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Hollahan v. Tennessee Department of Health

Court of Appeals of Tennessee, Nashville

December 12, 2017

CATHERINE J. HOLLAHAN
v.
TENNESSEE DEPARTMENT OF HEALTH

         Session: November 9, 2017

         Appeal from the Chancery Court for Davidson County No. 15-1168-IV Russell T. Perkins, Chancellor

         An advanced practice nurse worked at three different testosterone clinics in the Memphis area and was charged with violating portions of the Nursing Practice Act and the rules and regulations governing nurses. The Tennessee Board of Nursing (the "Board") held a hearing and determined that the evidence supported many of the alleged offenses. The Board revoked the nurse's certificate to practice as an advanced practice nurse, revoked the nurse's license to practice as a registered nurse in Tennessee and the multistate privilege to practice in any other party state, and assessed civil penalties against her that totaled $7, 200. The nurse sought judicial review of the Board's decision, and the trial court affirmed the Board's decision. The nurse then appealed the Board's decision to this court. Concluding that substantial and material facts support the Board's findings, we affirm the Board's decision.

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

          William C. Sessions, Memphis, Tennessee, for the appellant, Catherine J. Hollahan.

          Herbert H. Slatery, III, Attorney General and Reporter, and Sara Elizabeth Sedgwick, Senior Counsel, Nashville, Tennessee, for the appellee, Tennessee Department of Health.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE

         I. Factual and Procedural Background

         The Board certified Catherine J. Hollahan as a registered nurse in 1993 and as an advanced practice nurse[1] in 2006. Ms. Hollahan worked as an advanced practice nurse in testosterone clinics beginning in 2008. She worked at Ageless Men's Health

         Testosterone Replacement Clinic ("Ageless") from May 2008 until April 2011, she worked at Body for Life from May 2011 until September 2013, and she was a part owner of and worked at New Life Testosterone Clinic ("New Life") from November 2013 until June 2014. On January 16, 2015, the Board filed a Notice of Hearing and Charges and Memorandum for Assessment of Civil Penalties ("the Notice") against Ms. Hollahan. The charges included practicing without filing a notice and formulary with the Board as required by Tenn. Code Ann. § 63-7-123(b)(1); consuming alcohol and exhibiting impaired behavior during the workday; injecting herself with testosterone without authorization; prescribing medication outside her scope and failing to include these prescriptions in the patients' charts; engaging in a sexual relationship with a patient while employed at Body for Life; fraudulently billing insurance companies for services she did not provide; and providing incompetent care to patients by failing to assess or order lab work before prescribing medications.

         The Board held a hearing on August 5, 2016, during which several individuals testified. Following the hearing and the Board members' deliberations, the Board announced its decision and issued a Final Order. The Board made the following Findings of Fact:

