                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                              September 27, 2011 Session

                     KEVIN COX, D.V.M.
                            v.
     TENNESSEE BOARD OF VETERINARY MEDICAL EXAMINERS

            Direct Appeal from the Chancery Court for Davidson County
                  No. 07-1154-I    Claudia Bonnyman, Chancellor


               No. M2010-01582-COA-R3-CV - Filed October 21, 2011


This is an appeal from an administrative decision against Appellant, a licensed veterinarian.
Appellee Board of Veterinary Medical Examiners sanctioned Appellant for improperly
prescribing medications to farms. Appellant appeals. Discerning no error, we affirm.

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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and H OLLY M. K IRBY, J., joined.

Richard L. Colbert and Courtney L. Wilbert, Franklin, Tennessee, for the appellant, Kevin
H. Cox. D.V.M.

Robert E. Cooper, Jr., Attorney General and Reporter; and Sara E. Sedgwick, Senior
Counsel, for appellee, Tennessee Board of Veterinary Medical Examiners.

                                        OPINION

                                      I. Background

       Petitioner/Appellant Kevin Cox, D.V.M. (Dr. Cox) is a large animal veterinarian
licensed to practice in Tennessee. Respondent/Appellee, the Board of Veterinary Medical
Examiners (“the Board”) is a regulatory board operating within the Division of Health
Related Boards of the Tennessee Department of Health. The Board is responsible for the
regulation and supervision of the practice of veterinary medicine throughout Tennessee.

       Dr. Cox lives in western Tennessee and works as the staff veterinarian for Tennessee
Farmer’s Cooperative (“the Cooperative”).1 In February 2005, in response to the needs of
member-farmers, the Cooperative decided to expand its veterinary services and, toward that
end, created a separate, wholly-owned subsidiary, Co-Op Vet Health Inc. (“Co-Op Vet
Health”). Dr. Cox was the president and the sole veterinarian of the new company and the
charges at issue in this appeal stem from his work with Co-Op Vet Health, rather than the
Cooperative.

        In his work with Co-Op Vet Health, Dr. Cox has some 187 patients/clients ranging
from far western Tennessee to extreme eastern Tennessee. According to Dr. Cox, he provides
his Co-Op Vet Health clients with advice and information regarding over-the-counter and
prescription medications, as well as animal health. However, Dr. Cox does not provide
emergency services to his clients, and recommends that they keep an emergency veterinarian
on call. Through his services with Co-Op Vet Health, Dr. Cox also gives his clients a printed
list of common medications that he might prescribe, including their prices.

       After operating Co-Op Vet Health for a few months, on March 25, 2005, Dr. Cox
received complaints from unidentified persons, indicating that he was operating his practice
in an unethical manner. Dr. Cox subsequently wrote to the Board to determine whether he
was operating within the confines of the law. An agent for the Board wrote back to Dr. Cox,
pointing out several relevant rules and regulations concerning his practice, and informing him
that the Board could only determine the propriety of his practice should he petition for a
Declaratory Order. Dr. Cox never petitioned for a Declaratory Order and continued to operate
Co-Op Vet Health without any significant changes.

       On November 3, 2005, only nine months after forming Co-Op Vet Health, the Board
issued a Notice of Charges and Memorandum of Assessment of Civil Penalties and Costs
against Dr. Cox alleging six violations of the rules and laws governing veterinarians. The
Notice alleged that Dr. Cox visited a particular farm in May 2005 and made arrangements
to provide prescription medications to the farmer without examining any of the animals on
the farm, and that this incident evidences a practice to prescribe medications without forming
a proper veterinarian-client-patient relationship.

       It eventually came to light that the charges against Dr. Cox were filed by another
veterinarian, Dr. Oscar Wilson (Dr. Wilson). These charges concerned Dr. Cox’s conduct
at Beatyview Farm, which is owned by Julius Beaty. According to Dr. Wilson, he learned,
through Mr. Beaty’s sons, that Dr. Cox had gone to the Beaty farm and had prescribed
medications for the animals without examining any animals or the herd and without taking


       1
        The Cooperative, which is owned collectively by some 70,000 farmers throughout the state, is
headquartered in La Vergne, Tennessee and provides services to members across the state.

                                                -2-
other steps to create a proper veterinarian-patient-client relationship.

       Prior to the hearing on the charges, Dr. Wilson sought to withdraw his complaint
against Dr. Cox; nevertheless, the Board continued with the proceedings against Dr. Cox. On
June 23, 2006, the State sought to compel Dr. Cox to provide the State with twenty-one of
Dr. Cox’s client-patient records. After first agreeing to provide the State access to eleven
client-patient records, Dr. Cox later objected based on the fact that Dr. Wilson had
withdrawn his complaint regarding Beatyview Farm and that Dr. Cox was not charged with
record-keeping violations in the Notice of Charges. The State renewed its motion to compel
discovery on August 1, 2006. On August 8, 2006, the Administrative Law Judge (“ALJ”)
ordered Dr. Cox to produce twenty-one client-patient records stating that;

       The [State] has shown that the client files at issue here are “relevant to the
       subject matter involved in the pending action.” . . . Since [Dr. Cox] has been
       charged with a practice of inappropriate prescribing, not simply with one
       incident of so doing, his prescribing habits (as indicated in client files) are
       clearly relevant. Although the request of the initial complainant, that his action
       be withdrawn, may have implications for the State’s ability to prove its case
       at the hearing, it does not serve to modify the charges contained in the Notice,
       or to restrict the State’s ability to discover materials relevant to the pending
       action.

