FRANK MCNIEL, M.D. and JANET        )
MCNIEL, M.D.,                       )   Davidson Chancery
                                    )   No. 95-1400-I
      Petitioners/Appellants,       )
                                    )
VS.                                 )
                                    )   Appeal No.
TENNESSEE BOARD OF MEDICAL          )   01-A-01-9608-CH-00383
EXAMINERS,                          )

      Respondent/Appellee.
                                    )
                                    )                           FILED
                                                                March 5, 1997

                   IN THE COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
                        MIDDLE SECTION AT NASHVILLE   Appellate Court Clerk

      APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE

             HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR



WATKINS, MCGUGIN, MCNEILLY & ROWAN
Frank J. Scanlon #3588
214 Second Avenue North
Suite 300
Nashville, TN 37201

ATTORNEY FOR PLAINTIFFS/APPELLANTS


Michelle K. Hohnke #16736
Assistant Attorney General
1510 Parkway Towers
404 James Robertson Parkway
Nashville, TN 37243-0499

ATTORNEY FOR DEFENDANT/APPELLEE


                      REVERSED, VACATED AND REMANDED


                                   HENRY F. TODD
                                   PRESIDING JUDGE, MIDDLE SECTION


CONCUR:
SAMUEL L. LEWIS, JUDGE


CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
FRANK MCNIEL, M.D. and JANET                    )
MCNIEL, M.D.,                                   )   Davidson Chancery
                                                )   No. 95-1400-I
       Petitioners/Appellants,                  )
                                                )
VS.                                             )
                                                )   Appeal No.
TENNESSEE BOARD OF MEDICAL                      )   01-A-01-9608-CH-00383
EXAMINERS,                                      )
                                                )
       Respondent/Appellee.                     )


                                        O P I N I O N


       The captioned petitioners sought judicial review and reversal of the administrative order of

the respondent Board subjecting them to discipline for professional misconduct. From a judgment

affirming the administrative order, the petitioners have appealed, presenting the issue for review in

the following terms:

                 The Petitioner-Appellants, Frank McNiel, M.D. and Janet
               McNiel, M.D., respectfully submit that the issue presented for
               review in this case is whether or not the Tennessee Board of
               Medical Examiners’ decision to discipline their license to
               practice medicine in Tennessee should be reversed pursuant to
               T.C.A. §4-5-322(h) of the Tennessee Uniform Administrative
               Procedures Act, in that the decision was not supported by
               substantial and material evidence and was otherwise arbitrary
               and capricious.

                 Specifically, this Court must determine whether or not to
               uphold, under T.C.A. § 4-5-322(h), the Board’s conclusions
               of law that Frank McNiel, M.D. and Janet McNiel, M.D.
               in prescribing controlled substances to 16 patients for
               chronic, nonmalignant pain, incompetence, unprofessional
               and unethical conduct, prescribing not in good faith to cure
               an ailment and prescribing to addicts without an attempt to
               cure their addiction in violation of T.C.A. § 63-6-214(b)(1),
               (4), (12) and (13) of the Tennessee Medical Practice Act.


       T.C.A. § 4-5-322(h) reads as follows:

                  (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-
          (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.

       In determining the substantiality of evidence, the court shall
       take into account whatever in the record fairly detracts from
       its weight, but the court shall not substitute its judgment for
       that of the agency as to the weight of the evidence on
       questions of fact.


T.C.A. § 63-6-214 reads in pertinent part as follows:

         63-6-214. Grounds for license denial, suspension revocation
       - Reporting misconduct. - (a) The board has the power to:

       (3) Suspend or limit or restrict a previously issued license
       for such time and in such manner as the Board may determine.
                                     ---
       (4) Reprimand or take such action in relation to disciplining
       an applicant or licensee, including, but not limited to,
       informal settlements, private censures and warnings, as the
       board in its discretion may deem proper; or
                                     ---
       (b) The grounds upon which the board shall exercise such
       power include, but are not limited to:

       (1) Unprofessional, dishonorable or unethical conduct.

       (4) Gross malpractice, or a pattern of continued or
       repeated malpractice, ignorance, negligence or incom-
       petence in the course of medical practice.
                      ---
       (12) Dispensing, prescribing or otherwise distributing any
       controlled substance or any other drug not in the course of
       professional practice, or not in good faith to relieve pain and
       suffering, or not to cure an ailment, physical infirmity or
       disease, or in amounts and/or for durations not medically
       necessary, advisable or justified for a diagnosed condition.

