Feldman v. TN Bd. of Medical Examiners ( 2000 )


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  •                  IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    RICHARD FELDMAN v. TENNESSEE BOARD OF MEDICAL
    EXAMINERS
    Appeal from the Chancery Court for Davidson County
    No. 98-3217-I Irvin H. Kilcrease, Jr., Chancellor
    No. M1999-00474-COA-R7-CV - Decided April 26, 2000
    The Board of Medical Examiners disciplined a physician for “unprofessional, dishonorable or
    unethical conduct,” and placed his license on probation for one year, with continuation of his
    practice subject to conditions which included obtaining the “advocacy” of another doctor. The
    following year, the Board issued a new notice of charges, alleging failure to comply with the
    conditions in the probationary order. After a hearing, the Board found the physician guilty of the
    new charges, and placed his license on probation for five years, with new conditions placed upon the
    continuation of his practice. The physician petitioned the chancery court for judicial review of the
    Board’s action. The chancellor affirmed the order of the Board. On appeal, we affirm the new order
    of probation, but reverse as to those conditions which are unsupported by the evidence in the record.
    Tenn. R. App. P. 7 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part;
    Vacated in Part; and Remanded
    CANTRELL , P.J., M.S., delivered the opinion of the court, in which KOCH , and COTTRELL , JJ joined.
    Frank J. Scanlon, Nashville, Tennessee, for the appellant, Richard Feldman.
    Paul G. Summers, Attorney General and Reporter, Michelle Hohnke Joss, Assistant Attorney
    General, for the appellee, Tennessee Board of Medical Examiners.
    OPINION
    I.
    PROBATION
    In 1997, the Tennessee Board of Medical Examiners heard charges of “unprofessional,
    dishonorable or unethical conduct” against Dr. Richard Feldman, a Nashville physician in private
    practice. See Tenn. Code. Ann. § 63-6-214(b)(1). The substance of the charges had to do with
    inappropriate conduct towards female patients and staff.
    On February 10, 1997, the Board issued findings of fact consistent with the charges. These
    included findings that Dr. Feldman had engaged in sexual intercourse with a teenage patient, had
    made derogatory and insensitive comments to female staff and patients, and that he had exchanged
    medical treatment and prescriptions for sex at a massage parlor. The Board put Dr. Feldman’s
    license to practice medicine on probation for one year, and set conditions upon his practice during
    the period of probation. The conditions relevant to this appeal are recited below:
    Respondent shall obtain the advocacy of David Dodd, M.D. of the Physicians’ Health
    Program within three months of the effective date of this Order or face automatic
    suspension.
    It is Respondent’s responsibility to obtain Dr. Dodd’s advocacy and report back to
    the Board within ninety (90) days with evidence that he has obtained Dr. Dodd’s
    advocacy to continue practice while undergoing evaluation and, if necessary, therapy
    for impulse control problems.
    Other conditions included personal delivery by Dr. Feldman of the Board’s order to the
    Medical Director and administrator of all hospitals in which he had been granted practice privileges,
    as well as a civil fine of $2,500.
    II.
    NEW CHARGES
    On February 6, 1998, the Board issued a new Notice of Charges against Dr. Feldman, which
    alleged that he had failed to obtain the advocacy of Dr. Dodd, and had failed to submit the required
    notice to the Board.
    a. Advocacy
    A contested case hearing on the new charges was convened before an administrative judge
    on July 21, 1998, with the Board sitting as a jury. Dr. Dodd testified that he had been the director
    of the Tennessee Medical Foundation, a program for physicians impaired by mental or emotional
    illness, and that the foundation offered “advocacy” for impaired physicians in their dealings with
    hospitals, insurance companies, courts, and the Board of Medical Examiners, in exchange for
    compliance with recommended treatment and documentation of effort.
    Dr. Dodd agreed to advocate for Dr. Feldman, and recommended that he go to a specific
    psychiatrist at the Menninger Clinic for a psychological assessment. After an assessment of several
    days in early March 1998, Dr. Feldman was diagnosed with narcissistic personality disorder and
    sexual addiction, two conditions that require long-term treatment. The assessing psychiatrist
    recommended that Dr. Feldman return to the clinic for six continuous weeks of treatment. Dr.
    Feldman did return, but left the Menninger Clinic after three weeks. After returning, he did not
    communicate with Dr. Dodd, and he lost Dr. Dodd’s advocacy.
    -2-
    Dr. Feldman subsequently returned to the Menninger Clinic, and completed three additional
    weeks in two sessions. He also began treatment with a psychologist, Dr. Larry Weitz, and began
    attending regular meetings of Sex Addicts Anonymous. Dr. Weitz testified that Dr. Feldman had
    made real progress in dealing with his problems. The week prior to the hearing, Dr. Dodd and Dr.
    Feldman signed an agreement to restore Dr. Dodd’s advocacy
    b. Notice
    Dr. Feldman’s testimony was somewhat self-contradictory in regard to his attempts to notify
    the Board of his compliance with its orders. He said that he attended a Board meeting in order to
    personally tell Dr. David Cunningham, the Chairman of the panel that heard his case, that he had
    obtained Dr. Dodd’s advocacy within the period of time required by the 1997 order of probation, but
    that the security officers physically prevented him from approaching. He also claimed that he
    telephoned Dr. Cunningham several times, and left messages for him on four or five occasions, but
    that none of his messages were ever returned.
    Dr. Feldman also testified that he thought that Dr. Dodd’s own contact with the Board would
    satisfy the requirement of notice. In response to questions, he complained that the Board’s order did
    not specify in what manner the Board was to be notified, and he claimed to be following his
    attorney’s suggestions as to the methods of notification to employ.
    c. The Board’s Findings
    The Board of Medical Examiners found after deliberation that Dr. Feldman had failed to
    obtain the advocacy of Dr. Dodd, and failed to report such advocacy to the Board. In an order filed
    August 31, 1998, the Board concluded that Dr. Feldman’s failure to comply with a lawful order of
    the Board constituted unprofessional conduct in violation of Tenn. Code. Ann. § 63-6-214(b)(1) and
    (b)(2).
    The sanctions imposed by the Board for Dr. Feldman’s unprofessional conduct were prefaced
    by a policy statement:
