                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE

        RICHARD FELDMAN v. TENNESSEE BOARD OF MEDICAL
                         EXAMINERS

                    Appeal from the Chancery Court for Davidson County
                      No. 98-3217-I Irvin H. Kilcrease, Jr., Chancellor



                   No. M1999-00474-COA-R7-CV - Decided April 26, 2000


The Board of Medical Examiners disciplined a physician for “unprofessional, dishonorable or
unethical conduct,” and placed his license on probation for one year, with continuation of his
practice subject to conditions which included obtaining the “advocacy” of another doctor. The
following year, the Board issued a new notice of charges, alleging failure to comply with the
conditions in the probationary order. After a hearing, the Board found the physician guilty of the
new charges, and placed his license on probation for five years, with new conditions placed upon the
continuation of his practice. The physician petitioned the chancery court for judicial review of the
Board’s action. The chancellor affirmed the order of the Board. On appeal, we affirm the new order
of probation, but reverse as to those conditions which are unsupported by the evidence in the record.

Tenn. R. App. P. 7 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part;
                            Vacated in Part; and Remanded

CANTRELL , P.J., M.S., delivered the opinion of the court, in which KOCH , and COTTRELL , JJ joined.

Frank J. Scanlon, Nashville, Tennessee, for the appellant, Richard Feldman.

Paul G. Summers, Attorney General and Reporter, Michelle Hohnke Joss, Assistant Attorney
General, for the appellee, Tennessee Board of Medical Examiners.


                                            OPINION

                                               I.
                                            PROBATION

        In 1997, the Tennessee Board of Medical Examiners heard charges of “unprofessional,
dishonorable or unethical conduct” against Dr. Richard Feldman, a Nashville physician in private
practice. See Tenn. Code. Ann. § 63-6-214(b)(1). The substance of the charges had to do with
inappropriate conduct towards female patients and staff.
        On February 10, 1997, the Board issued findings of fact consistent with the charges. These
included findings that Dr. Feldman had engaged in sexual intercourse with a teenage patient, had
made derogatory and insensitive comments to female staff and patients, and that he had exchanged
medical treatment and prescriptions for sex at a massage parlor. The Board put Dr. Feldman’s
license to practice medicine on probation for one year, and set conditions upon his practice during
the period of probation. The conditions relevant to this appeal are recited below:

       Respondent shall obtain the advocacy of David Dodd, M.D. of the Physicians’ Health
       Program within three months of the effective date of this Order or face automatic
       suspension.

       It is Respondent’s responsibility to obtain Dr. Dodd’s advocacy and report back to
       the Board within ninety (90) days with evidence that he has obtained Dr. Dodd’s
       advocacy to continue practice while undergoing evaluation and, if necessary, therapy
       for impulse control problems.

        Other conditions included personal delivery by Dr. Feldman of the Board’s order to the
Medical Director and administrator of all hospitals in which he had been granted practice privileges,
as well as a civil fine of $2,500.

                                              II.
                                          NEW CHARGES

        On February 6, 1998, the Board issued a new Notice of Charges against Dr. Feldman, which
alleged that he had failed to obtain the advocacy of Dr. Dodd, and had failed to submit the required
notice to the Board.
                                            a. Advocacy

         A contested case hearing on the new charges was convened before an administrative judge
on July 21, 1998, with the Board sitting as a jury. Dr. Dodd testified that he had been the director
of the Tennessee Medical Foundation, a program for physicians impaired by mental or emotional
illness, and that the foundation offered “advocacy” for impaired physicians in their dealings with
hospitals, insurance companies, courts, and the Board of Medical Examiners, in exchange for
compliance with recommended treatment and documentation of effort.

       Dr. Dodd agreed to advocate for Dr. Feldman, and recommended that he go to a specific
psychiatrist at the Menninger Clinic for a psychological assessment. After an assessment of several
days in early March 1998, Dr. Feldman was diagnosed with narcissistic personality disorder and
sexual addiction, two conditions that require long-term treatment. The assessing psychiatrist
recommended that Dr. Feldman return to the clinic for six continuous weeks of treatment. Dr.
Feldman did return, but left the Menninger Clinic after three weeks. After returning, he did not
communicate with Dr. Dodd, and he lost Dr. Dodd’s advocacy.


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        Dr. Feldman subsequently returned to the Menninger Clinic, and completed three additional
weeks in two sessions. He also began treatment with a psychologist, Dr. Larry Weitz, and began
attending regular meetings of Sex Addicts Anonymous. Dr. Weitz testified that Dr. Feldman had
made real progress in dealing with his problems. The week prior to the hearing, Dr. Dodd and Dr.
Feldman signed an agreement to restore Dr. Dodd’s advocacy

                                            b. Notice

        Dr. Feldman’s testimony was somewhat self-contradictory in regard to his attempts to notify
the Board of his compliance with its orders. He said that he attended a Board meeting in order to
personally tell Dr. David Cunningham, the Chairman of the panel that heard his case, that he had
obtained Dr. Dodd’s advocacy within the period of time required by the 1997 order of probation, but
that the security officers physically prevented him from approaching. He also claimed that he
telephoned Dr. Cunningham several times, and left messages for him on four or five occasions, but
that none of his messages were ever returned.