       (13) Dispensing, prescribing or otherwise distributing to
       any person a controlled substance or other drug if such
       person is addicted to the habit of using controlled
       substances without making a bona fide effort to cure the
       habit of such patient.


The Petitioners are spouses and associates in the practice of medicine under licensure and

                                       -3-
regulation by the Board. On March 25, 1994, and March 28, 1994, Dr. Frank McNiel was served

with charges and amended charges of violation of T.C.A. § 63-6-214(b), (1), (4), (12) and (13). On

April 24, 1994, Dr. Janet McNiel was served with similar charges. On May 27, 1994, the two cases

were consolidated, and hearings were held in August and September 19, 1994, and January and

February, 1995, at the conclusion of which the following discussion occurred between members of

the Board:

               MR. McCALLUM: We’ll get to that. Now then gentlemen,
               what are your wishes? We have heard no dispute regarding
               the 50 some odd facts presented in the original charge.

               MR. CUNNINGHAM: I move that we accept these facts as
               presented in the original charge. Not the last handout, the
               original charge. Those are not contested, as you say, as facts.

               DR. BOLTON: I’ll agree and second that.

               MR. McCALLUM: All those in favor say aye. And the
               Chairman votes aye.

                      (Whereupon, said motion carried unanimously.)

               MR. McCALLUM: So therefore we have accepted the facts
               as presented in the original statement of charges.

               MR. McCALLUM: Okay. You adopted the findings of fact.
               That we are also adopting the allegations of law. We haven’t.

               THE COURT: So you couldn’t be done with your delibera-
               tions as to that because you have to decide what violations
               of law there were. That’s what we are down to.

               MR. McCALLUM: So therefore, we are now down to what
               are the violations of law that apply.

               DR. BOLTON: I would suggest then that we take the
               violations separately as it’s in this packet and go through the
               violations.

               MR. McCALLUM: What page are you on?

               BY DR. BOLTON: I am on page 26.

               MR. McCALLUM: You are saying that you would like to
               propose that we strike dishonorable from number one and
               adopt the other two.

               DR. BOLTON: Yes, sir.


                                               -4-
              MR. McCALLUM; Dr. Cunningham, are in concurrence
              with this?

              MR. CUNNINGHAM: Yes.

              MR. McCALLUM: and the Chairman is too. So therefore
              all three people have expressed a positive desire for this.
              Number two.

              MR. McCALLUM: So you’re recommending that line two
              we strike gross malpractice and in line three we strike
              malpractice. What about it, Dr. Cunningham?

               MR. McCALLUM: So therefore we are in agreement that
               you strike gross malpractice from line two and malpractice
               and ignorance from number two?

               MR. McCALLUM: Leave that in. The only change in
               number three according to what you would like to see is
               to remove dispensing. Rest of it would remain the same.

               MR. McCALLUM: Now, then for Dr. Janet McNiel, do
               you want the same changes in this?

               DR. BOLTON: I would make a motion that the same
               changes here on her cause of action that we did under Dr.
               Frank McNiel.

               MR. CUNNINGHAM: I second the motion.

               MR. McCALLUM: Motion has been made and seconded
               that the causes or action that we will adopt will be the
               same as those that we have edited for Dr. Frank McNiel.
               All those in favor let it be known by saying Aye.

                      (Whereupon, motion carried unanimously.)


       The charges to which the board referred to are included in a 29-page document which is

appended to this opinion. The written finding of facts of the Board tracks verbatim the statements

of fact in the charges, and concludes with the following summary of facts:

                  Respondent has administered controlled, mind-altering
               substances to these patients, and to many additional patients
               as is reflected within several area pharmacy drug audits, in a
               rote fashion, rather than in a fashion tailored to the specific
               needs of the individual patient. Particularly with respect
               to his administration of benzodiazepines, respondent has
               routinely administered the highest Valium dosage (10 mg)
               to most of his patients without ever attempting to titrate
               such dosages to individual patient needs.


