                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               November 16, 2012 Session

  ERNEST B. KLEIER, JR., M. D. v. TENNESSEE BOARD OF MEDICAL
                          EXAMINERS

                Appeal from the Chancery Court for Davidson County
                    No. 10588II    Carol L. McCoy, Chancellor


                No. M2012-00463-COA-R3-CV - Filed January 9, 2013


       A physician convicted of driving under the influence in another state was adjudged
to have engaged in “unprofessional, dishonorable or unethical conduct”, as proscribed by
Tenn. Code Ann. § 63-6-214(b)(1), by the Tennessee Board of Medical Examiners; the
Board placed the physician’s medical license on probation and ordered him to obtain
treatment and counseling. On petition for review, the Chancery Court held that the statute
was unconstitutionally vague and reversed the Board’s decision. We reverse, holding that
Tenn. Code Ann. § 63-6-214(b)(1) provides sufficient notice to the physician that his conduct
was subject to potential discipline by the Board.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed;
                                  Case Remanded

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R. and A NDY D. B ENNETT, JJ., joined.

Sara Elizabeth Sedgwick and William E. Young, Nashville, Tennessee, for the Appellant,
Tennessee Board of Medical Examiners.

Daniel Davis Warlick, Nashville, Tennessee, for the Appellee, Ernest B. Kleier, Jr., M. D.

                                         OPINION

       Dr. Ernest B. Kleier, Jr., is a physician licensed to practice in Tennessee; on July 6,
2008 he was arrested in Lake of the Ozarks, Missouri, for driving under the influence. He
pled guilty to the misdemeanor charge on September 23, 2008. On September 22, 2009, the
Tennessee Board of Medical Examiners (“the Board”) issued a Notice of Charges, charging
Dr. Kleier with unprofessional, dishonorable or unethical conduct, based on his guilty plea.
A hearing was held before a panel of the Board on January 27, 2010, at which Aaron
Harrison, the state trooper who arrested Dr. Kleier, Kenneth Baker, owner and program
director of Behavioral Treatment Providers, LLC, and Dr. Kleier testified.

       On February 10, 2010, the Board issued its Final Order in which it made the following
findings of fact:

       2. On September 23, 2008, [Dr. Kleier] pled guilty to DUI, a misdemeanor in
       Missouri.
       3. Blood alcohol contents that was drawn [from Dr. Kleier] over an hour after
       the [traffic stop] was .182, more than twice the legal limit.
       4. The video evidence clearly shows that [Dr. Kleier] was impaired at the time
       of the [traffic stop].”

The Board concluded that Dr. Kleier had violated Tenn. Code Ann. § 63-6-214(b)(1).1 The
Board placed Dr. Kleier’s medical license on probation for a term of two years, required him
to “undergo an evaluation by the Vanderbilt Comprehensive Assessment Program (“VCAP”)
. . . within 90 days” and to “obtain and maintain the advocacy of the Tennessee Medical
Foundation (“TMF”) program for a period of not less than two (2) years[.]” The order
provided that Dr. Kleier could, after a six-month period, petition the Board for an Order of
Compliance to lift the probation of his license.

       Dr. Kleier filed a petition for a rehearing in which he alleged that the Notice of
Charges was impermissibly vague, that the requirement that he undergo an evaluation by an
addiction assessment program was “not based on a foundation of factual evidence[,]” and
that TMF had informed Dr. Kleier that “under the facts and circumstances of this case, [he]
was not a proper candidate for inclusion in any TMF program.” The petition was denied.

        Dr. Kleier timely filed a Petition for Review of Agency Action in the Chancery Court
pursuant to Tenn. Code Ann. § 4-5-322, in which he alleged that the Board’s action in
“placing his license on probation with conditions was arbitrary and capricious, made upon
an unlawful procedure and is unsupported by evidence that is both substantial and material
in the light of the entire record.” On April 29, 2011, the Board filed its Brief on Judicial




       1
         Tenn. Code Ann. § 63-6-214(a) grants the Board the power to discipline a physician upon any of
the twenty-two grounds listed at § 63-6-214(b), including (b)(1) which proscribes “unprofessional,
dishonorable or unethical conduct.”