    This action is taken so that this physician can continue to provide proper and
    adequate care to the citizens of the State of Tennessee and for the safety and welfare
    of the citizens of Tennessee.
    Among the sanctions ordered were the following:
    1. Respondent’s license is placed on PROBATION for a period of five (5) years,
    effective July 21, 1998.
    2. Respondent must maintain the continued advocacy of the Tennessee Medical
    Foundation for the entire probationary period (five (5) years) or face automatic
    suspension.
    -3-
    3. Respondent shall submit in writing proof of his continued advocacy by the
    Tennessee Medical Foundation to the Board yearly. The reports shall be sent by
    certified mail to the Tennessee Board of Medical Examiners, attention Linda
    Hudgins, 1st Floor, Cordell Hull Building, 425 Fifth Avenue North, Nashville, TN
    37247-1010.
    4. Respondent must obtain an evaluation by the Menninger Clinic yearly throughout
    the entire term of his probation. Respondent must provide the written results of his
    yearly evaluation to the Tennessee Board of Medical Examiners and to the Tennessee
    Medical Foundation.
    d. Proceedings in Chancery Court
    On October 28, 1998, Dr. Feldman filed a petition for judicial review in the Chancery Court
    of Davidson County. See Tenn. Code. Ann. § 4-5-322. The Court affirmed the action of the Board
    of Medical Examiners, finding that there was substantial and material evidence in the record to
    support the Board’s finding that Dr. Feldman violated its order of February 11, 1997, and was guilty
    of unprofessional conduct. Further, the court found that the Board did not act arbitrarily or
    capriciously, nor did it abuse its discretion, in imposing the sanctions it did. This appeal followed.
    IV.
    ARGUMENTS ON APPEAL
    Upon appeal of a decision taken by an administrative agency following a contested case
    proceeding, the standard of review in this court is the same as it is in the chancery court. Ware v.
    Green, 
    984 S.W.2d 610
    , 614 (Tenn. Ct. App. 1998). That standard is stated in Tenn. Code. Ann. §
    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;
    (4) Arbitrary or capricious or characterized by abuse of discretion or clearly
    unwarranted exercise of discretion; or
    (5) Unsupported by evidence which is both substantial and material in the
    light of the entire record.
    -4-
    a. Findings of Fact
    Dr. Feldman argues on appeal that the Board’s findings of fact are unsupported by substantial
    and material evidence in the record. He contends that since it is unrefuted that he met with Dr.
    Dodd, and that Dr. Dodd agreed to advocate for him less than two weeks after the Board’s order of
    February 11, 1997, there is no evidence that he failed to obtain Dr. Dodd’s advocacy as required by
    the order. He also contends that he made all reasonable attempts to report his status to the Board,
    and that the fact that those attempts were unsuccessful does not, under the circumstances, support
    the Board’s finding that he violated its order. We do not agree with either of these arguments.
    The record indicates that the advocacy of Dr. Dodd was a requirement the appellant had to
    meet in order to continue practicing medicine while his license was on probation. It is true that the
    order said that he had to “obtain” that advocacy within three months, but it appears obvious to us that
    the purpose of the requirement was to give Dr. Feldman a reasonable amount of time to arrive at an
    appropriate arrangement, not to enable him to practice without having to meet the requirements
    established by Dr. Dodd.
    Dr. Dodd’s testimony indicates that his advocacy was not intended to be a one-way street,
    but was conditional on the appellant’s compliance with the treatment Dr. Dodd recommended. Both
    Dr. Feldman’s and Dr. Dodd’s testimony indicate that Dr. Feldman did not complete his treatment
    at the Menninger Clinic in a manner consistent with Dr. Dodd’s wishes, and that when Dr. Feldman
    returned from the clinic after three weeks, he failed to contact Dr. Dodd for an extended period of
    time.
    Dr. Feldman testified that he cut his treatment at the Menninger Clinic short because of a
    continuing financial crisis in his practice that required his attention. If he had informed Dr. Dodd
    of this circumstance, perhaps Dr. Dodd would have found another way to make sure that the
    appellant received appropriate treatment. Instead, Dr. Feldman avoided Dr. Dodd, and began a
    course of treatment of his own choosing. We do not believe such self-treatment meets the advocacy
    requirements set out by the Board. We note that in its more recent order, the Board eliminated any
    possible ambiguity by requiring the appellant to “maintain the continued advocacy of the Tennessee
    Medical Foundation,” rather than just to obtain it.
    As for his failure to notify the Board, we find it difficult to believe that a man as well-
    educated as Dr. Feldman would be unable to discover an appropriate method to communicate with
    the Board that regulates his own profession. We note that the appellant managed to pay the civil
    penalty assessed by the Board, and to call to confirm that his check had been received. We also find
    it unworthy of belief that Dr. Feldman thought the notification requirement of the Board’s order was
    somehow satisfied by contact between Dr. Dodd and the Board. Again, the Board attempted to
    forestall any future use of such an argument by specifying the means of notification in its order of
    August 31, 1998.
    Dr. Feldman also argues that the Board erred in finding that his failure to comply with its
    orders constituted unprofessional conduct. The gist of his argument is that the term should be
    -5-
    reserved only for the most egregious conduct, conduct that also must be considered immoral or
    dishonorable.
    We note, however, that Tenn. Code. Ann. § 63-6-214(b) sets out grounds for disciplining a
    medical license, and that these include “[u]nprofessional, dishonorable or unethical conduct.” In its
    deliberations, the Board determined that Dr. Feldman’s conduct was unprofessional, but could not
    be considered dishonorable or unethical, thus sustaining a valuable distinction that the appellant
    would rather we ignore. Such a distinction is consistent with the idea that an individual who has
    been entrusted with a license to a practice medicine is charged with a higher standard of conduct than
    is a layperson
    b. The Severity of the Sanctions
    Dr. Feldman argues that the five year probation imposed by the Board amounted to an
    arbitrary or capricious decision because it is “not based on any course of reasoning” or it “disregards
    the facts or circumstances of a case without some basis.” Jackson Mobilphone v. Tennessee PSC,
    