      The ALJ held a contested hearing on January 30–31, 2007. During the proceedings,
the ALJ directed the Board as follows:

       Just as—and I was going to talk about this later but—just as any record
       keeping requirements—we’ve heard testimony here today that there may have
       been record keeping violations. Again, that is outside the scope of this hearing.

       And so any violations in that regard or on other regards, other violations that
       may be listed in the rules, would not be appropriate to consider in your
       decision and whether or not discipline was proper this time. Is that clear?

       Dr. Wilson first testified regarding his original complaint. Dr. Wilson stated that he
was led to believe that Dr. Cox went to the Beaty farm and prescribed certain medications
without examining any of the animals. Dr. Wilson also testified that, in a phone call that Dr.
Wilson made to Dr. Cox, Dr. Cox indicated that the only thing he would need to prescribe




                                              -3-
medications to Dr. Wilson was an address.2 However, Dr. Wilson explained that, after
learning that Mr. Beaty signed an affidavit stating that Dr. Cox had examined the herd prior
to prescribing the medications, Dr. Wilson sought to withdraw his complaint.

       Mr. Beaty did not testify; instead, his testimony was introduced through an affidavit.3
In the affidavit, he stated that Dr. Cox did examine his herd prior to prescribing any
medications and that he was never led to believe that medications were readily available.
This examination, however, was of the herd, and, according to Dr. Cox, did not include Dr.
Cox laying hands on any of the Beatys’ animals. Mr. Charles Whitson, an investigator
employed by the Board, also testified that Dr. Cox informed him that he could prescribe
medications for an entire year based on one annual visit to the farm, though other witnesses
and Dr. Cox’s records tend to show that he often made follow-up visits approximately every
six months.

       Dr. Cox testified that he always forms the proper veterinarian-client-patient
relationship prior to prescribing medications. Producers who used Dr. Cox’s veterinary
services testified that Dr. Cox did not prescribe medications without speaking at length with
the persons who would administer the drugs. They also testified that compared to other large
animal veterinarians, Dr. Cox was even more reticent about prescribing medications. Betty
Woods, a long-time client of Dr. Cox’s, testified that Dr. Cox came to her farm prior to
prescribing medications, looked over her herd, and physically examined a number of
animals. Amy Maness, one of Dr. Cox’s clients, testified that Dr. Cox was readily available


        2
          There is some disagreement as to whether Dr. Wilson identified himself at the beginning of the
phone call. What is clear is that Dr. Wilson described certain fictitious symptoms on a dairy cow to Dr. Cox,
asking for prescription medications to be sent to him. Once Dr. Wilson identified himself by providing the
address of his veterinary clinic, Dr. Cox refused to prescribe or send the medications to Dr. Wilson. A heated
argument over the standard of care in veterinary practice ensued and Dr. Cox never sent the requested
medications to Dr. Wilson’s clinic.
        3
          Affidavits are admissible evidence in administrative proceedings, so long as the opposing party
does not timely object. Tennessee Code Annotated Section §4-5-313 provides:

        At any time not less than ten (10) days prior to a hearing or a continued hearing, any party
        shall deliver to the opposing party a copy of any affidavit such party proposes to introduce
        in evidence, together with a notice in the form provided in subdivision (4). Unless the
        opposing party, within seven (7) days after delivery, delivers to the proponent a request to
        cross-examine an affiant, the opposing party's right to cross-examination of such affiant is
        waived and the affidavit, if introduced in evidence, shall be given the same effect as if the
        affiant had testified orally.

The State did not object to the admission of Mr. Beaty’s affidavit.

                                                     -4-
for follow-up care, would come out to her farm if needed, and physically examined her sick
animals on three occasions.4 However, she did admit that Dr. Cox prescribed some
medications for her sick animals without ever examining those animals. Another client,
Victor Yoder, testified that, throughout his professional relationship with Dr. Cox, Dr. Cox
had never once physically examined any of his animals as none were ever in need of
medication treatment; however, Mr. Yoder did call another veterinarian five times a year to
do routine testing on his herd.5 Nonetheless, Dr. Cox did prescribe medications for certain
ongoing herd maintenance issues without having examined any of Mr. Yoder’s animals
himself.

       The State called several practicing veterinarians who testified that, in their expert
opinions, Dr. Cox did not establish a proper veterinarian-client-patient relationship prior to
prescribing medications to his farm clients. These witnesses’ opinions were formed after they
examined Dr. Cox’s patient records. Specifically, the experts were concerned by the fact that
Dr. Cox: (1) handed out the price list to clients, which implied that medications could be
obtained with just a phone call; (2) often had no notation in his records of ever having
examined animals or herds prior to prescribing medications; (3) sometimes prescribed
medications prior to visiting farms; (4) was unavailable for the required follow-up and
emergency care needed when prescribing pharmaceuticals due to the vast territory of his
practice; (5) had notations in his records indicating that prescriptions could be refilled as
needed; and (6) failed to follow the recommendations of the American Veterinary Medical
Association (“AVMA”), a voluntary membership association.6 According to the State’s
experts, Dr. Cox’s practice of prescribing medications without ever having physically
examined any animals fell below the standard of care in Tennessee. The experts never spoke
with Dr. Cox regarding his practice; instead their opinions focused on Dr. Cox’s records. The
experts did admit that, if additional information existed establishing a valid veterinarian-
client-patient relationship, their opinions might be different.