1. Respondent has been at all times pertinent hereto certified by the Board as an advanced practice nurse in the State of Tennessee, having been granted certificate number 12232 on September 6, 2006, which currently has an expiration date of November 30, 2016. Respondent's advanced practice nurse certificate is active and valid in the State of Tennessee only.
2. Respondent has been at all times pertinent hereto licensed by the Board as a registered nurse in the State of Tennessee, having been granted license number 96704 on September 22, 1993, which currently has an expiration date of November 30, 2016. Respondent's registered nurse license is active and bears a multistate privilege to practice nursing in states which have entered into the Interstate Nurse Licensure Compact.
3. Between May 2008 and April 2011, Respondent was employed as a nurse practitioner at Ageless Men's Health Testosterone Replacement Clinic ("Ageless Men's Health") in Shelby County, Tennessee. Respondent was observed consuming alcohol inside Ageless Men's Health while treating patients on numerous occasions and exhibiting impaired behavior.
4. Respondent, between May 2011 and September 2013, was employed as a nurse practitioner by Body for Life, a men's health clinic in Bartlett, Tennessee. During her tenure at Body for Life, Respondent was observed exhibiting impaired behavior while at work and smelling of alcohol.
5. In 2012, patient W.A. came to Body for Life and was treated by Respondent. Respondent diagnosed W.A. with depression and prescribed her Xanax, Ambien, and antidepressants, which was outside Respondent's scope of employment. Respondent did not chart the visit or complete an assessment of the patient.
6. Respondent was observed injecting herself with testosterone belonging to Body for Life without authorization.
7. Respondent engaged in a sexual relationship with patient J.R. while employed at Body for Life.
8. Between November 2013 and June 3, 2014, Respondent worked as a nurse practitioner and was part owner of New Life Testosterone Clinic ("New Life") in Arlington, Tennessee. During her tenure there, Respondent would frequently leave for lunch and retire to her truck with instructions to page her if a patient arrived to be treated.
9. Respondent was frequently observed exhibiting impaired behavior and smelling of alcohol while treating patients at New Life.
10. Frequently, Respondent would tell the medical assistant what to prescribe the patient even though Respondent never assessed or treated the patient.
11. Respondent did not provide competent care to several patients while practicing as an advanced practice nurse at New Life including failure to assess patients, failure to order lab work, and treating patients without a formulary.
12. Respondent has never once filed a notice and formulary with the Tennessee Board of Nursing pertaining to any of her employment as an advanced practice nurse.
The Board then made the following Conclusions of Law:[2]
The Board, having jurisdiction over this matter, finds the facts in this Order are sufficient to establish that the Respondent has violated the following provisions of Tenn. Code Ann. § 63-7-101, et seq., and the Official Compilation Rules and Regulations of the State of Tennessee for the Board of Nursing (Tenn. Comp. R. & Regs.) 1000-1-.01, et seq.
13. The facts enumerated in paragraphs three (3), four (4), and nine (9) constitute a violation of Tenn. Code Ann. § 63-7-115(a)(1):
(C) Is unfit or incompetent by reason of negligence, habits or other cause.
(F) Is guilty of unprofessional conduct.
14. The facts enumerated in paragraphs three (3), four (4), and [nine (9)] constitute a violation of Tenn. Comp. R. & Regs. 1000-1-.13(1), which defines "unprofessional conduct, unfitness or incompetency by reason of negligence, habits or other cause" as including, but not limited to:
(f) The use of any intoxicating beverage or the illegal use of any narcotic or dangerous drug while on duty in any health care facility, school, institution, or other work place location;
(g)Being under the influence of alcoholic beverages, or under the influence of drugs which impair judgment while on duty in any health care facility, school, institution or other work place location.
15. The facts enumerated in paragraphs five (5) and [seven (7)] constitute a violation of Tenn. Code Ann. § 63-7-115(a)(1):
(C) Is unfit or incompetent by reason of negligence, habits or other cause.
(F) Is guilty of unprofessional conduct.
16. The facts enumerated in paragraphs [five (5), seven (7), eight (8), ten (10), and eleven (11)] constitute a violation of Tenn. [Comp.] R. & Regs. 1000-1-.13(1), which defines "unprofessional conduct, unfitness or incompetency by reason of negligence, habits or other cause" as including, but not limited to:
(b) Failure to maintain a record for each patient which accurately reflects the nursing problems and interventions for the patient and/or failure to maintain a record for each patient which accurately reflects the name and title of the nurse providing care;
(t) Over-prescribing, or prescribing in a manner inconsistent with Rules 1000-04-.08 and 1000-04-.09;
(u) Practicing professional nursing in a manner inconsistent with T.C.A. § 63-7-103.[3]
(w) Engaging in acts of dishonesty which relate to the practice of nursing.
17. The facts enumerated in paragraph[] [six (6)] constitute a violation of Tenn. Comp. R. & Regs. 1000-1-.13(1), which defines "unprofessional conduct, unfitness or incompetency by reason of negligence, habits or other cause" as including, but not limited to:
(e) Unauthorized use or removal of narcotics, drugs, supplies, or equipment from any health care facility, school, institution or other work place location.
(w) Engaging in acts of dishonesty which relate to the practice of nursing.
18. Respondent's acts and conduct enumerated in paragraph [twelve (12)] constitute violations of Tenn. Code Ann. § 63-7-115(a)(1):
(G) Has violated or attempted to violate, directly or indirectly, or assisted in or abetted the violation of, or conspired to violate, any provision of this chapter or any lawful order of the board issued pursuant thereto.
19.The facts stipulated in paragraph [twelve (12)] constitute a violation of Tenn. Code Ann. § 63-7-123(b)(1):
A nurse who has been issued a certificate of fitness as a nurse practitioner pursuant to § 63-7-207 and this section shall file a notice with the board, containing the name of the nurse practitioner, the name of the licensed physician having supervision, control and responsibility for prescriptive services rendered by the nurse practitioner and a copy of the formulary describing the categories of legend drugs to be prescribed and/or issued by the nurse practitioner. The nurse practitioner shall be responsible for updating this information.

         The Board then ordered that Ms. Hollahan's certificate to practice as an advanced practice nurse and her license to practice as a registered nurse in Tennessee, as well as the multistate privilege to practice in any other party state, "shall be and are hereby revoked." The Board assessed penalties against Ms. Hollahan that totaled $7, 200. The penalties included the following: three Type A civil penalties in the amount of $1, 000 each, with each penalty representing the three testosterone facilities where Ms. Hollahan worked; six Type C civil penalties in the amount of $200 each for the first six months of employment in 2008 when Ms. Hollahan had no notice or formulary on file as legally required; and thirty additional Type C civil penalties in the amount of $100 each for the thirty subsequent months when Ms. Hollahan had no notice or formulary on file. Finally, the Board assessed the costs of the hearing against Ms. Hollahan in an amount not to exceed $20, 000, which was payable within twenty-four months from the date when the Assessment of Costs was issued.

         Ms. Hollahan appealed the Board's Final Order to the chancery court, which affirmed the Board's decision and choice of sanctions.[4] Ms. Hollahan then appealed the Board's decision to this court. Ms. Hollahan argues that the Board erred by (1) adding a charge during its deliberations without providing notice to Ms. Hollahan or providing her with an opportunity to prepare a defense to the new charge and (2) reaching conclusions of law that were not supported by substantial and material evidence.