    876 S.W.2d 106
    , 111 (Tenn. Ct. App. 1993).
    We note, however, that in his testimony, Dr. Dodd stated that rehabilitation for narcissistic
    personality disorder is a long-term process. Further, Dr. Larry Weitz stated that from his long
    experience of working with people who have addictions, it is a lifelong process, and that addiction
    is managed rather than cured. It thus appears to us that putting the appellant’s license on probation
    for five years while he continues in treatment is based upon sound reasoning, and is not arbitrary or
    capricious.
    We feel otherwise about the Board’s requirement that Dr. Feldman submit to an annual
    assessment at the Menninger Clinic, and that the written results of that assessment be submitted to
    the Board of Medical Examiners and the Tennessee Medical Foundation. Dr. Feldman particularly
    objects to the requirement that the Menninger Clinic report to the Board, for any such report would
    become part of the public record by operation of law.
    We agree with the appellant that there is no proof in the record that annual evaluations at the
    Menninger Clinic are advisable from a rehabilitation point of view. The record indicates rather that
    Dr. Feldman’s treating doctors at Menninger did not want him to return, but felt that the
    responsibility for his treatment and evaluation rested appropriately with his current providers. Both
    Dr. Dodd and Dr. Weitz testified that Dr. Feldman had made significant progress and was on the
    right track to rehabilitation, and neither recommended a return to the Menninger Clinic for any
    purpose. We therefore find there to be no material evidence in the record to support this portion of
    the Board’s order.
    V.
    We vacate paragraph 4 of the order of the Board of Examiners, which requires the appellant
    to undergo annual evaluations at the Menninger Clinic, and to supply written results of such
    -6-
    evaluations to the Tennessee Medical Foundation and the Board of Medical Examiners. In all other
    respects, we affirm the orders of the trial court and of the Board. Remand this cause to the Chancery
    Court of Davidson County for further proceedings consistent with this opinion. Tax the costs on
    appeal equally between the appellant, Richard Feldman, M.D., and the appellee, the Tennessee Board
    of Medical Examiners.
    -7-
    

Document Info

Docket Number: M1999-00474-COA-R7-CV

Judges: Judge Ben H. Cantrell

Filed Date: 4/26/2000

Precedential Status: Precedential

Modified Date: 10/30/2014