        Dr. Cox presented his own expert, who agreed that the notations in Dr. Cox’s records


        4
          Although Ms. Maness said that there were “at least” three visits, she did not testify specifically as
to any other visits. The three times that Dr. Cox came to Amy Maness’s farm are reflected in his records.
        5
         Dr. Cox’s records indicated that he had been to the Yoder farm on three occasions; Mr. Yoder was
unable to say that there were any more visits than those reflected in the records, though he did testify that
there were numerous phone calls.
        6
          The recommendations produced by the AMVA require only voluntary compliance; as such, Dr. Cox
is not charged with any violations of the AMVA guidelines; however, even Dr. Cox admitted that the all
veterinarians should try to abide by the ethical guidelines contained therein and the Board considered the
guidelines in determining whether Dr. Cox had engaged in unethical conduct.

                                                     -5-
were not sufficient to show a proper veterinarian-patient-client relationship.7 Instead, the
expert relied on Dr. Cox’s own explanation of his care and treatment in each of the cases.
Only after hearing Dr. Cox’s explanation did the expert conclude that Dr. Cox had formed
a proper veterinarian-patient-client relationship.

        At the conclusion of proof on January 31, 2007, the Board found that Dr. Cox violated
all six of the rules and regulations he had been charged with violating. On March 29, 2007,
the Board entered a final order memorializing the earlier findings. The order included the
required findings of fact, conclusions of law and policy reasons behind the decision, and
generally incorporated the factual allegations as set out in the Notice of Charges.8 Based on
the violations, the Board placed Dr. Cox on probation for three years, with a requirement that
so long as Dr. Cox continues to provide veterinary services through Co-Op Vet Health during
the probationary period, he appear before the Board annually with a number of his veterinary
records for the Board to review.9 Finding that these violations were knowing and willful, the
Board also imposed Type A sanctions, fining Dr. Cox $1,000.00 per violation, totaling
$6,000.00.10 Further, the Board ordered Dr. Cox to pay the costs of the contested case before


        7
          The expert testified that poor record keeping is a hallmark of large animal veterinary practice and
that the expert keeps similarly incomplete records himself, at times.
        8
           Administrative boards are required to enter findings of fact, conclusions of law, and the policy
reasons for the decision. See Tenn. Code Ann. §4-5-314 (“A final order . . . shall include conclusions of law,
the policy reasons therefor, and findings of fact for all aspects of the order, including the remedy prescribed
. . . .”).
        9
          The Board included the requirement that Dr. Cox bring records from only Co-Op Vet Health
because in his statement before the Board imposed sanctions, Dr. Cox stated that he would not be operating
Co-Op Vet Health any longer. Accordingly, the Board did not wish to impose restrictions on Dr. Cox that
would prevent him from going into private practice.
        10
          The Board was entitled to impose a variety of sanctions on Dr. Cox for his violations, including
revocation of license, suspension, probation, private or public reprimand, and civil penalties. See Tenn.
Comp. R. & Regs. 1730-01-.15(1). The amount of civil penalties imposed depends upon culpability. The
regulation provides, in pertinent part:

        Schedule of Civil Penalties

        1. A Type A civil penalty may be imposed whenever the Board finds the person who is
        required to be licensed or certified by the Board is guilty of a willful and knowing violation
        of the Practice Act, or regulations pursuant thereto, to such an extent that there is, or is
        likely to be an imminent substantial threat to the health, safety and welfare of an individual
        client or the public. For purposes of this section, a type A penalty shall include, but not be
        limited to, a person who willfully and knowingly is or was practicing as a veterinarian
                                                                                                 (continued...)

                                                     -6-
the Board, including investigatory costs.

       On May 22, 2007 Dr. Cox filed a petition for judicial review in Chancery Court.11 On
June 14, 2010, after several motions related to the costs of the administrative proceedings,
which are not the subject of the present appeal, the Chancery Court entered its final order
affirming the Board’s decision in its entirety.

        Dr. Cox properly appealed to this Court.12

                                           II. Issues Presented

Dr. Cox raises the following issues for review:

1.      Was the Board’s finding that Appellant failed to maintain a proper veterinarian-client-
        patient relationship supported by evidence that was substantial and material in light
        of the entire record?
2.      Was the Board’s decision arbitrary or capricious or characterized by an abuse of
        discretion or clearly unwarranted exercise of discretion?

                                        III. Standard of Review



        10
         (...continued)
        without a license from the Board.

                                                     ***

        (c) Amount of Civil Penalties

        1. Type A civil penalties shall be assessed in the amount of not less than $500 nor more than
        $1,000.

Tenn. Comp. R. & Regs. 1730-01-.15(5)(b).
        11
          Decisions by administrative boards are appealed first to Chancery Court, then to the Tennessee
Court of Appeals. See Tenn. Code Ann. §4-5-322 (“Proceedings for review are instituted by filing a petition
for review in the chancery court of Davidson County, unless another court is specified by statute.”).
        12
            Both Appellant Kevin Cox and Appellee Board of Veterinary Medical Examiners filed briefs in
this case. On August 23, 2011, the Tennessee Veterinary Medical Association sought leave from this Court
to file a brief amicus curiae. See Tenn. R. App. P. 31(a) (stating that an amicus brief “may be filed only by
leave of court granted on motion or at the request of the appellate court”). After due consideration, this Court
denied that request per curium by order of September 16, 2011.

