Whittle v. Neb. Dep't of Health & Human Servs.

• Decision Date: 16 July 2021
• Docket Number: No. S-20-575.,S-20-575.
• Parties: Thomas B. WHITTLE, M.D., appellant, v. State of Nebraska DEPARTMENT OF HEALTH AND HUMAN SERVICES, Regulation and Licensure, and State of Nebraska ex rel. Douglas Peterson, Attorney General, appellees.
• Court: Nebraska Supreme Court

309 Neb. 695

962 N.W.2d 339

Thomas B. WHITTLE, M.D., appellant,

v.State of Nebraska DEPARTMENT OF HEALTH AND HUMAN SERVICES, Regulation and Licensure, and State of Nebraska ex rel. Douglas Peterson, Attorney General, appellees.

No. S-20-575.

Supreme Court of Nebraska.

Filed July 16, 2021

James A. Snowden and Elizabeth Ryan Cano, of Wolfe, Snowden, Hurd, Ahl, Sitzmann, Tannehill & Hahn, L.L.P., Lincoln, for appellant.

Douglas J. Peterson, Attorney General, Mindy L. Lester, and Milissa Johnson-Wiles, Lincoln, for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Miller-Lerman, J.

I. NATURE OF CASE

The State brought disciplinary charges against Thomas B. Whittle, M.D., alleging that he practiced medicine in a pattern of incompetence and negligence and that he committed acts of unprofessional conduct. Following a hearing, the chief medical officer of the Division of Public Health for the Department of Health and Human Services (the Department) suspended Whittle's license to practice medicine for 6 months. Whittle sought judicial review. The district court for Lancaster County, on de novo review, found that Whittle had over diagnosed and over treated patients and otherwise engaged in a pattern of incompetent or negligent conduct and practiced outside the standard of care. It found that the conclusions of law reached by the Department were correct and affirmed the sanction. Whittle appeals. He asserts that the regulation under which he was found to have engaged in unprofessional conduct is invalid, and he further asserts that the agency and the district court applied an incorrect standard of care, that the proceedings were interjected with religious animus, that evidentiary rulings at both the administrative level and the district court amounted to reversible error, and that he was denied due process. We determine that none of Whittle's claims have merit and, accordingly, affirm.

II. STATEMENT OF FACTS

Whittle is a physician who practices vascular medicine, including surgery, in Lincoln, Lancaster County, Nebraska. He also operated a venous medicine practice in Omaha, Nebraska.

1. PROCEDURAL BACKGROUND

The "Petition for Disciplinary Action" filed by the State against Whittle on July 3, 2017, set forth two causes of action for discipline relevant to this appeal: (1) the practice of the profession in a pattern of negligent conduct, in violation of Neb. Rev. Stat. § 38-178(6)(d) (Reissue 2016), and (2) the practice of the profession outside the acceptable and prevailing standard of care (unprofessional conduct), in violation of § 38-178(23), Neb. Rev. Stat. § 38-179(15) (Reissue 2016), and 172 Neb. Admin. Code, ch. 88, § 010.02(32) (2013). The State also alleged that Whittle failed to keep and maintain adequate records.

Whittle filed a motion to dismiss, a motion to disqualify, and a motion to strike. The administrative order found that the motions, at best, pertained to the credibility of witnesses, not admissibility, and that Whittle's arguments did not support dismissal of the case or exclusion of evidence.

A 16-day administrative hearing was held between May 2018 and February 2019. One of Whittle's former patients testified. The State's designated expert, Thomas Webb, a board-certified vascular surgeon, testified that he reviewed the medical records of a sampling of Whittle's patients, which we will refer to as "Patients A through I," and provided an expert opinion that Whittle was outside the standard of care in their treatment. Webb is the director of vascular surgery for Cardiac Surgery Associates/Franciscan, and prior to moving to Indiana, he practiced vascular medicine in Nebraska as the director of vascular surgery at Bergan Mercy Hospital from 2000 to 2014. Stephen Torpy, Scott Wattenhofer, and Timothy Baxter, Nebraska-area physicians who provided care to patients after they had been treated by Whittle, also testified at the hearing. Whittle and his expert witnesses, Patricia Thorpe and David Gillespie, who are physicians, testified on Whittle's behalf. Thorpe and Gillespie testified generally that no procedure performed by Whittle was outside the standard of care, although in some cases, they would have treated patients differently.