                                               -5-
   Respondent has, in many instances, administered these
controlled substances in excess of the recommended daily
dosage limitations as indicated by the Physicians Desk
Reference. His chronic, repeated administration of Schedule
II-IV narcotic analgesics such as Lortab, Lorcet Plus,
Vicodin, Percodan, Percocet, Tylenol (#3 & #4), Darvon
and Darvocet for periods of time approximating 3 years in
some patients is not recommended within this treatise, nor
is such chronic administration of these substances recognized
as appropriate care as a family practice physician, particularly
when combined with administration of sedating benzoates-
pines and sedative hypnotics (Phenobarbital and Halcyon) on
such a long-term, chronic basis, Respondent’s administration
of such combinations in such a chronic fashion fell below the
standard of care expected of a reasonably competent primary
case or family practice physician practicing in the State of
Tennessee.

   Respondent constantly administered the combination of
benzodiazepines and narcotic analgesics in a chronic fashion
to most of the ten patients referred to herein (and to many
others, too numerous to list), without attempting to justify or
take precautions against the sedating, and potentially
addictive consequences these combinations could have. In
many instances, Respondent did not recognize, and in fact
rewarded, drug-seeking behavior manifested by his patients.
This conduct on Respondent’s part fell below the standard
of care of a reasonably competent primary care or family
practice physician practicing in Tennessee.

   Respondent’s chronic use of narcotic analgesics for
management of non malignant pain in many patients fell
below the standard of care expected of a reasonably
competent family practitioner or primary care physician
practicing in the State of Tennessee, which is that narcotics
are to be avoided except in limited, acute pain cases, and,
only after all other specific therapies have been exhausted and
the patient has been evaluated according to a multi-
disciplinary approach, including referrals to orthopedists,
neurological surgeons, administration of steroidal anti-inflam-
matory drugs, antidepressants, administration of a TENS unit,
and hypnosis. None of the ten patients referred to herein
suffered from malignant pain caused by organic disease, and
the Respondent did not limit his administration of narcotics
to short-term, intermittent, acute cases.

   Respondent did not, in any of the ten cases referred
to herein, or in general with respect to most other patients,
either refer patients to alternative therapies or to specialists
in pain management, or refrain from continuing
administration of strong narcotic            analgesics and
benzodiazepines while the patients were simultaneously
undergoing treatment by such mental health and pain
specialists.

                                -6-
       The written “conclusions of law of the Board” state:

               The Findings of Fact in this Order are sufficient to
               establish violation by the Respondent of the following
               provisions of the Tennessee Medical Practice Act,
               T.C.A. §§ 63-6-101 et seq.) for which disciplinary
               action before and by the Board is authorized.

               1. T.C.A. § 63-6-214(b)(1), which authorizes the
               Board to discipline a licensee for engaging in conduct
               which is unprofessional or unethical;

               2. T.C.A. § 63-6-214(b)(4), which authorizes the
               Board to discipline a licensee for a pattern of
               continued or repeated negligence or incompetence in
               the course of medical practice;

               3. T.C.A. § 63-6-214(b)(12), which authorizes the
               Board to discipline a licensee for prescribing or other-
               wise distributing any controlled substance or any other
               drug not in the course of professional practice, or not
               in good faith to relieve pain and suffering, or not to
               cure an ailment, physical infirmity or disease; and

               4. T.C.A. § 63-6-214(b)(13), which authorizes the
               Board to discipline a licensee for prescribing or other-
               wise distributing to any person a controlled substance
               or other drug if such person is addicted to the habit of
               using controlled substances without making a bona
               fide effort to cure the habit of such patient.


       Decisions of an administrative agency are subject to reversal by the Courts if they are

unsupported by substantial and material evidence, or are arbitrary and capricious. T.C.A. § 4-5-322

(h) (4) and (5), above.



       Substantial and material evidence is such relevant evidence as a reasonable mind might

accept to support a rational conclusion and such as to furnish a reasonably sound basis for the action

under consideration. Southern Railway Company v. State Board of Equalization, Tenn. App.1984,

682 S.W.2d 196, 199.



       Substantial and material evidence is something less than a preponderance of the evidence,

but more than a scintilla or glimmer. Wayne County v. Solid Waste Disposal Control Board. Tenn.


                                                -7-
App. 1988, 756 S.W.2d 274, 280.