                                                      -7-
       This is a case seeking to overturn the final decision in a contested case proceeding
under the Uniform Administrative Procedures Act; accordingly, the standard of review is
determined by statute. Specifically, the statute provides, in pertinent part:

       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:


                                            ***

       (4) Arbitrary or capricious or characterized by abuse of discretion or clearly
       unwarranted exercise of discretion; or
       (5)(A) Unsupported by evidence that is both substantial and material in the
       light of the entire record.
       (B) 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.
       (i) No agency decision pursuant to a hearing in a contested case shall be
       reversed, remanded or modified by the reviewing court unless for errors that
       affect the merits of such decision.

Tenn. Code Ann. §4-5-322.

       This Court discussed the standards of review for Tenn. Code Ann. §4-5-322(h)(4) and
(5) with specificity in Jackson Mobilphone Co., Inc. v. Tennessee Pub. Serv. Comm'n, 876
S.W.2d 106, 110–11 (Tenn. Ct. App. 1993), as follows:

       The standards of review in Tenn. Code Ann. § 4-5-322(h)(4) and Tenn. Code
       Ann. § 4-5-322(h)(5) are narrower than the standard of review normally
       applicable to other civil cases. They are also related but are not synonymous.
       Agency decisions not supported by substantial and material evidence are
       arbitrary and capricious. However, agency decisions with adequate evidentiary
       support may still be arbitrary and capricious if caused by a clear error in
       judgment.

       A reviewing court should not apply Tenn. Code Ann. § 4-5-322(h)(4)'s
       “arbitrary and capricious” standard of review mechanically. In its broadest
       sense, the standard requires the court to determine whether the administrative

                                             -8-
       agency has made a clear error in judgment. An arbitrary decision is one that is
       not based on any course of reasoning or exercise of judgment, or one that
       disregards the facts or circumstances of the case without some basis that would
       lead a reasonable person to reach the same conclusion.

       Likewise, a reviewing court should not apply Tenn. Code Ann. § 4-5-
       322(h)(5)'s “substantial and material evidence” test mechanically. Instead, the
       court should review the record carefully to determine whether the
       administrative agency's decision is supported by “such relevant evidence as a
       rational mind might accept to support a rational conclusion.” The court need
       not reweigh the evidence, and the agency's decision need not be supported by
       a preponderance of the evidence. The evidence will be sufficient if it furnishes
       a reasonably sound factual basis for the decision being reviewed.

Jackson Mobilphone, 876 S.W.2d at 110–11 (citations omitted).

                                        IV. Analysis

      1. The Board’s Decision was not based on substantial and material evidence.

       Dr. Cox’s first argument is that the Board’s decision was not based on evidence that
was substantial and material in light of the entire record. An agency’s decision is supported
by substantial and material evidence even if the evidence could support another conclusion.
See Hughes v. Bd. of Comm’rs, 319 S.W.2d 481, 484 (Tenn 1958); Estate of Street v. State
Bd. of Equalization, 812 S.W.2d 583, 585 (Tenn. Ct. App. 1990). This standard requires less
than a preponderance of evidence but more than a “‘scintilla or glimmer’ of relevant
evidence.” MobileComm of Tennessee, Inc. v. Tennessee Public Service Comm'n, 876
S.W.2d 101, 104 (Tenn. Ct. App. 1993) (quoting Estate of Street v. State Bd. of
Equalization, 812 S.W.2d 583, 585–86 (Tenn. Ct. App.1990)).

       As a preliminary matter, we note that the board members were not entitled to
determine whether Dr. Cox violated the laws and rules governing veterinary practice based
solely on their own experience and expertise, despite the fact that many Board members are
veterinarians. “Findings of fact shall be based exclusively upon the evidence of record in the
adjudicative proceeding and on matters officially noticed in that proceeding. The agency
member's experience, technical competence and specialized knowledge may be utilized in
the evaluation of evidence.” Tenn. Code Ann. §4-5-314(d). Expert testimony is a valid and
important form of evidence in administrative proceedings charging a violation of a




                                             -9-
professional standard of care, and as such the Board is entitled to rely on such evidence.13 See
Big Fork Min. Co. v. Tennessee Water Quality Control Bd., 1981, 620 S.W.2d 515
(“Opinions of qualified experts constitutes valid evidence and may support decision of
administrative tribunal.”).

       In support of his argument that the decision was not supported by substantial and
material evidence, Dr. Cox contends that the Board erroneously based its decision solely on
his veterinary records. Dr. Cox bases his argument on the fact that the ALJ directed the
Board that any record-keeping violations should not be considered in determining whether
Dr. Cox was guilty of violating the rules and regulations set out in the Notice of Charges.
This argument is without merit. The ALJ advised the Board that they could not consider
record-keeping violations in determining whether to sanction Dr. Cox, but did not go so far
as to state that the Board could not consider the records. The guiding standard for the
admission of evidence in administrative proceedings is included in Tennessee Code
Annotated Section 4-5-313. The statute states:

        In contested cases:

        (1) The agency shall admit and give probative effect to evidence admissible in
        a court, and when necessary to ascertain facts not reasonably susceptible to
        proof under the rules of court, evidence not admissible thereunder may be
        admitted if it is of a type commonly relied upon by reasonably prudent men in
        the conduct of their affairs. The agency shall give effect to the rules of
        privilege recognized by law and to agency statutes protecting the
        confidentiality of certain records, and shall exclude evidence which in its
        judgment is irrelevant, immaterial or unduly repetitious; . . .