                                                 -2-
Review asserting that the Board’s final order was supported by substantial and material
evidence and was not arbitrary and capricious; oral arguments were heard on July 14, 2011.2

        On January 23, 2012, the court issued a Memorandum and Order holding:

        [T]he charge against Dr. Kleier did not describe the minimally acceptable level
        of professional performance that he was required to meet or had failed to meet.
        . . . Nor did the charge filed against Dr. Kleier state the conduct that
        exemplified one or more of [the terms unprofessional, dishonorable or
        unethical].
        ***
        Absent some definition of the standard of care, the general terms in Tenn.
        Code Ann. § 63-6-214(b)(1) are impermissibly vague as is the charge brought
        against Dr. Kleier.

The court reversed the Board’s decision.

        The Board appeals and articulates the issues as follows:

               1. The Chancellor erred by reversing the Board’s Final Order placing
        Dr. Kleier’s license on probation and requiring him to seek counseling to
        determine if he had an alcohol abuse problem and, if so, to obtain treatment.
               2. The Chancellor erred in requiring the Board to articulate a standard
        of care, when the medical standard of care was not an issue in the specific
        disciplinary charge brought against Dr. Kleier under Tenn. Code Ann. § 63-6-
        214(b)(1) for unprofessional and dishonorable conduct.
               3. The Chancellor erred by concluding that the general terms of Tenn.
        Code Ann. § 63-6-214(b)(1), as well as the charge brought against Dr. Kleier,
        were impermissibly void for vagueness and thereby violated constitutional due
        process standards.

                                            DISCUSSION

       Disciplinary proceedings against medical licensees are conducted in accordance with
the Uniform Administrative Procedures Act (“UAPA”). Tenn. Code Ann. § 63-6-216. Court
review of UAPA proceedings is set forth at Tenn. Code Ann. § 4-5-322(h), which provides



        2
        On September 23, 2011, the trial court granted Dr. Kleier permission to file a supplemental brief,
which was filed on November 4. The Board filed its reply to the Supplemental brief on December 19.

                                                   -3-
that a court may modify or reverse the decision of an administrative agency if the agency’s
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) (A) Unsupported by evidence which is both substantial and material in the
       light of the entire record.

This Court reviews an administrative decision under the same standard as the trial court.
Miller v. Tenn. Board of Nursing, 256 S.W.3d 225, 229 (Tenn. Ct. App. 2007). When we
review the decision of the trial court, we determine whether the trial court properly applied
the standard of review found in Tenn. Code Ann. § 4-5-322(h). See Jones v. Bureau of Tenn
Care, 94 S.W.3d 495, 501 (Tenn. Ct. App. 2002) (quoting Papachristou v. Univ. of Tenn.,
29 S.W.3d 487, 490 (Tenn. Ct. App. 2000)).

       Construction of statutes is a question of law, which we review de novo without
affording the trial court’s decision any presumption of correctness. Lovelace v. City of
Knoxville, No. E2000-01609-COA-R3-CV, 2001 WL 293001, at *4 (Tenn. Ct. App. March
27, 2001); City of Jackson v. Shehata, No. W2005-01522-COA-R3-CV, 2006 WL 2106005,
at *4 (Tenn. Ct. App. July 31, 2006) (citing City of Knoxville v. Entm’t Res., LLC, 166
S.W.3d 650, 655 (Tenn. 2005)).

       The trial court held that “[a]bsent some definition of the standard of care or a violation
of a specific standard of care or professional practice standard, the general terms in Tenn.
Code Ann. § 63-6-214(b)(1) are impermissibly vague[.]” The Board contends that Dr. Kleier
was given sufficient notice that the conduct for which he was being disciplined was
“specifically prohibited as a violation of the Medical Practice Act” and, consequently, did
not violate due process standards.

Vagueness

       An individual’s license to practice medicine is a constitutionally protected property
interest which can be revoked, suspended or denied only upon proof of culpable conduct;
absent such proof, a physician has a reasonable expectation that he or she will continue to
hold the license. Martin v. Sizemore, 78 S.W.3d 249, 262–263 (Tenn. 2001). The property
interest is protected by the Due Process Clause of the Fourteenth Amendment to the United
States Constitution and Art. I, § 8 of the Tennessee Constitution. Id. It is fundamental to the

                                               -4-
concept of due process that a statute does not provide the requisite notice to the individual
“if its prohibitions are not clearly defined.” Davis-Kidd Booksellers, Inc. v. McWherter, 866
S.W.2d 520, 531 (Tenn. 1993) (citing Grayned v. City of Rockford, 408 U.S. 104, 108
(1972)).3 A statute is too vague to satisfy the notice requirement when “men of common
intelligence must necessarily guess at its meaning and differ as to its application.” Williams
v. State Dept. of Health and Env’t, 880 S.W.2d 955, 958-59 (Tenn. Ct. App. 1994) (citing
Leech v. Am. Booksellers Assoc., Inc., 582 S.W.2d 738, 746 (Tenn. 1979)).