               The records of the respondents and their testimony adequately support the specific

facts found by the Board. The difficulty lies in the lack of expert testimony evaluating those facts

in terms of violation of the quoted statute.



       The charges and supporting evidence against Dr. Frank McNiel arose out of his dealings with

ten individuals identified anonymously in the record as A, B, C, D, E, F, G, G and I.



       Dr. Frank McNiel admitted that there were “red flags” in the record of patient C, including

Dr. McNiel’s doubts as to his claim of theft of some of his medication, that C was using the

medication for other than pain and anxiety control -; that Dr. McNiel was convinced that he “had

drug seeking behavior” and that he had a history of drug abuse.



       Dr. Frank McNiel admitted that Patient E “very likely has a psychological or physical

dependency” upon the prescribed medicine, but declined to characterize the condition as addiction.



       Dr. Frank McNiel’s record of Patient F states “family did not want her in a drug rehab

program” and “minimizes drug problem.”



       During his cross-examination, Dr. Frank McNiel agreed with the following quotations from

a published article:

               “Narcotic analgesic drugs on (sic) the mainstay of therapy
               for patients with acute pain or chronic cancer related pain or
               Intensity.”


       He declined to agree with other statements in said exhibit which is not otherwise

authenticated or offered in evidence.

.

                                               -8-
       The charges and supporting evidence against Dr. Janet McNiel arose out of her dealings with

individuals identified anonymously in the record as 1, 2, 3, 4, 5 and 6.



       The records of Dr. Janet McNiel indicate that on March 7, 1988, Patient 6 was “using too

many Anexia-D” but the same entry shows that the prescription for the same drug was renewed; that,

on March 23, 1988, 6 “wants pills early;” that, on March 28, 1988, the same medication was re-

prescribed; that on April 6, 1988, the same prescription was renewed; that, on April 20, 1988, the

chart for 6 indicates “too many Anexia and Darvocet;” that, on April 21, 1988, Dr. McNiel told 6

she was addicted and recommended addiction treatment and wrote on the chart “no more Anexia or

Darvocet,” that on May 4, 1988, Halcyon, a controlled substance was prescribed; that on May 5,

1988, Anexia D was again prescribed; and that prescriptions for this drug continued from June, 1988

to October, 1988; that, in October, 1988, Dr. McNiel began injections of Buprenex and prescribed

100 Percocets every two weeks; that, on January 6, 1992, the record states “patient has been taking

too many pain pills, naughty, naughty,” and that 100 more Percocet pills were prescribed on the

dame date.



       Dr. Janet McNiel testified that, in June, 1992, she charted Patient 2 with a note “caution with

meds,” that a psychiatrist told Dr. McNiel in September, 10, 1992, that 2 “doesn’t need meds” and

2 was “milking Dr. McNiel for meds;” that 2 was charted for “no more meds,” but from September

14, 1992 through January, 1993, controlled substances were prescribed for 2 without an examination.



       Dr. Janet McNiel’s June, 1992 chart for Patient 4 reflects a plan for drug screens because of

“questions” about abuse, but prescriptions for controlled substances were continued to March 23,

1993, without a drug screen.



       Dr. Janet McNiel’s chart for Patient 5 on April 25, 1988, shows “prob. multiple substance

abuse” and “no plan for substance abuse.” On January 1989, the record shows recommendation for


                                                -9-
drug rehabilitation and “we will not treat her any more.” The record reflects that controlled

substances were prescribed continuously throughout 1991 and 1992 without a charted physical

examination.



         The record of Dr. Janet McNiel’s for Patient 6 states “using too many Anexia D cautioned,

wants pills early - explained that she is addicted, thinks she can quit; recommended that she get

help.”

Told her to call Jim Dunlap at New Day if she needs help; patient has been taking too many pain

pills, naughty, naughty.”



         Dr. Janet McNiel testified that “there were flags’ in respect to Patient 2, and her record on

this patient stated “caution with meds?” and “no more controlled meds.”



         The record of Dr. Janet McNiel on Patient J contains: “meds” recommended drug

rehabilitation and “we will not treat her any more,” and that Dr. McNiel did not read this entry 2

years later before prescribing pain relievers, but she wishes that she had “because I feel it would have

changed things.”