         Dr. Feldman also testified that he thought that Dr. Dodd’s own contact with the Board would
satisfy the requirement of notice. In response to questions, he complained that the Board’s order did
not specify in what manner the Board was to be notified, and he claimed to be following his
attorney’s suggestions as to the methods of notification to employ.

                                    c. The Board’s Findings

        The Board of Medical Examiners found after deliberation that Dr. Feldman had failed to
obtain the advocacy of Dr. Dodd, and failed to report such advocacy to the Board. In an order filed
August 31, 1998, the Board concluded that Dr. Feldman’s failure to comply with a lawful order of
the Board constituted unprofessional conduct in violation of Tenn. Code. Ann. § 63-6-214(b)(1) and
(b)(2).

       The sanctions imposed by the Board for Dr. Feldman’s unprofessional conduct were prefaced
by a policy statement:

       This action is taken so that this physician can continue to provide proper and
       adequate care to the citizens of the State of Tennessee and for the safety and welfare
       of the citizens of Tennessee.

       Among the sanctions ordered were the following:

       1. Respondent’s license is placed on PROBATION for a period of five (5) years,
       effective July 21, 1998.

       2. Respondent must maintain the continued advocacy of the Tennessee Medical
       Foundation for the entire probationary period (five (5) years) or face automatic
       suspension.

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       3. Respondent shall submit in writing proof of his continued advocacy by the
       Tennessee Medical Foundation to the Board yearly. The reports shall be sent by
       certified mail to the Tennessee Board of Medical Examiners, attention Linda
       Hudgins, 1st Floor, Cordell Hull Building, 425 Fifth Avenue North, Nashville, TN
       37247-1010.

       4. Respondent must obtain an evaluation by the Menninger Clinic yearly throughout
       the entire term of his probation. Respondent must provide the written results of his
       yearly evaluation to the Tennessee Board of Medical Examiners and to the Tennessee
       Medical Foundation.

                               d. Proceedings in Chancery Court

        On October 28, 1998, Dr. Feldman filed a petition for judicial review in the Chancery Court
of Davidson County. See Tenn. Code. Ann. § 4-5-322. The Court affirmed the action of the Board
of Medical Examiners, finding that there was substantial and material evidence in the record to
support the Board’s finding that Dr. Feldman violated its order of February 11, 1997, and was guilty
of unprofessional conduct. Further, the court found that the Board did not act arbitrarily or
capriciously, nor did it abuse its discretion, in imposing the sanctions it did. This appeal followed.


                                                IV.
                                     ARGUMENTS ON APPEAL

       Upon appeal of a decision taken by an administrative agency following a contested case
proceeding, the standard of review in this court is the same as it is in the chancery court. Ware v.
Green, 984 S.W.2d 610, 614 (Tenn. Ct. App. 1998). That standard is stated in Tenn. Code. Ann. §
4-5-322(h):

               The court may affirm the decision of the agency or remand the case for further
       proceedings. The court may reverse or modify the decision if the rights of the
       petitioner have been prejudiced because the administrative findings, inferences,
       conclusions or decisions are:

               (1) In violation of constitutional or statutory provisions;
               (2) In excess of the statutory authority of the agency;
               (3) Made upon unlawful procedure;
               (4) Arbitrary or capricious or characterized by abuse of discretion or clearly
       unwarranted exercise of discretion; or
               (5) Unsupported by evidence which is both substantial and material in the
       light of the entire record.




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                                        a. Findings of Fact

       Dr. Feldman argues on appeal that the Board’s findings of fact are unsupported by substantial
and material evidence in the record. He contends that since it is unrefuted that he met with Dr.
Dodd, and that Dr. Dodd agreed to advocate for him less than two weeks after the Board’s order of
February 11, 1997, there is no evidence that he failed to obtain Dr. Dodd’s advocacy as required by
the order. He also contends that he made all reasonable attempts to report his status to the Board,
and that the fact that those attempts were unsuccessful does not, under the circumstances, support
the Board’s finding that he violated its order. We do not agree with either of these arguments.

        The record indicates that the advocacy of Dr. Dodd was a requirement the appellant had to
meet in order to continue practicing medicine while his license was on probation. It is true that the
order said that he had to “obtain” that advocacy within three months, but it appears obvious to us that
the purpose of the requirement was to give Dr. Feldman a reasonable amount of time to arrive at an
appropriate arrangement, not to enable him to practice without having to meet the requirements
established by Dr. Dodd.

