                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                January 21, 2011 Session

    VISUVALINGAM VILVARAJAH, M.D. v. TENNESSEE BOARD OF
                   MEDICAL EXAMINERS

                Appeal from the Chancery Court for Davidson County
                  No. 10-249-IV    Russell T. Perkins, Chancellor


                 No. M2010-00828-COA-R3-CV - Filed March 9, 2011


Physician appeals Chancery Court decision affirming his summary suspension of his license
to practice medicine on the basis of his conviction in the State of Kentucky for facilitation
to traffic in controlled substances. We affirm the Chancery Court judgment and the summary
suspension of the physician’s license.

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

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.

Frank J. Scanlon, Nashville, Tennessee, for the appellant, Visuvalingam Vilvarajah, M. D.

Sue Ann Sheldon, Nashville, Tennessee, for the appellee, Tennessee Board of Medical
Examiners.

                                        OPINION

       Visuvalingam Vilvarajah, M.D. (“Dr. Vilvarajah”), a physician licensed in Tennessee,
was convicted in Kentucky of one count of facilitation to traffic in controlled substances on
January 11, 2010. On January 27 the Tennessee Board of Medical Examiners (“the Board”)
filed an Application for Order of Summary Suspension for Facilitating Drug Trafficking
against Dr. Vilvarajah, alleging that the Board was authorized to take disciplinary action
against Dr. Vilvarajah based upon his conviction. On January 29 the Board issued an order
summarily suspending Dr. Vilvarajah’s license pending commencement of a formal contested
case hearing.
         Dr. Vilvarajah exercised his right to a post-summary suspension informal hearing,
which was held on February 12; at the conclusion of the hearing, the Board declined to alter
the order of summary suspension. On February 16, Dr. Vilvarajah filed a Petition for Review
in the Davidson County Chancery Court. The court heard the matter on an expedited basis
and on March 10 entered a Memorandum and Order affirming the summary suspension of
Dr. Vilvarajah’s license. Specifically, the chancery court found that the Board was within
its statutory authority when it treated Dr. Vilvarajah’s conviction “as a conviction ‘under the
drug laws’ of Kentucky for purposes of exercising its summary suspension authority.”

       On appeal, Dr. Vilvarajah asserts that facilitation is a separate and distinct offense
from the underlying offense of trafficking in controlled substances and that, as a
consequence, his conviction is not a “conviction of any offense under state or federal drug
laws” within the meaning of Tenn. Code Ann. § 63-6-214(b)(10).1 In addition, he contends
that the summary suspension of his license was arbitrary, capricious and unsupported by
substantial and material evidence.

                                       S TANDARD OF R EVIEW

      The applicable standard of review of the agency’s decision is found at 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
         At the time the proceeding against Dr. Vilvarajah was initiated, Tenn. Code Ann. § 63-6-214(b)(10)
read as follows:

        (b) The grounds upon which the board shall exercise such power include, but are not limited
        to:
        (10) Conviction of a felony, conviction of any offense under state or federal drug laws, or
        conviction of any offense involving moral turpitude.

The statute was amended by Public Chapter 904, effective July 1, 2010 to read:

        (10) Conviction of a felony, conviction of any offense under state or federal laws relative
        to drugs or the practice of medicine, conviction of any offense involving moral turpitude or
        conviction of any offense for which the person is required to register as a sexual offender
        or violent sexual offender pursuant to Title 40, Chapter 39, Part 2.


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        (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 that is both substantial and material in the
        light of the entire record.

       With respect to questions of law, our review is de novo with no presumption of
correctness. County of Shelby v. Tompkins, 241 S.W.3d 500, 505 (Tenn. Ct. App. 2007).
Issues of statutory construction present questions of law and are therefore reviewed de novo
with no presumption of correctness. Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009).
This court applies the substantial and material evidence standard to the agency’s factual
findings. City of Memphis v. Civil Serv. Comm’n, 239 S.W.3d 202, 207 (Tenn. Ct. App.
2007); Bobbitt v. Shell, 115 S.W.3d 506, 509-10 (Tenn. Ct. App. 2003).