         The foregoing records and testimony of the petitioners do not alone establish that their

actions constituted misconduct as described in T.C.A. § 63-6-214.



         In Williams v. State Dept. Of Health, Tenn. App. 1994, 880 S.W.2d 955, 958-9, this Court

affirmed discipline of a physician, but said:

                [1] The petitioner contends that the Board’s findings are
                not supported by substantial or material evidence because
                State did not produce expert testimony to establish a
                standard that the appellant violated. The State counters
                with the argument that all the Board members were
                physicians and therefore were able to judge the acts of
                the petitioner without any expert guidance. See CF
                Industries v. Tennessee Public Service Commission, 599

                                                -10-
              S.W.2d 536 (Tenn. 1980). The petitioner rejoins that to
              allow *958 members of the Board to base a decision on
              their unexpressed knowledge deprives the petitioner of a
              meaningful review of the decision. See In re Williams,
              60 Ohio St.3d 85, 573 N.E.2d 638 (1991); Dotson v.
              Texas State Board of Medical Examiners, 612 S.W.2d
              921 (Tx.1981).

                 We choose to avoid this conflict in the authorities. It
              is not necessary to resolve the conflict in this case,
              because at least one of the grounds on which the
              Board based its decision does not require the Board
              to rely on its own expertise.


       In re Williams, cited above, was a State Medical Board case in which the Ohio Supreme

Court affirmed the judgment of the Trial Court reversing the order of the Board for lack of

substantial and material supporting evidence. The Court said:

                In its arguments to this court, the board contends that
              Arlen v. Ohio State Medical Bd. (1980), 61 Ohio St.2d
              168, 15 O.O.3d 190, 399 N.E.2d 1251, is dispositive.
              In Arlen, the physician was disciplined because he had
              written prescriptions for controlled substances to a
              person who the physician knew was redistributing the
              drugs to others, a practice prohibited by R.C. 3719.06-
              (A). The physician appealed on the ground that the
              board failed to present expert testimony that such
              prescribing practices fell below a reasonable standard
              of care.

                We held that the board is not required in every case to
              present expert testimony on the acceptable standard of
              medical practice before it can find that a physician’s
              conduct falls below this standard. We noted that the
              usual purpose of expert testimony is to assist the trier
              of facts in understanding “issues that require scientific
              or specialized knowledge or experience beyond the
              scope of common occurrences. ***” Id. at 173, 15 O.O.
              3d at 193, 399 N.E.2d at 1254. The board was then
              made up of ten (now twelve) persons, eight of whom
              are licensed physicians. Id.; R.C. 4731.01. Thus, a
              majority of board members are themselves experts in the
              medical field who already possess the specialized
              knowledge needed to determine the acceptable standard
              of general medical practice.

                 [1] While the board need not, in every case, present
              expert testimony to support a charge against an accused
              physician, the charge must be supported by some
              reliable, probative and substantial evidence. It is here
              that the case against Dr. Williams fails, as it is very

                                              -11-
               different from Arlen.

                  [2] Arlen involved a physician who dispensed con-
               trolled substances in a manner which not only fell below
               the acceptable standard of medical practice, but also
               violated the applicable statute governing prescription
               and dispensing of these drugs. In contrast, Dr. Williams
               dispensed controlled substances in what was, at the time,
               a legally permitted manner, albeit one which was
               disfavored by many in the medical community. The only
               evidence in the record on this issue was the testimony
               of Dr. William’s expert witnesses that his use of controlled
               substances in weight control programs did not fall below
               the acceptable standard of medical practice. While the
               board has broad discretion to resolve evidentiary conflicts,
               see Conrad, supra, 63 Ohio St.2d at 111, 17 O.O.3d at 67,
               407 N.E.2d at 1267, and determine the weight to be given
               expert testimony, Arlen, supra, 61 Ohio St.2d at 174, 15
               O.O.3d at 194, 399 N.E.2d at 1255, it cannot convert its
               own disagreement with an expert’s opinion into affirmative
               evidence of a contrary proposition where the issue is one
               on which medical experts are divided and there is no statute
               or ruling governing the situation.