       Of particular import to the case at bar is the following language from Janeway v. State
Bd. of Chiropractic Examiners:

       The right to practice a lawful profession is a property right of which one
       cannot be illegally deprived. State Bd. of Medical Examiners v. Friedman, 150
       Tenn. 152, 263 S.W. 75; Prosterman v. Tennessee State Board of Dental
       Examiners, 168 Tenn. 16, 22, 73 S.W.2d 687. But a license to practice a
       profession affecting the welfare of the public and, therefore, subject to the
       police power of the state is not a contract entitling the holder to continue the
       practice of his profession unrestricted and unregulated. State Bd. of Medical
       Examiners v. Friedman, supra. The Legislature unquestionably has the right
       in the exercise of the police power of the state to set up boards to investigate
       the practice of such a profession and to endow such boards with the right and
       duty to revoke for good cause a license previously granted.

       The power so delegated, however, can involve only a discretion as to when a
       proper occasion exists for executing the power. It cannot extend to the making
       of a new law. State ex rel. Llewellyn v. Knox County, 165 Tenn. 319,
       331–332, 54 S.W.2d 973. And to avoid a violation of this principle we think
       it must be said that a revocation of a license to practice a lawful profession
       cannot be predicated on acts or conduct not specified in the statute or


       3
           As noted in State v. Lyons:

       The due process doctrine of vagueness also encompasses as a principal element the
       requirement that legislatures set reasonably clear guidelines for law enforcement officials
       and triers of fact to prevent arbitrary and discriminatory enforcement. A statute may be held
       vague on its face if it provides no legally fixed standards and leaves to the “personal
       predilections” of an officer, prosecutor, judge or jury the determination of the illegality of
       conduct.

802 S.W.2d 590, 591 (Tenn. 1990) (citations omitted).


                                                    -5-
       embraced within its general terms. See to that effect Graeb v. State Medical
       Examiners, 55 Colo. 523, 139 P. 1099, 47 L.R.A.,N.S., 1063.

       This does not mean, however, that in addition to providing specific grounds for
       revocation such boards may not be validly granted the power to revoke upon
       general grounds which, by common understanding and universally accepted
       standards, are regarded as dishonorable, disreputable or incompatible with the
       honest practice of the licensed profession and the public welfare. For example,
       charges involving such general grounds as ‘unprofessional’, ‘dishonorable’ or
       ‘immoral’ conduct and words of like general import in connection with the
       practice of the profession of medicine are frequently made the predicate for
       revocation of a license to practice that profession. See Bell v. Board of
       Regents, etc., 295 N.Y. 101, 65 N.E.2d 184, 163 A.L.R. 900; Anno. 163
       A.L.R. p. 909; 41 Am.Jur. 175.

231 S.W.2d 584, 587-88 (Tenn. Ct. App. 1950).

       “Unprofessional conduct” has been defined by this court as “conduct that violates the
rules or the ethical code of a profession or that is unbecoming a member of a profession in
good standing[.]” Baltrip v. Norris, 23 S.W.3d 336, 340 (Tenn. Ct. App. 2000) (citing Morris
v. Clarksville-Montgomery County Consol. Bd. of Educ., 867 S.W.2d 324, 329 (Tenn. Ct.
App. 1993)). The phrase is to be construed according to its “common and approved usage”
with regard to the context in which it is used. Morris, 867 S.W.2d at 330. A statute which
authorizes the revocation of a professional license for unprofessional acts or conduct
“contemplates conduct that shows that the person guilty of it either is intellectually or morally
incompetent to practice the profession or has committed an act or acts of a nature likely to
jeopardize the interest of the public.” 61 Am. Jur. 2d Physicians, Surgeons, and Other
Healers § 77. The conduct in question “need not have occurred during the actual exercise
of professional [medicine] skills,” and yet it may still be an indication of “unfitness to
practice medicine if it raises reasonable concerns” that the physician might harm members
of the public or if the physician’s conduct lowers the medical profession’s standing in eyes
of the public. Id. at § 78.