        Dr. Dodd’s testimony indicates that his advocacy was not intended to be a one-way street,
but was conditional on the appellant’s compliance with the treatment Dr. Dodd recommended. Both
Dr. Feldman’s and Dr. Dodd’s testimony indicate that Dr. Feldman did not complete his treatment
at the Menninger Clinic in a manner consistent with Dr. Dodd’s wishes, and that when Dr. Feldman
returned from the clinic after three weeks, he failed to contact Dr. Dodd for an extended period of
time.

        Dr. Feldman testified that he cut his treatment at the Menninger Clinic short because of a
continuing financial crisis in his practice that required his attention. If he had informed Dr. Dodd
of this circumstance, perhaps Dr. Dodd would have found another way to make sure that the
appellant received appropriate treatment. Instead, Dr. Feldman avoided Dr. Dodd, and began a
course of treatment of his own choosing. We do not believe such self-treatment meets the advocacy
requirements set out by the Board. We note that in its more recent order, the Board eliminated any
possible ambiguity by requiring the appellant to “maintain the continued advocacy of the Tennessee
Medical Foundation,” rather than just to obtain it.

        As for his failure to notify the Board, we find it difficult to believe that a man as well-
educated as Dr. Feldman would be unable to discover an appropriate method to communicate with
the Board that regulates his own profession. We note that the appellant managed to pay the civil
penalty assessed by the Board, and to call to confirm that his check had been received. We also find
it unworthy of belief that Dr. Feldman thought the notification requirement of the Board’s order was
somehow satisfied by contact between Dr. Dodd and the Board. Again, the Board attempted to
forestall any future use of such an argument by specifying the means of notification in its order of
August 31, 1998.

       Dr. Feldman also argues that the Board erred in finding that his failure to comply with its
orders constituted unprofessional conduct. The gist of his argument is that the term should be

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reserved only for the most egregious conduct, conduct that also must be considered immoral or
dishonorable.

        We note, however, that Tenn. Code. Ann. § 63-6-214(b) sets out grounds for disciplining a
medical license, and that these include “[u]nprofessional, dishonorable or unethical conduct.” In its
deliberations, the Board determined that Dr. Feldman’s conduct was unprofessional, but could not
be considered dishonorable or unethical, thus sustaining a valuable distinction that the appellant
would rather we ignore. Such a distinction is consistent with the idea that an individual who has
been entrusted with a license to a practice medicine is charged with a higher standard of conduct than
is a layperson

                                b. The Severity of the Sanctions

        Dr. Feldman argues that the five year probation imposed by the Board amounted to an
arbitrary or capricious decision because it is “not based on any course of reasoning” or it “disregards
the facts or circumstances of a case without some basis.” Jackson Mobilphone v. Tennessee PSC,
876 S.W.2d 106, 111 (Tenn. Ct. App. 1993).

        We note, however, that in his testimony, Dr. Dodd stated that rehabilitation for narcissistic
personality disorder is a long-term process. Further, Dr. Larry Weitz stated that from his long
experience of working with people who have addictions, it is a lifelong process, and that addiction
is managed rather than cured. It thus appears to us that putting the appellant’s license on probation
for five years while he continues in treatment is based upon sound reasoning, and is not arbitrary or
capricious.

        We feel otherwise about the Board’s requirement that Dr. Feldman submit to an annual
assessment at the Menninger Clinic, and that the written results of that assessment be submitted to
the Board of Medical Examiners and the Tennessee Medical Foundation. Dr. Feldman particularly
objects to the requirement that the Menninger Clinic report to the Board, for any such report would
become part of the public record by operation of law.

        We agree with the appellant that there is no proof in the record that annual evaluations at the
Menninger Clinic are advisable from a rehabilitation point of view. The record indicates rather that
Dr. Feldman’s treating doctors at Menninger did not want him to return, but felt that the
responsibility for his treatment and evaluation rested appropriately with his current providers. Both
Dr. Dodd and Dr. Weitz testified that Dr. Feldman had made significant progress and was on the
right track to rehabilitation, and neither recommended a return to the Menninger Clinic for any
purpose. We therefore find there to be no material evidence in the record to support this portion of
the Board’s order.

                                                  V.

       We vacate paragraph 4 of the order of the Board of Examiners, which requires the appellant
to undergo annual evaluations at the Menninger Clinic, and to supply written results of such

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evaluations to the Tennessee Medical Foundation and the Board of Medical Examiners. In all other
respects, we affirm the orders of the trial court and of the Board. Remand this cause to the Chancery
Court of Davidson County for further proceedings consistent with this opinion. Tax the costs on
appeal equally between the appellant, Richard Feldman, M.D., and the appellee, the Tennessee Board
of Medical Examiners.




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