       In Dotson v. Texas State Board, cited above, the Texas Supreme Court reversed the judgment

of the Trial Court affirming a disciplinary order and said:

                  [2, 3] It is urged by the Board that, since all members
               of the Board are professionals, it was not necessary to
               introduce expert testimony that these drugs were not
               therapeutic as prescribed. The difficulty with this
               contention is that the APA limits the court’s review to the
               record as made before the Board. A court obviously
               cannot review knowledge, however expert, that is only in
               the minds of one or more members. Section (q) of Article
               6252-13a (APA) expressly allows an agency to take
               official notice of facts only in the following manner:

                 In connection with any hearing held under the provisions
               of this Act, official notice may be taken of all facts
               judicially cognizable. In addition, notice may be taken of
               generally recognized facts within the area of the agency’s
               specialized knowledge. Parties shall be notified either
               before or during the hearing, or by reference in preliminary
               reports or otherwise, of the material officially noticed,
               including any staff memoranda or data, and they must be
               afforded an opportunity to contest the material so noticed.
               The special skills or knowledge of the agency and its staff
               may be utilized in evaluating the evidence.

               There was no attempt by the Board to comply with this

                                               -12-
               section. Furthermore, a party must be accorded the right to
               cross-examine and rebut adverse evidence. See Article
               6252-13a, Sections 13(g) and 14(p); Richardson v. City of
               Pasadena, 513 S.W.2d 1 (Tex.1974); McCormick on
               evidence § 353 (2nd ed. 1972).



       T.C.A. § 4-5-313 provides in part:

               Official notice may be taken of:

               (A) Any fact that could be judicially noticed in the
               Courts of this state;

               (B) The record of other proceedings before the agency;

               (C) Technical or scientific matters within the agency’s
               specialized knowledge; and

               (D) Codes or standards that have been adopted by an
               agency of the United States, of this state or of another
               state, or by a nationally recognized organization or
               association.

               Parties must be notified before or during the hearing,
               or before the issuance of any initial or final order that
               is based in whole or in part on facts or material noticed
               of the specific facts or material noticed and the source
               thereof, including any staff memoranda and data, and
               be afforded an opportunity to contest and rebut the
               facts or material so noticed. [Acts 1974, ch. 725, § 9;
               1978, ch. 938, §§ 6-8; T.C.A., §§ 4-515, 4-5-109; Act
               1982, ch. 874, § 52.]


       There is no record that petitioners were notified that the members of the Board would

consider as evidence those matters of expert information known to them, or as to which they held

an opinion; and no record appears that such information or opinion was disclosed at the hearing with

opportunity to cross-examine and contradict.



       Under the circumstances, the undisclosed expertise of the Board cannot substitute for lack

of evidence.



       The Board found that respondent’s acts and omissions constituted “a pattern of continued or


                                               -13-
repeated negligence or incompetence;” “prescribing or otherwise distributing a controlled substance

or any other drug not in the course of professional practice, or not in good faith to relieve pain and

suffering, or not to cure an ailment, physical infirmity or disease;” and “prescribing or otherwise

distributing to any person controlled substance or other drug if such a person is addicted to the habit

of using controlled substance without making a bona fide effort to cure the habit of such a patient.”



        In order to affirm the Boards’ “Conclusions of Law,” this Court must find in the record,

expert testimony to support the finding of the occurrence of the violations of the statute stated in the

Conclusions of Law.



       The emphasized words and phrases are terms of art in the science of medicine, and the Courts

are not qualified to define or apply them to the facts of these cases. In cases involving scientific or

technical evidence, the “substantial and material evidence standard” in Tenn. Code Ann. § 4-5-

322(h)(5) requires a searching and careful inquiry that subjects an administrative body’s decision to

close scrutiny. Wayne Co. v. Tennessee Solid Waste Disposal Control Board, 756 S.W.2d 274, 280,

citing Crounse Corp. v. ICC, 781 F.2d 1176, 1187 (6th Cir.), cert. denied, 479 U.S. 890, 107 S.Ct.

290, 93 L.Ed.2d 264 (1986); Cranston v. Clark, 767 F.2d 1319, 1321 (9th Cir. 1985). Here that

scrutiny revealed a gap between the technical proof the Board established, and the statutory

provisions it alleged the Appellants violated.