Tenn. Code Ann. §4-5-313. Dr. Cox makes no argument that the disputed evidence would
not be admissible in a court, only that the ALJ directed the Board to disregard the record-


        13
          While expert testimony is admissible, the Veterinary Practice Act of Tennessee does not expressly
require expert testimony to establish the standard of care. See Tenn. Code Ann. 63-12-124. Even in
proceedings before the Board of Medical Examiners, which polices physicians, expert testimony is not
required. See Tenn. Code Ann. §63-6-214(g) (“Expert testimony is not necessary to establish the standard
of care.”). In the recent case of Rich v. Tennessee Board of Medical Examiners, No.
M2009–00813–SC–R11–CD, 2011 WL 4717363 (Tenn. Oct. 10, 2011), the Tennessee Supreme Count
concluded that the Board was required to articulate the standard of care for physicians during deliberations
when the standard of care was at issue with regard to a violation of Tennessee Code Annotated Section 63-6-
214(b). Id. at *5. The Tennessee Veterinary Practice Act does not contain a similar requirement. See Tenn.
Code Ann. 63-12-124. Accordingly, the Board in this case was not required to expressly articulate the
particular standard of care before deciding that Dr. Cox violated the statute.

                                                   -10-
keeping violations. The ALJ, however, allowed the evidence to be admitted and did not direct
the Board to completely disregard the records, only any record-keeping violations that might
be evident. The evidence is relevant and material, and as such was properly considered by
the Board.

       Turning to each of the six violations, we conclude that the evidence was material and
substantial and affirm the Board’s decision.14

                                                A. Count I

          Dr. Cox’s first violation concerns prescribing medications. The relevant regulation
states:

          Prerequisites to Prescribing, Selling, Distributing or Dispensing Animal Drugs
          Required by Federal Law to be Prescribed or Ordered by a Licensed
          Veterinarian to Laypersons - In Person, Electronically, and Over the Internet




          14
           We note that the six laws and rules that Dr. Cox is charged with violating all involve the same
conduct on the part of Dr. Cox and substantially overlap in their requirements. The Board is at liberty to
sanction veterinarians for any and all violations of the law governing veterinarians. The relevant regulation
states, in pertinent part:

          Upon a finding by the Board that a veterinarian and/or premises owner has violated any
          provision of the Tennessee Veterinary Medical Practice Act (T.C.A. §§63-12-101, et seq.)
          or the rules promulgated thereto, the Board may impose any of the following actions
          separately or in any combination deemed appropriate to the offense.

Tenn. Comp. R. & Regs. 1730-01-.15(2).

        When an individual is at risk of being punished more than once for the same conduct, the Double
Jeopardy Clause of the United States Constitution is at issue. See U.S. Const. amend. V (“[N]or shall any
person be subject for the same offense to be twice put in jeopardy of life or limb . . .”). Double Jeopardy may
apply in administrative proceedings when the purpose of the sanction is punitive rather than remedial. See
Cutshall v. Sundquist, 193 F.3d 466, 473 (6th Cir. 1999) (citing Hudson v. United States, 522 U.S. 93, 118
S.Ct. 488, 493 (1997)) (holding that Double Jeopardy may only apply in administrative proceedings when
“the statutory scheme was so punitive either in purpose or effect . . . as to transfor[m] what was clearly
intended as a civil remedy into a criminal penalty”). Dr. Cox, however, did not argue in his brief that he
could not be charged with violating all six laws and regulations in violation of the Double Jeopardy Clause.
Accordingly, this Court is not at liberty to determine if the Board was in error in finding six separate
violations of the intersecting laws and regulations with regard to the Double Jeopardy Clause, only whether
there was sufficient evidence to support the violations and whether the decision was neither arbitrary nor
capricious.

                                                     -11-
                                            ***

       (b) Except as provided in subparagraphs (c), it shall be a prima facie violation
       of T.C.A. § 63-12-124 (a) (12), (13) and (28) for a veterinarian to prescribe,
       sell, distribute or dispense to a layperson any animal drug required by federal
       law to be prescribed or ordered by a licensed veterinarian whether in person
       or by electronic means or over the Internet or over telephone lines, unless the
       veterinarian, pursuant to appropriate protocols or veterinary orders, has first
       done and appropriately documented, for the animal, herd, or flock on whose
       behalf a prescription is to be issued or prescription drugs dispensed, all of the
       following:

       1. Performed an appropriate history and physical examination; and
       2. Made a diagnosis based upon the history, physical examination, and
       pertinent diagnostic and laboratory tests.
       3. Formulated a therapeutic plan, and discussed it with the animal's
       owner/agent or guardian, along with the basis for it and the risks and benefits
       of various treatments options, a part of which might be a prescription drug; and
       4. Insured availability of the veterinarian or the veterinarian's staff for
       appropriate follow-up care.