         II. Analysis

         A. Standard of Review

         Judicial review of agency decisions is authorized by the Uniform Administrative Procedures Act, Tenn. Code Ann. §§ 4-5-101‒502 (the "UAPA"). Under the UAPA, a reviewing court does not sit as a trial court and does not consider the record de novo. See Wayne Cnty. v. Tenn. Solid Waste Disposal Control Bd., 756 S.W.2d 274, 279 (Tenn. Ct. App. 1988). The court's review is limited to the administrative record, Tenn. Code Ann. § 4-5-322(g), and the court defers to the findings by the administrative agency acting within its area of expertise, StarLink Logistics Inc. v. ACC, LLC, 494 S.W.3d 659, 668-69 (Tenn. 2016); Wayne Cnty., 756 S.W.2d at 279. As our Supreme Court has explained, reviewing courts "do not second-guess the agency as to the weight of the evidence . . . even if the evidence could support a different result." StarLink Logistics, 494 S.W.3d at 669 (citations omitted).

         The UAPA permits the reviewing court to reverse or modify the administrative decision if the petitioner's rights have been prejudiced because the decision, findings, inferences, or conclusions 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 that is both substantial and material in the light of the entire record.

Tenn. Code Ann. § 4-5-322(h). The StarLink Logistics Court addressed the "arbitrary or capricious" language of the statute thusly:

A decision is arbitrary or capricious if it "is not based on any course of reasoning or exercise of judgment, or . . . disregards the facts or circumstances of the case without some basis that would lead a reasonable person to reach the same conclusion." "If there is room for two opinions, a decision is not arbitrary or capricious if it is made honestly and upon due consideration, even though [a reviewing court] think[s] a different conclusion might have been reached." The "arbitrary or capricious" standard is a limited scope of review, and a court will not overturn a decision of an agency acting within its area of expertise and within the exercise of its judgment solely because the court disagrees with an agency's ultimate conclusion.

Starlink Logistics, 494 S.W.3d at 669-70 (citations omitted).

         The UAPA provides that "[i]n 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." Tenn. Code Ann. § 4-5-322(h)(5)(B). The statute does not explain what evidence should be considered "substantial and material, " but the courts have determined that this standard is "less than a preponderance of the evidence" but "more than a 'scintilla or glimmer.'" StarLink Logistics, 494 S.W.3d at 669 (citing Wayne Cnty., 756 S.W.2d at 280); see also Pace v. Garbage Disposal Dist., 390 S.W.2d 461, 463 (Tenn. Ct. App. 1965). Substantial and material evidence has been described as '"such relevant evidence as a reasonable mind might accept to support a rational conclusion and such as to furnish a reasonably sound basis for the action under consideration."' Clay Cnty. Manor, Inc. v. State Dep't of Health & Env't, 849 S.W.2d 755, 759 (Tenn. 1993) (quoting S. Ry. Co. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn.1984)). "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(i).

          B. Removal and Self-Injection of Testosterone

         In its Notice, the Board charged Ms. Hollahan with removing testosterone from Body for Life without authorization and injecting herself with it. The Board asserted this conduct violated Tenn. Comp. R. & Regs. 1000-01-.13(1), which states:

(1) Unprofessional conduct, unfitness, or incompetency by reasons of negligence, habits or other causes, as those terms are used in the statute, is defined as, but not limited to, the following:
. . . .
(e) Unauthorized use or removal of narcotics, drugs, supplies, or equipment from any health care facility, school, institution or other work place location;
. . . .
(w) Engaging in acts of dishonesty which relate to the practice of nursing.

         During the hearing, the Board questioned Samantha Nix about Ms. Hollahan's use of testosterone at Body for Life. Ms. Nix was a medical assistant and office manager at Body for Life during a portion of the time when Ms. Hollahan worked there.

Q: Did you ever observe Ms. Hollahan using any medical products or medications while at Body for Life?
A: Yes, I did.
Q: Can you tell us about those incidents?
A: She used testosterone; she self-injected herself.
Q: Did you personally witness her injecting herself?
A: Yes, I did.

Ms. Hollahan admitted injecting herself with testosterone. She testified that one of the owners of Body for Life, Steve Tormina, authorized her to use testosterone and that no other owner ever withdrew that authorization.[5] Ms. Hollahan then testified that the other owner, Anthony Terhune, knew she was taking testosterone and that he never told her to stop taking it. However, Mr. Terhune provided an affidavit dated July 21, 2015, contradicting Ms. Hollahan's testimony. Mr. Terhune swore under oath as follows:

3. I did not give permission, verbal or otherwise, for Catherine Hollahan to take testosterone or any other medical product belonging to the clinic for her own personal use.
4. I did not give permission, verbal or otherwise, to Catherine Hollahan to inject herself with testosterone belonging to the clinic for any purpose.
5. I have no recollection of a conversation related to her need for testosterone due to low energy or for ...

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