       The only testimony offered by the State in this regard was that of Dr. Brian W. Christman,

which included the following:

               Q.     Dr. Christman, did you review medical records on
               behalf of Patient A?

                A.      Yes, sir, I did.

                Q.      What were your conclusions, or your respondent’s
                prescribing practices for this patient?

                A.     It was my opinion that in the absence of some kind
                of documental pathology, this represents significantly over-

                                                 -14-
prescribing.

Q.     Dr. Christman, did you have an opportunity to
review records provided on Patient B?

A.     I would say that the prescription of Phenobarbital
without a clear indication would not meet the standard of
care.

Q.     Dr. Christman, did you have an opportunity to
review records provided by my office regarding Patient C?

A.     Yes, sir, I did.

Q.      Did you arrive at any opinions regarding the
respondent’s prescribing practices with respect to that
patient?

A.     Yes, sir, I did.

Q.     Could you indicate to the Board what those were?

A.     Despite what seems to be transparent drug seeking
behavior, he wasn’t referred to mental health professionals.
I felt this represented significant over-prescription of
narcotics without adequate indication.

Q.     Did you feel that this conduct fell below the
applicable statewide standard of care?

A.     Yes, sir, I did.

Q.      Doctor, did you review records provided by my
office with respect to Patient D?

A.     Yes, sir, I did.

Q.     What were your opinions, Doctor, regarding the
respondent’s prescribing practice with respect to Patient
D?


A.     I thought it was fairly clear that the deterioration
in her mental status was associated with the cumulative
dosing of narcotics and sedatives. I thought the anti-
psychotic medication was probably prescribed without
adequate evaluation.

Q.      Did you consider this course of treatment for
Patient D to fall below the applicable statewide standard
of care?

A.     Yes, sir.


                               -15-
Q.     Dr. Christman, did you review records provided
by my office on Patient E?

A.     Yes, sir, I did.

Q.      And what were your opinions regarding the
respondent’s prescribing and treatment practices for
Patient E?

A.      I thought this reflected over-prescription of
narcotics, again, without clear indication in a patient who
significantly manifested addiction potential.

Q.      Did you consider the respondent’s treatment and
prescribing of controlled substances to this patient to fall
below the applicable statewide standard of care?

A.     Yes, sir.

Q.     Dr. Christman, did you review records provided
to you by my office on behalf of Patient F?

A.     Yes, sir, I did.

Q.     Dr. Christman, what were your opinions regarding
respondent’s treatment and prescribing of Patient F?

A.     I thought the persistent dosing of Percocet and
Darvocet without indication would fall below the state-
wide standard of care.

Q.     Dr. Christman, did you evaluate records provided
to you by our office with respect to Patient G?

A.     Yes, sir, I did.

Q.      Dr. Christman, did you arrive at any opinions
regarding the propriety of the respondent’s treatment of
or prescriptions for this patient?

A.      I did. I think the failure to perform an examination
in the presence of neurologic symptoms, particularly with
the incontinence and leg weakness, fell below the statewide
standard of care.

Q.     Dr. Christman, did you have occasion to review
records provided to you by my office regarding Patient H?

A.     Yes, sir, I did.

Q.      What were your opinions, Doctor, regarding the
respondent’s treatment of and prescribing practices for
this patient?


                                -16-
A.     I felt it fell below the statewide standard of care.

Q.      Doctor, did you arrive at any conclusions or
opinions regarding the respondent’s treatment of and
prescribing controlled substances for Patient I?

A.      I did. But in this case, I think it’s close, but I
can’t definitively say it fell below the statewide standard
of care.
Q.       So your testimony is that you do not believe that
the treatment or the prescribing for Patient I fell below
the statewide standard of care.

A.      No, sir. I said that I can’t tell whether it did. I
can’t be certain.

Q.     Dr. Christman, did you have occasion to review
records provided to you by our office regarding Patient
J?

A.     Yes, sir.

Q.      What were your opinions or conclusions, Doctor,
regarding the respondent’s treatment of and prescribing
for Patient J?

A.      The lack of appropriate evaluation and continued
prescriptions of large amounts of narcotics, I felt made
the management of the case fell below the statewide
standard of care.

Q.     Did you have occasion to review records
provided to you by our office on Patient Number 1?

A.     Yes, sir, I did.

Q.      What were your conclusions or opinions
regarding the respondent’s treatment of or prescribing
practices for Patient 1?