Tenn. Comp. R. & Regs. 1730-01-.02(3).

       The Board relied on the fact that, in a majority of Dr. Cox’s records there was no
indication that Dr. Cox had ever physically examined any animals prior to prescribing
medications. Indeed, many of Dr. Cox’s own witnesses confirmed that Dr. Cox would
prescribe medications for an animal without first examining it, or, in some cases, any animals
on the farm at all. Based on this evidence, we conclude that there was material and
substantial evidence to support the Board’s finding with regard to this violation.

                                   B. Counts II, III, & IV

       The Board found that Dr. Cox was also in violation of the Tennessee Veterinary
Practice Act of 1967. The act states, in pertinent part:

       The board, pursuant to the procedure prescribed in this section, has the power
       to deny, suspend or revoke any license or to otherwise discipline an applicant
       or licensee who is found guilty by the board of one (1) or more of the
       following:



                                             -12-
                                             ***

       (12) Unprofessional or unethical conduct or engaging in practices in
       connection with the practice of veterinary medicine that are in violation of the
       standards of professional conduct as defined in this section or prescribed by
       the rules of the board;
       (13) Conduct reflecting unfavorably upon the profession of veterinary
       medicine;

                                             ***

       (28) Dispensing, prescribing or otherwise distributing any controlled substance
       or any other drug not in the course of the accepted practice of veterinary
       medicine.

Tenn. Code Ann. § 63-12-124(a) (2011).

         The Board found that Dr. Cox’s practice of prescribing medications to farms without
physically examining any animals on the farm constituted three violations of the Act, under
sections (12), (13), and (28); according to the Board, the practice was unethical, reflected
unfavorably on the profession of veterinary medicine, and was not in the course of accepted
veterinary practice. Given that Tennessee Rule and Regulation 1730-01-.02(3)(b) provides
that a violation of the regulation requiring physical examination, as discussed above, will also
“ be a prima facie violation of T.C.A. § 63-12-124 (a) (12), (13) and (28),” we conclude that
there was reasonably sound factual evidence to support the three violations of this statute.

                                         C. Count V

        The Board also found that Dr. Cox violated Tennessee Rule and Regulation
1730-01-.13, which provides that “Unprofessional conduct shall include but not be limited
to the following: . . . (13) [a]ny violation of T.C.A. §63-12-124.” Because we conclude that
the Board was justified in finding the three violations of Tennessee Code Annotated Section
63-12-124, we affirm the Board’s decision with regard to this violation as well.

                                         D. Count VI

       Finally, the Board found that Dr. Cox violated the regulation that governed
distribution of prescription medications. The regulation provides, in pertinent part:

       Distribution of Veterinary Prescription Drugs.

                                              -13-
       (a) Distribution of veterinary prescription drugs to laymen may occur only on
       the prescription or other order of a licensed veterinarian. The prescriptions
       must be issued in the course of his or her professional practice, with a
       veterinarian-client-patient relationship existing.
       (b) A proper veterinarian-client-patient relationship is defined as existing
       when:

       1. The veterinarian has assumed responsibility for making medical judgments
       regarding the health of the animal(s) and the need for medical treatment, and
       the client (owner or other caretaker) has agreed to follow the instructions of
       the veterinarian; and when
       2. There is sufficient knowledge of the animal(s) by the veterinarian to initiate
       at least a general or preliminary diagnosis of the medical condition of the
       animal(s). This means that the veterinarian has recently seen and is personally
       acquainted with the keeping and care of the animal(s) by virtue of an
       examination of the animal(s), and/or by medically appropriate and timely visits
       to the premises where the animal(s) is (are) kept; and when
       3. The veterinarian is routinely and physically available for follow-up in case
       of adverse reactions or failure of the treatment or regimen or therapy, or has
       arranged for substitute follow-up care.

Tenn. Comp. R. & Regs. 1730-01-.21(2).

         The Board concluded that Dr. Cox did not form the appropriate veterinarian-client-
patient relationship because his failure to examine any animals or to make appropriate and
timely visits to his clients meant that he did not have “sufficient knowledge of the animal(s)
. . . to initiate at least a general or preliminary diagnosis of the medical condition of the
animal(s)” and that he was unavailable for the appropriate follow-up care due to the vast
territory of his practice.

       Dr. Cox argues, however, that the Board’s requirement that he physically examine the
animals and provide follow-up care more than bi-annually is without support in the
regulation, and as such, to quote Dr. Cox’s brief, “hold[s] Dr. Cox to a more ‘ideal’ standard
than what is in the Rule.” Dr. Cox relies on the recent Tennessee Court of Appeals case of
Cady v. Tenn. Bd. Of Veterinary Med. Exam’rs, No. M2008-02551-COA-R3-CV, 2009 WL
2707398 (Tenn. Ct. App. Aug. 27, 2009), to support this assertion. In Cady, we held that the
Board cannot adopt rules that “constitute[] an impermissible expansion of the Legislature's




                                             -14-
definition of the practice of veterinary medicine and the Board's authority”15 Here, the Board
has not impermissibly expanded its authority in hearing expert testimony regarding the
veterinarian-client-patient relationship. Tennessee Rule and Regulation 1730-01-.21(2)
requires that the veterinarian have a “sufficient knowledge of the animal[s],” but does not
explain what actions are required for a veterinarian to gain that knowledge. In cases where
the standard of care is undefined or ambiguous, expert testimony may be needed, and the
Board is entitled to rely on that testimony. Administrative Law and Practice explains:

               A fundamental concept of administrative law is that the agency
        encompass special expertise in the relevant subject matter. One of the reasons
        for assigning adjudication to an agency is to take advantage of expert
        factfinding. Thus the evaluation of expert evidence is an especially important
        function.