Following the hearing, the Department concluded that the State had proved that Whittle had committed a pattern of incompetent or negligent conduct and departed from the standard of care by (1) over diagnosing eight patients (Patients A through H) and (2) over treating seven patients (Patients A through C, Patients E through G, and Patient I). It found that the State had not carried its burden to show that Whittle failed to keep and maintain adequate records. The Department ordered that Whittle's license to practice medicine be suspended for 6 months; required him to complete an evaluation to assess his competency to treat patients with venous disease; and required him to attend an approved course on "over-diagnosis, over-treatment and evidence-based medical practice."

In its order, the Department found that the evidence "supports a finding by clear and convincing evidence that [Whittle] regularly over-diagnosed patients with venous disease without reference to objective symptoms, physical examinations, or diagnostic tests. In addition, [Whittle] maintained a practice in which he excessively widened disease definitions through use of ‘working diagnoses’ and flawed methodology." The order also concluded that Whittle had over treated Patients A, E, and G because he failed to order adequate trials of conservative therapy.

Whittle sought review of his discipline in the district court under the Administrative Procedure Act. See Neb. Rev. Stat. § 84-901 et seq. (Reissue 2014). Whittle offered briefs into evidence, since they had been submitted in lieu of argument, but the district court refused to admit the briefs. Turning to the substance of the appeal, the district court determined that Whittle received due process by the Department and that the witnesses for the State did not have economic or professional conflicts of interest, an appearance of bias, or religious animus. It found that evidentiary errors, if any, were harmless. Following a de novo review, the district court found that the legal conclusions reached by the Department were correct, that discipline was appropriate, and that suspension of Whittle's credential to practice medicine for a period of 6 months was an appropriate sanction.

2. MEDICAL DEFINITIONS

The administrative order set forth the following definitions of medical terminology, which are helpful for understanding the charges in this case:

• CEAP score is a classification tool used in vascular medicine that assists a physician in objectively describing the pathology and severity of a patient's venous disease. "C" stands for clinical examination, "E" for etiology, "A" for assessment, and "P" for pathology. The basic CEAP score ranges from 0 to 6, with 0 being no venous disease and 6 being the most severe venous disease.

• Chronic venous insufficiency

is a condition that occurs when the venous wall and/or valves are not working effectively, making it difficult for blood to return to the heart from the lungs. Commonly, venous insufficiency is caused by faulty valves in the veins, which results in reflux of blood in the veins.

• Vein coil is a device that is inserted into a vein that causes clotting and seals faulty veins.

• Common iliac veins are veins that connect to the external iliac veins and internal iliac veins. They are located in the abdomen and drain blood from the pelvis and lower limbs.

• Iliocaval confluence is the junction between the common iliac veins and the inferior vena cava.

• Intravascular ultrasound (IVUS) is a surgical diagnostic technique in which an ultrasound device attached to a catheter is inserted into a blood vessel for diagnostic and treatment purposes and is used for, among other purposes, placement of stents

, coils, and plugs.

• Jailing refers to iliac vein occlusion

associated with extension of a stent into the iliocaval confluence that prevents future access into the vein during reintervention or thrombosis (formation of blood clot ) of the right-sided vein (right common iliac vein). Jailing occurs in approximately 1 percent of patients.

• May-Thurner syndrome is a venous disease related to the compression of the left common iliac vein caused by external compression by the right common iliac artery, which results in symptoms in the left leg. It is also referred to as "iliac vein compression

."

• Pelvic congestion syndrome

is pain and other symptoms caused by dilation of pelvic veins. Most patients with pelvic congestion have fullness or heaviness in the pelvis and achiness while sitting or standing.

• Perforators are veins connecting superficial veins and deep veins.

• Vein stent

is a metal mesh tube that is inserted into a vein and expands against blocked or narrowed vein walls and acts to keep the vein open.

• Transvaginal ultrasound

is a surgical diagnostic technique in which an ultrasound device is inserted in a patient's vagina to image the internal aspects of the pelvis, including a patient's veins.

• Venography

is a diagnostic technique which uses x rays and contrast material injected into a vein to show blood flow and potential reflux.

3. WHITTLE'S TREATMENT

Facts related to Patients A through I are set forth below:

(a) Patient A

In March 2016, Patient A, a 41-year-old woman, presented to Whittle with complaints of varicose veins

; pain in her right hip, buttock, and leg; and aching and cramping in her calf. She had previously used compression stockings for a short period of time in 2001, but had not used them since.

On physical examination, Whittle observed varicose veins

in the left leg and spider veins. He did not find edema. In the right leg, Whittle observed pigmentation, shiny atrophic skin, large ropy varicose veins in the calf, and swelling extending up to the midcalf. He did not document...