A.     I felt that the prescribing practices fell below the
statewide standard of care.

Q.     Dr. Christman, did you evaluate medical records
provided to you by my office regarding Patient Number
2?

A.     Yes, sir, I did.

Q.      What were your conclusions or opinions, Dr.
Christman, regarding the respondent’s treatment of or
prescribing practices for this patient?

A.     I felt that the prescribing practices fell below the

                                -17-
statewide standard of care. There were many indications
of drug seeking behavior.

Q.    Dr. Christman, did you have occasion to review
medical records provided to you by my office on Patient
Number 3?

A.     Yes, sir, I did.

Q.      What were your conclusions or opinions, Doctor,
regarding the propriety of the respondent’s treatment of
or prescribing for this patient?

       I felt that because of the persistent headaches,
additional evaluation by a specialist, perhaps a
neurologist or pain specialist, should have been sought
instead of continued prescription of high doses of
narcotic analgesics.

Q.      Doctor, did you have occasion to review medical
records provided to you by our office on behalf of
Patient Number 4?

A.     Yes, sir, I did.

Q.      Doctor, what were your conclusions or opinions
regarding the treatment of or the prescribing practices of
the respondent relating to this patient?

A.     I felt that this case fell below the statewide
standard of care.

Q.     Dr. Christman, have you had occasion to review
records provided to you by my office related to Patient
Number 5?

A.     Yes, sir, I did.

Q.      What were your opinions, Doctor, regarding the
respondent’s treatment of and prescribing for this
patient?

A.      This was a 37 year old woman with a history
of a motor vehicle accident with chronic low back pain.
The physician, in the chart, reported a diagnosis of
multiple substance abuse on April 1988, and
recommended drug rehabilitation on January of 1989.
Nevertheless, beginning in August of 1991, she began
prescribing Propoxyphene and Valium, and did so for
the next year.

       I thought that the practice of prescribing
continual prescriptions of controlled substances to a
patient with a known problem of substance abuse fell

                               -18-
               below the acceptable standard of care in the State of
               Tennessee.

               Q.      Dr. Christman, did you have occasion to
               review the medical records provided to you by my
               office on Patient 6?

               A.      Yes, sir, I did.

               Q.      What were your conclusions or opinions
               regarding the respondent’s treatment of and prescribing
               practice for this patient?

               A.     I felt that the prescription practice fell below the
               statewide standard of care.

               Q.      Did you find that this practice, in your opinion,
               violated the applicable statewide standard of care?

               A.      Yes, sir.



       It is seen that the testimony of Dr. Christman was limited to the “statewide standard of care”,

and “significantly over prescribing.”



       The words “statewide standard of care” and “over prescribing” are not found in the quoted

statute, the charges, or the “conclusions of law,” and are not the equivalent of the words of the

statute. No substantial and material expert evidence is found in the testimony of Dr. Christman

or elsewhere that the acts and omissions of the petitioners constituted the degree of misconduct for

which the statute authorizes discipline.



       Inasmuch as the members of the Board were physicians, it is possible that they utilized their

own expertise in concluding that the acts and omissions of respondents qualified as misconduct

specified in the statute. However, nothing is cited or found in this record to indicate that such expert

evaluation by the Board took place. Absent evidence of such express exercise of expertise by the

Board, this Court is unable to presume that it took place.


       The Board insists that the testimony of petitioners supplies the missing expert testimony. The


                                                -19-
above quoted testimony of petitioners identifies shortcomings in their treatment of patients, but does

not admit that any of the shortcomings amounted to that conduct described in the statute and in the

“conclusions of law of the Board.”



       The conclusions of the Board and its judgment are without necessary support of necessary

material and substantial evidence, and cannot be affirmed.



       The decision of the Board and it’s affirmance by the Trial Court are reversed and vacated.

All costs in this Court and in the Trial Court will be paid by the Respondent-Appellee. The cause

is remanded to the Trial Court for any necessary concluding procedure.



                         REVERSED, VACATED AND REMANDED.



                                       ___________________________________
                                       HENRY F. TODD
                                       PRESIDING JUDGE, MIDDLE SECTION



CONCUR:


_____________________________
SAMUEL L. LEWIS, JUDGE


CONCURS IN SEPARATE OPINION
WILLIAM C. KOCH, JR., JUDGE




                                               -20-