              The agency factfinder often must choose between conflicting experts.
        The Seventh Circuit summarized its views: “In the case of dueling doctors, it
        remains the province of the hearing officer to decide whom to believe . . . .”

2 Admin. L. & Prac. § 5:64 (3d ed.) (quoting Dray v. Railroad Retirement Bd., 10 F.3d
1306, 1311 (7th Cir. 1993)); see 2 Admin. L. & Prac. § 5:53 (3d ed.) (“A large portion of the
testimony in administrative hearings comes from experts or quasi-experts (persons who are
giving opinions worth more than a layman's).”); see also Big Fork Min. Co. v. Tennessee
Water Quality Control Bd., 1981, 620 S.W.2d 515 (“Opinions of qualified experts
constitutes valid evidence and may support decision of administrative tribunal.”).

       Experts from the State testified that Dr. Cox’s practice of looking over a herd, without
examining the animals, was not enough to gain a sufficient knowledge of the animals in order
to prescribe medications. Even though Dr. Cox’s expert testified that examining animals was


        15
           We note that Cady involved a different rule governing veterinary medicine, Tennessee Rule and
Regulation 1730-01-.02(1), which Dr. Cox was also charged with violating, supra. In fact, the Cady decision
invalidated portions of that rule on August 27, 2009, finding that the “scope of the practice of veterinary
medicine” was over-broad and contradicted the definition of veterinary medicine contained in Tennessee
Code Annotated Section 63-12-103. See Cady, 2009 WL 2707398, at *7. The facts in Cady involved a lay
person charged with acting as a veterinarian without a license for performing artificial inseminations on
horses. Id. at *1. Dr. Cox does not argue in his brief that the Cady decision means that Tennessee Rule and
Regulation 1730-01-.02(3) is invalid as it applies to him, nor do we conclude so. The Cady decision
invalidating Tennessee Rule and Regulation 1730-01-.02(1) was filed after the Board’s decision in the
present case and Dr. Cox is a licensed veterinarian obviously performing services within the scope of the
practice of veterinary medicine. Therefore, as a threshold matter, Dr. Cox was properly charged with a
violation of Tennessee Rule and Regulation 1730-01-.02(3).

                                                   -15-
not always required, he did state that he would prescribe without an examination only if he
was very familiar with the farm and that the level of involvement Dr. Cox had with his
patients, as reflected in his records, was below the standard of care. Indeed, in our review of
Dr. Cox’s records and the testimony of Dr. Cox’s clients, we conclude that, in general, the
level of actual involvement (not merely phone conversations) reflected in the records is
substantially similar to the level of involvement testified to by the witnesses. Therefore, we
conclude that there was sufficient evidence to support the Board’s decision with regard to
this violation.

                    2. The Board’s decision was arbitrary or capricious

       Dr. Cox also argues that the decision of the Board was arbitrary or capricious or
characterized by an abuse of discretion or clearly unwarranted exercise of discretion. An
agency’s decision is arbitrary or capricious if it lacks any rational basis. See MobileComm
of Tennessee, Inc. v. Tennessee Public Service Comm'n, 876 S.W.2d 101, 104 (Tenn. Ct.
App. 1993) (citing Pace Co., Div. of AMBAC I., Inc. v. Dept. of Army, 344 F.Supp. 787,
790 (W.Dist. Tenn. 1971)).

       Dr. Cox first argues that he was not provided sufficient notice in the Notice of
Charges that he could be sanctioned for violations that did not concern Beatyview Farm. “In
context of administrative hearing process, basic due process requires notice reasonably
calculated under all circumstances to apprise interested parties of claims of opposing
parties.” McClellan v. Board of Regents of State University, 921 S.W.2d 684, 688 (Tenn.
1996) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct.
652, 657, 94 L.Ed. 865 (1950)). “The purpose of due process requirements is to notify the
individual in advance in order to allow adequate preparation and reduce surprise.”
McClellan, 921 S.W.2d 688 (citing Memphis Light, Gas & Water Division v. Craft, 436
U.S. 1, 14, 98 S.Ct. 1554, 1562–63, 56 L.Ed.2d 30 (1978).

        Here, the Notice of Charges specifically states that it concerns both Dr Cox’s “regular
activities” in prescribing medications and his actions in “the course of his employment.”
Therefore, he was on notice that the charges concerned his practice as a whole rather than
simply the complaint regarding Beatyview Farm. While the Notice of Charges did state that
it pertained to Dr. Cox’s ongoing activities for the Cooperative, rather than Co-Op Vet
Health, Co-Op Vet Health is a subsidiary of the Cooperative and the allegations in the Notice
gave Dr. Cox adequate notice that he would need to prepare a defense for his regular
prescribing activities. Indeed, Dr. Cox’s records had been the subject of a prior motion to
compel by the State. At that time, Dr. Cox argued that the records were not relevant because
the original complaint against him had been withdrawn and the Notice of Charges only
notified him that he needed to defend the allegations concerning Beatyview Farm. Nearly six

                                             -16-
months prior to the hearing, however, the ALJ permitted the discovery of the records, ruling
that the records were evidence of his alleged ongoing inappropriate practices, as detailed in
the Notice of Charges. Therefore, Dr. Cox was clearly on notice that his records and his
ongoing inappropriate prescribing practice were at issue in the contested hearing. As this
error did not affect Dr. Cox’s ability to prepare his defense and did not affect the merits of
the case, we will not reverse the decision of the Board. See Tenn. Code Ann. §4-5-322 (“No
agency decision pursuant to a hearing in a contested case shall be reversed, remanded or
modified by the reviewing court unless for errors that affect the merits of such decision.”).