                                               A NALYSIS

    I. D OES D R. V ILVARAJAH’S C ONVICTION A UTHORIZE D ISCIPLINARY A CTION TO BE
                                  T AKEN A GAINST H IM

        Dr. Vilvarajah contends that, under Kentucky law, the offense of facilitation is an
inchoate crime–one which generally leads to another crime–and, consequently, does not
constitute a conviction within the meaning of Tenn. Code Ann. § 63-6-214. In our
consideration of this issue, the Board’s interpretation of Tenn. Code Ann. § 63-6-214, while
not controlling, is to be given appropriate weight and respect. Nashville Mobilphone Co.,
Inc. v. Atkins, 536 S.W.2d 335, 340 (Tenn. 1976).2

       Dr. Vilvarajah was convicted of facilitation of trafficking in a controlled substance;
the criminal facilitation statute, Ky. Rev. Stat. Ann. §506.080, states:

        (1) A person is guilty of criminal facilitation when, acting with knowledge that
        another person is committing or intends to commit a crime, he engages in


        2
           Tenn. Code Ann. § 63-6-214 is part of a broad statutory scheme governing the healing arts
professions. Tenn. Code Ann. § 63-6-101 creates the Board of Medical Examiners and grants the Board the
power, inter alia, to conduct disciplinary hearings. All persons practicing medicine in Tennessee are
required to be licensed by the Board of Medical Examiners (§ 63-6-201(a)), thereby subjecting themselves
to the authority of the Board. Tenn. Code Ann. § 63-6-214 grants specific powers to the Board and sets forth
grounds for the exercise of those powers.

                                                    -3-
       conduct which knowingly provides such person with means or opportunity for
       the commission of the crime and which in fact aids such person to commit the
       crime.

We agree with Dr. Vilvarajah that, under Kentucky law, facilitation is an offense separate
from the offense which is facilitated; however, we disagree that, because a conviction for
facilitation of trafficking in controlled substances requires the commission or intent to
commit the crime of trafficking in order to be complete, the offense is not a drug offense
under Kentucky law. As asserted by the Board, this elevates form over substance. Where,
as here, the “object offense”3 is a offense under the drug laws of the jurisdiction in which the
prosecution is brought, facilitation to commit that crime is a drug offense for purposes of
regulating physicians licensed in Tennessee and the Board did not err in so holding.

        Facilitation is not the crime of complicity4 and is not a lesser-included offense of
trafficking in controlled substances. See Houston v. Commonwealth, 975 S.W.2d 925, 930
(Ky. 1998). By its express terms, Ky. Rev. Stat. Ann. §506.080 requires another crime to be
committed or contemplated in order for the offense of criminal facilitation to be complete.
The fact that the definition and mental state required to sustain a violation of the object


       3
           This term was coined in Houston v. Commonwealth, 975 S.W.2d 925, 930 (Ky. 1998).
       4
           The crime of complicity is defined as follows:

       (1) A person is guilty of an offense committed by another person when, with the intention
       of promoting or facilitating the commission of the offense, he:
                 (a) Solicits, commands, or engages in a conspiracy with such other
                 person to commit the offense; or
                 (b) Aids, counsels, or attempts to aid such person in planning or
                 committing the offense; or
                 (c) Having a legal duty to prevent the commission of the offense, fails
                 to make a proper effort to do so.
         (2) When causing a particular result is an element of an offense, a person who acts with
         the kind of culpability with respect to the result that is sufficient for the commission of
         the offense is guilty of that offense when he:
                 (a) Solicits or engages in a conspiracy with another person to engage in
                 the conduct causing such result; or
                 (b) Aids, counsels, or attempts to aid another person in planning, or
                 engaging in the conduct causing such result; or
                 (c) Having a legal duty to prevent the conduct causing the result, fails
                 to make a proper effort to do so.

                  Ky. Rev. Stat. Ann. § 502.020


                                                    -4-
offense–trafficking–are different from those required to constitute facilitation, however, is
irrelevant to the question of whether conviction of facilitation to trafficking in controlled
substances is a conviction under the drug laws of Kentucky.

