. This is beyond my tolerance as there is limit to ridicule, discriminate and torture.^{[4 ]}

When the administrative judge and a four-member panel of the Board heard the matter on November 20, 2019, Ms. Poursaied failed to appear and no one appeared on her behalf despite the various warnings that such an occurrence could result in a default judgment.⁵ Consequently, TDH moved for a default judgment and requested that it be allowed to proceed with the case. The Department supported its motion by introducing evidence that Ms. Poursaied had received proper notice of the proceedings, including the signed return receipt and the emails she exchanged with Mr. Cole about her unwillingness to attend the hearing.

After the administrative judge considered this evidence and advised the Board that Ms. Poursaied had received legally sufficient notice of the hearing, the Board voted to grant the motion for default judgment and to proceed without Ms. Poursaied.⁶ The Department proceeded by introducing into evidence a certified copy of the CA Board's administrative order revoking Ms. Poursaied's California registered nurse license, an unsworn written statement from Ms. Poursaied to her travel nurse agency defending herself against the California charges, and affidavits from two administrative directors for the Board. The Board then received instructions from the administrative judge,⁷ deliberated, and entered an order revoking Ms. Poursaied's Tennessee registered nurse license⁸ and her multistate privilege to practice in any other party state.

The Board based its decision to revoke Ms. Poursaied's Tennessee registered nurse license on its finding that the CA Board revoked her California license "due to Gross Negligence and Incompetence and Unprofessional Conduct in her performance of a treatment against the patient's will and without a physician's order in a correctional facility."⁹ Relying on this finding, the Board concluded that: (1) facts sufficiently established that discipline was warranted pursuant to Tenn. Code Ann. § 63-1-120(b), which provides for reciprocal discipline of healthcare professionals in this state if they have been disciplined in another state; (2) facts sufficiently established Ms. Poursaied violated Tenn. Code Ann. § 63-7-115(a)(1)(F), which authorizes the Board to discipline a nurse upon proof of unprofessional conduct; and (3) revocation was the appropriate disciplinary action.

Ms. Poursaied filed a petition for review in the chancery court of Shelby County on December 30, 2019, seeking to overturn the Board's decision. After Ms. Poursaied relocated to Huntsville, Alabama, the parties filed an agreed order transferring the case to the chancery court of Lincoln County—the closest chancery court to Ms. Poursaied's new residence.¹⁰ Thereafter, Ms. Poursaied filed a document titled "Tort Claim due to Damage to my health," seeking monetary damages from the state because the state was allegedly "responsible for damage to [her] health as a result of this horrible crime against [her] constitutional rights which has damaged [her] health and reputations." She also filed a motion for sanctions against the Board because it failed to respond to her petition for review.

After hearing the matter, the chancery court entered a memorandum opinion affirming the Board's decision, denying Ms. Poursaied's motion for sanctions, and dismissing her claim for monetary damages. Ms. Poursaied timely appealed and presents numerous issues for our review which we consolidate and restate as follows: (1) whether the chancery court erred in dismissing her claim for monetary damages, (2) whether the chancery court erred in denying her motion for sanctions, and (3) whether the record supports the Board's decision.

STANDARD OF REVIEW

The Uniform Administrative Procedures Act ("UAPA"), Tenn. Code Ann. §§ 4-5-101 to -325, governs judicial review of an administrative agency's decision. See MobileComm of Tenn., Inc. v. Tenn. Pub. Serv. Comm'n , 876 S.W.2d 101, 104 (Tenn. Ct. App. 1993) ; see also City of Memphis v. Civil Serv. Comm'n of City of Memphis , 238 S.W.3d 238, 242 (Tenn. Ct. App. 2007). Under the UAPA, "[t]he reviewing court's standard of review is narrow and deferential." StarLink Logistics Inc. v. ACC, LLC , 494 S.W.3d 659, 668 (Tenn. 2016). The UAPA limits reversal or modification of an agency's decision to situations where the decision is:

(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)(i) Unsupported

...