       Dr. Cox also argues that the Board’s reliance on his records was error as the Notice
of Charges did not allege any record-keeping violations. However, the very regulations that
Dr. Cox is charged with violating in the Notice of Charges contain requirements that place
Dr. Cox’s records at issue. See Tenn. Comp. R. & Regs. 1730-01-.02(3) (directing the Board
to consider whether a physical examination was “first done and appropriately documented”
in order to determine whether medications were appropriately prescribed) (emphasis added).
Therefore, the Board had a rational basis for concluding that the Notice of Charges informed
Dr. Cox that his records could be considered relevant evidence of the charges.

        Dr. Cox next argues that the Board’s large animal veterinarians were biased against
him because they are competitors. This argument is likewise without merit. Tennessee Code
Annotated Section 4-5-302(b) states that “[a]ny party may petition for the disqualification
of an administrative judge, hearing officer or agency member promptly after receipt of notice
indicating that the individual will serve or, if later, promptly upon discovering facts
establishing grounds for disqualification.” See also McClellan v. Board of Regents of State
University, 921 S.W.2d 684, 688 (Tenn. 1996) (“Allowing parties to acquiesce in the
procedures, but to challenge those same procedures on appeal is inefficient and
unreasonable.”). Dr. Cox does not argue that he has received any new information
concerning the large animal veterinarians on the Board or that he was unaware prior to the
contested hearing that some of the members were large animal veterinarians. Indeed, Dr. Cox
did seek to have two members of the Board disqualified,16 but did not seek any action from
the large animal veterinarians that he is now arguing are biased. Accordingly, this argument
is untimely.

       Even if this argument had been properly introduced in the agency proceedings, Dr.
Cox failed to present any evidence that the large animal veterinarians were biased in this case
other than the broad allegation that they are competitors with Dr. Cox. More than base
allegations are needed to overcome the presumption that board members perform their duties


       16
          The two Board members whom Dr. Cox sought to disqualify recused themselves prior to the
contested hearing.

                                              -17-
in good faith. See Martin v. Sizemore, 78 S.W.3d 249, 266 (Tenn. Ct. App. 2001) (“Unless
the person challenging a board member for bias comes forward with evidence of bias of this
sort, the courts will presume that the challenged board member, like other public officials,
will perform his or her duty in good faith and in the manner prescribed by law.”); cf.
Ogrodowczyk v. Tennessee Bd. for Licensing Health Care Facilities, 886 S.W.2d 246, 251
(Tenn. Ct. App. 1994) (Cantrell, J., concurring) (finding the fact that the Board relied on
expert witnesses who were competitors of the sanctioned individual was not sufficient to
invalidate the Board’s decision).

        Dr. Cox finally argues that there was insufficient proof that Dr. Cox’s violations were
knowing and deliberate as required in order to impose Type A sanctions. “Because the
appropriate remedy is peculiarly within the discretion of the agency, we will only review
whether the remedy is ‘unwarranted in law’ or ‘without justification in fact.’” Byrd v.
Tennessee Bd. of Chiropractic Examiners, No. M2010–01473–COA–R3–CV, 2011 WL
3558166, at *9 (Tenn. Ct. App. Aug. 11, 2011) (quoting Robertson v. Tenn. Bd. of Social
Worker Certification & Licensure, 227 S.W.3d 7, 13–14 (Tenn. 2007)). The Board is
entitled to impose Type A sanctions when the violation is knowing and deliberate or when
there “is likely to be an imminent substantial threat to the health, safety and welfare of an
individual client or the public.” Tenn. Comp. R. & Regs. 1730-01-.15(5)(b). Some of the
board members expressed grave concerns over the possibility of over-prescribing certain
medications in dairy cattle, which could affect public health and welfare. In addition, Dr. Cox
had previously been concerned about whether his practice was operating within the confines
of the law, as others had made complaints to him that he was operating in an unethical
manner. After writing to the Board concerning his practice, the Board replied that he could
seek a declaratory order, which Dr. Cox failed to do. Therefore, evidence shows that Dr. Cox
was aware of the law and deliberately continued to operate his practice even after others
expressed their concerns as to its propriety. Accordingly, we conclude that the Board’s
decision to impose Type A sanctions was warranted in law and justified in fact.

                                       V. Conclusion

        The decisions of the Board of Veterinary Medical Examiners and the Chancery Court
are affirmed and this cause is remanded for the appropriate imposition of sanctions. Costs
of this appeal are taxed to Appellant, Kevin Cox D.V.M., and his surety.


                                                    ___________________________
                                                    J. STEVEN STAFFORD, JUDGE




                                             -18-