       In this case, the object offense was trafficking in controlled substances.5 The Board
had before it the record of the proceedings in Kentucky and determined that, under the
prevailing law and the facts, Dr. Vilvarajah was convicted of an offense proscribed by the
drug laws of Kentucky. He was indicted on three counts of engaging in organized crime, a
class B felony punishable by 10 to 20 years’ imprisonment6 ; one count of assault in the
second degree, a class C felony punishable by 5 to 10 years’ imprisonment7 ; and one count
of wanton endangerment in the first degree, a class D felony punishable by 1 to 5 years’
imprisonment.8 He pled guilty to an amended indictment charging him with facilitation to


        5
            Trafficking in controlled substances is defined at Ky. Rev. Stat. Ann. § 218A.1412 as follows:

        (1) A person is guilty of trafficking in a controlled substance in the first degree when he
        knowingly and unlawfully traffics in: a controlled substance, that is classified in Schedules
        I or II which is a narcotic drug; a controlled substance analogue; lysergic acid diethylamide;
        phencyclidine; a controlled substance that contains any quantity of methamphetamine,
        including its salts, isomers, and salts of isomers; gamma hydroxybutyric acid (GHB),
        including its salts, isomers, salts of isomers, and analogues; or flunitrazepam, including its
        salts, isomers, and salts of isomers.

        6
            The organized crime counts of the indictment charged Dr. Vilvarajah and a co-defendant as
follows:

        That on or about the period from 2005 through the present, the 10th day of November 2008,
        the Defendants committed the offense of Engaging in Organized Crime, a Class B felony,
        to-wit:
        The Defendants, with the purpose of facilitating the activities of a criminal syndicate of five
        (5) or more persons (designated syndicate number One (1) [Two(2), Three (3)] which
        trafficked in controlled substances in Harlan County, Kentucky or with the purpose to
        establish or to maintain said syndicate, provided material aid to said syndicate or any of its
        activities by providing other members of the syndicate with prescriptions for controlled
        substances.

        7
           This count charged Dr. Vilvarajah and his co-defendant with “wantonly caus[ing] severe physical
injury to a newborn child in Harlan County, Kentucky, by the use of a dangerous instrument by prescribing
the mother of said child controlled substances in amounts and/or combinations that damaged the health of
said child.”
        8
            This count charged that Dr. Vilvarajah and his co-defendant as follows:
                                                                                                  (continued...)

                                                     -5-
trafficking in a controlled substance in the first degree, a class A misdemeanor, and was
sentenced to eleven months imprisonment, which was probated. The terms of his probation
included the condition that he not come to Harlan County except for court appearances and
that he not prescribe controlled substances to citizens of Harlan County. In addition, he
forfeited assets in the amount of $500,000.00 which, on his motion, was reduced to a
forfeiture of $250,000.00 and a $250,000.00 contribution to the Harlan County Fiscal Court
“to be used to alleviate drug abuse in Harlan County.” The record is clear that the Kentucky
authorities pursued the case against Dr. Vilvarajah, from indictment to punishment, as a drug
offense under the laws of the state, as well as under the facts.

    II. W AS T HE S UMMARY S USPENSION S UPPORTED BY S UBSTANTIAL AND M ATERIAL
                                      E VIDENCE

      Dr. Vilvarajah also contends that the summary suspension of his license was arbitrary
and capricious and unsupported by the evidence. In essence, he argues that there was no
immediate threat to public health safety and welfare to justify the summary suspension.9 In
reviewing the Board’s suspension of Dr. Vilvarajah’s license we consider only whether the
suspension is warranted in law and fact. Mosley v. Tenn. Dep't. of Commerce & Ins., 167
S.W.3d 308, 321 (Tenn. Ct. App.2004).10


        8
            (...continued)
        [U]nder circumstances manifesting extreme indifference to the value of human life,
        wantonly engaged in conduct which created a substantial danger of death or serious physical
        injury to a newborn child in Harlan County, Kentucky, by prescribing the mother of said
        child, while said child was in utero, controlled substances in amounts and/or combinations
        that endangered the health of said child.
        9
         Dr. Vilvarajah cites reports of eleven physicians who were summarily suspended from January
2004 through January 2009, and argues that “[t]here is nothing in the record before the Board that indicates
any conduct on the part of Dr. Vilvarajah that rises to the level of these eleven (11) cases and would warrant
a summary suspension.”
        10
         The standard of review relative to this issue was set forth in Robertson v. Tennessee Bd. of Soc.
Worker Certification & Licensure, 227 S.W.3d 7 (Tenn. 2007):