        Tenn. Code Ann. § 63-6-214(b) lists twenty-two grounds upon which a Board may
sanction a physician. Twenty-one of the grounds – (b)(2)-(22) – identify specific conduct
or actions which may lead to discipline; the final ground, (b)(1), sets out a general standard
of conduct for physicians.4 All of the grounds in the statute seek to protect the physician and


       4
           This court noted in Tenn. Dep’t. of Health v. Frisbee, No. 01A01-9511-CH-00540, 1998 WL 4718
                                                                                           (continued...)

                                                  -6-
the public which the physician serves, are related to the practice of medicine and, thereby,
subject to regulation by the Board. The Board could properly consider driving under the
influence an act which could jeopardize the interest of the public, and be an indication of
“unfitness to practice medicine[.]” See 61 Am. Jur. 2d § 77-78. This conduct involves the
physician’s judgment and may, under a given circumstance, raise reasonable concerns that
the physician might harm members of the public and as to the physician’s fitness to practice
medicine. Id.5

      In this manner, the term “unprofessional, dishonorable or unethical conduct” is
adequate to advise Dr. Kleier that a conviction for driving under the influence could subject
him to a proceeding before the Board to determine his fitness to practice and is not
unconstitutionally vague.

                                              Standard of Care

       The Board next contends that the charge against Dr. Kleier did not involve a medical
standard of care issue and, consequently, the trial court erred when it held that the Board was
required to articulate a standard of care specific to the charge.

       The court cited Rich v. Tenn. Bd. of Medical Examiners, 350 S.W.3d 919 (Tenn. 2011)
for the proposition that Tenn. Code Ann. § 63-6-214(b)(1) requires “an understanding of
relevant standards of care for conduct that relates to the performance of the function or duties
of the doctor’s profession[.]” The court held that “[Dr. Kleier’s] unseemly conduct in
another state was used as a platform for disciplining his professional license without
describing how that conduct undercut the minimally acceptable level of professional
competence expected of all physicians in Tennessee.”

       We do not read Rich to hold that the Board was required to articulate a medical
standard of care in this case. Rich involved a disciplinary proceeding brought by the Board
of Medical Examiners against a physician whose practice areas included chelation therapy,


        4
            (...continued)
(Tenn. Ct. App. Jan. 9, 1998), that Tenn. Code Ann. § 63-6-214(b)(1) requires “some consideration of
professional practice standards.”
        5
           Pertinent to the case before us is Tenn. Code Ann. § 63-6-214(b)(5), which establishes as a ground
for discipline “habitual intoxication or . . . the use of intoxicating liquors . . . in such manner as to adversely
affect the person’s ability to practice medicine.” The fact that this specific ground relative to the use of
intoxicating liquors by physicians was included as part of § 63-6-214 indicates that the inappropriate use of
intoxicating liquors is a standard of conduct which could constitute “unprofessional, dishonorable or
unethical” conduct within the meaning of § 63-6-214(b)(1).

                                                       -7-
hydrogen peroxide therapy, and the use of methadone to treat patients suffering from opioid
dependency. The Board found that Dr. Rich committed acts which constituted grounds for
discipline under Tenn. Code Ann. § 63-6-214(b)(1), (4), (12) and (14), 21 U.S.C. §
823(g)(1), and certain Board rules; the chancery court affirmed the Board’s judgment in all
respects. This court affirmed the Board’s findings that Dr. Rich violated Tenn. Code Ann.
§ 63-6-214(b)(14), the Board rules and the federal statute; we determined, however, that with
respect to the charges encompassed by Tenn. Code Ann. § 63-6-214(b)(1), (4) and (12),
Tenn. Code Ann. § 63-6-214(g)6 required the Board to articulate the applicable standard of
care. Our Supreme Court granted the Board’s application for permission to appeal and held
that the Board was required to articulate the applicable standard of care in the course of its
deliberations. Rich, 350 S.W.3d at 929. Significant to the ruling in Rich was the fact that
the matters for which Dr. Rich was being sanctioned directly related to his diagnosis and
treatment of patients; the inclusion of the general proscription at Tenn. Code Ann. § 63-6-
214(b)(1) was ancillary to the more specific proscriptions at Tenn. Code Ann. § 63-6-
214(b)(4)7 and (12).8