        When we review only an agency-imposed remedy, we have noted that “[t]he appropriate
        remedy is peculiarly within the discretion of the [agency].” McClellan v. Bd. of Regents of
        State Univ., 921 S.W.2d 684, 693 (Tenn.1996). As a result, we will only review whether
        the remedy is “unwarranted in law” or “without justification in fact.” Mosley v. Tenn. Dep't.
        of Commerce & Ins., 167 S.W.3d 308, 321 (Tenn.Ct.App.2004) (quoting Butz v. Glover
        Livestock Comm'n Co., 411 U.S. 182, 185-86, 93 S.Ct. 1455, 36 L.Ed.2d 142 (1973)).

                                                                                                 (continued...)

                                                     -6-
       Authority for the summary suspension of his license is contained at Tenn. Code Ann.
§ 4-5-320(c):

       (c) No revocation, suspension, or withdrawal of any license is lawful unless,
       prior to the institution of agency proceedings, the agency gave notice by mail
       to the licensee of facts or conduct that warrant the intended action, and the
       licensee was given an opportunity to show compliance with all lawful
       requirements for the retention of the license. If the agency finds that public
       health, safety, or welfare imperatively requires emergency action, and
       incorporates a finding to that effect in its order, summary suspension of a
       license may be ordered pending proceedings for revocation or other action.
       These proceedings shall be promptly instituted and determined

Tenn. Code Ann. § 4-5-320(c).

       In its order summarily suspending Dr. Vilvarajah, the Board found the following facts:

               The State presented, in support of its application, a certified copy of a
       judgment of conviction entered against Respondent in the Circuit Court of
       Harlan County, Kentucky, copies or certified copies of various related
       documents on file with the clerk of that court. From these documents, the
       Board, through this duly authorized panel, finds that on January 11, 2010,
       Respondent was convicted in the Circuit Court of Harlan County of
       facilitating trafficking in controlled substances in the first degree. Kentucky
       v. Vilvarajah, No. 08-CR-00481-001. First degree controlled substances are
       defined in Kentucky law as Schedule I or II controlled substances. Ky. Rev.
       Stat. Ann. § 218A.1412(1). The conviction was entered as a result of a plea
       agreement.
               The original charges against Respondent included the charge of
       engaging in organized crime by facilitating the activities of a criminal
       syndicate which trafficked in controlled substances from 2005 through
       November 10, 2008. Respondent moved to dismiss for lack of jurisdiction,
       and the Commonwealth responded by filing affidavits of residents of Harlan
       County regarding their visits to the Respondent’s office. Subsequently, the

       10
            (...continued)
Robertson, 227 S.W.3d 7, 13-14 (Tenn. 2007).




                                               -7-
       Commonwealth offered to dismiss all charges except the first organized crime
       count, to reduce that charge to facilitation of trafficking in controlled
       substances, and to reduce the sentence to four months of unsupervised
       probation on condition that defendant plead guilty and agree to the forfeiture
       of Five Hundred Thousand Dollars ($500,000) pursuant to Kentucky drug
       forfeiture laws.
              Respondent accepted the offer, but did not enter a guilty plea. Instead
       he entered an “Alford” or “best interests” plea to the reduced charge. In the
       petition, respondent stated, “I do not admit guilt, but I believe the evidence
       against me strongly indicates guilt and my interests are best served by a guilty
       plea.” (Emphasis added).

Upon those facts, the Board determined, on a preliminary basis, that “the misconduct of [Dr.
Vilvarajah] is so severe that it imperatively requires emergency action to protect the public
health, safety and welfare prior to the initiation of formal disciplinary charges.”

       The record clearly supports the Board’s determination that Dr. Vilvarajah’s privileges
to practice medicine and thereby to prescribe controlled substances should be suspended
pending a further inquiry.

                                      CONCLUSION

       Finding no error, we AFFIRM the judgment of the Chancery Court.




                                                   _________________________________
                                                   RICHARD H. DINKINS, JUDGE




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