        6
            Tenn. Code Ann. § 63-6-214(g) states:

        For purposes of actions taken pursuant to subdivisions (b)(4), (12) and (13) or any other
        subsection in which the standard of care is an issue, any Tennessee licensed physician
        serving as a board member, hearing officer, designee, arbitrator or mediator is entitled to
        rely upon that person's own expertise in making determinations concerning the standard of
        care and is not subject to voir dire concerning such expertise. Expert testimony is not
        necessary to establish the standard of care. The standard of care for such actions is a
        statewide standard of minimal competency and practice that does not depend upon expert
        testimony for its establishment. However, to sustain actions based upon a violation of this
        standard of care, the board must, in the absence of admissions or other testimony by any
        respondent or such respondent's agent to the effect that the standard was violated, articulate
        what the standard of care is in its deliberations.

        7
            At the time Rich was decided, Tenn. Code Ann. § 63-6-214(b)(4) provided:

        (b) The grounds upon which the board shall exercise such power include, but are not limited
        to:
        ***
        (4) Gross malpractice or a pattern of continued or repeated malpractice, ignorance,
        negligence or incompetence in the course of medical practice;

The statute was amended by 2012 Pub. Acts, c. 798, § 37 to replace the word “malpractice” with “health care
liability.”
        8
            At the time Rich was decided, Tenn. Code Ann. § 63-6-214(b)(12) provided:
                                                                                                 (continued...)

                                                     -8-
       The evidentiary standards applicable to alleged violations of Tenn. Code Ann. § 63-6-
214(b) was before this court in Tenn. Dept. of Health v. Frisbee, No. 01A01-9511-CH-
00540, 1998 WL 4718 (Tenn. Ct. App. 1998), wherein Dr. Frisbee was charged with having
committed malpractice on six patients and performing twenty-two unnecessary surgeries; a
violation of § 63-6-214(b)(1) was among the statutory grounds alleged. In the course of
resolving the issue of whether expert testimony in disciplinary proceedings had to comply
with the locality rule that is applicable in medical malpractice proceedings at Tenn. Code
Ann. § 29-26-115, the court had occasion to discuss the standards of care applicable in
disciplinary proceedings. Of particular relevance to the instant case we stated:

        Tenn. Code Ann. § 63-6-214(b) contains twenty [now twenty-two] grounds for
        disciplining physicians, but not all of these grounds require proof any
        particular standard of care. Thirteen disciplinary grounds require proof of
        specific inappropriate conduct, two grounds are general catch-all provisions,
        and five grounds [including § 63-6-214(b)(1)] require some consideration of
        professional practice standards. No statute requires the use of the same
        standard of care for all of the latter five grounds. In fact, there is no statutory
        direction of any sort concerning the standard of care applicable to any of these
        grounds.

Frisbee, at *4. In determining that the locality rule did not apply, we reiterated the
distinction between the grounds at § 63-6-214(b) which specifically involve malpractice and
those which do not. Id. at 6.

        The proceeding before us involves the conviction of Dr. Kleier for an offense not
directly related to the treatment he renders patients. No standard of medical care was
required to be articulated by the Board and accordingly, the trial court erred when it so held.9


        8
            (...continued)

        (b) The grounds upon which the board shall exercise such power include, but are not limited
        to:
        ***
        (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;
        9
          We also note that the court held in Rich that the failure of the Board to articulate a standard of care
“did not warrant reversal of the Board’s ruling that [the physician] had violated [Tenn. Code Ann. § 63-6-
214(b)(1), (4), and (12)].” Rather the case was remanded for the Board to conduct deliberations and to
                                                                                                    (continued...)

                                                      -9-
                                             C ONCLUSION

       For the foregoing reasons, the judgment of the trial court is reversed and the decision
of the Board of Medical Examiners affirmed. The case is remanded to the Chancery Court
with instructions to remand the case to the Board for further proceedings in accordance with
this opinion.




                                                  ___________________________________
                                                  RICHARD H. DINKINS, JUDGE




        9
            (...continued)
articulate the appropriate standard of care during its deliberations. Rich, at 928-29.


                                                   -10-
