Whittle v. State
309 Neb. 695
| Neb. | 2021Background
- The State filed disciplinary charges against Dr. Thomas B. Whittle for a pattern of negligent/incompetent practice and unprofessional conduct based on venous-medicine treatment of multiple patients; alleged overdiagnosis and overtreatment of Patients A–I.
- A 16-day administrative hearing produced expert testimony (State expert Thomas Webb and other local physicians; Whittle presented his own experts). The Department found clear-and-convincing evidence of regular overdiagnosis and excessive interventions and ordered a 6-month license suspension plus evaluation and education.
- The Department concluded Whittle failed to follow evidence-based practice, proceeded to invasive diagnostics and procedures without adequate conservative trials or objective findings, and caused patient harm.
- Whittle sought de novo judicial review in Lancaster County District Court; the court affirmed the Department’s legal conclusions and the 6-month suspension.
- On appeal to the Nebraska Supreme Court, Whittle argued the regulation defining unprofessional conduct was invalid (locality-only standard), that the wrong standard of care was applied, that proceedings reflected religious animus, and that evidentiary rulings and due-process defects require reversal. The Supreme Court affirmed.
Issues
| Issue | Whittle's Argument | State's Argument | Held |
|---|---|---|---|
| Validity of 172 Neb. Admin. Code ch. 88 §010.02(32) ("normal standard of care in the State of Nebraska") | Regulation unlawfully substitutes a Nebraska-majority/local standard for a national standard and conflicts with the Uniform Credentialing Act | Statute (§38-179) authorizes Dept. to define unprofessional conduct; locality-based standard is consistent with statute and Nebraska malpractice locality rule | Regulation is valid and consistent with enabling statutes and malpractice locality principles |
| Whether evidence and standard of care support discipline | Whittle claims a national, more interventionist standard would justify his practice; evidence insufficient to show pattern outside acceptable practice | Department and expert testimony established overdiagnosis/overtreatment outside acceptable practice; findings supported by competent evidence | Findings supported by record; discipline appropriate; result would stand even under national-standard testimony presented |
| Free exercise / religious animus (Masterpiece Cakeshop claim) | Remarks by State expert and references to Whittle’s religious language show hostility and biased proceedings | Isolated comment by an expert; Department remained neutral and permitted full cross-examination; no agency hostility shown | No impermissible religious animus; Masterpiece Cakeshop distinguishes (no neutral-decision evidence) |
| Evidentiary rulings, admission of appellate briefs, witness bias, and procedural due process | District court erred by refusing to admit parties’ briefs into the de novo record; excluded medical literature and allowed biased witnesses, denying due process | Judicial review under the APA is limited to the agency record (transcripts, bill of exceptions, judicially noticed facts); briefs cannot expand the record; no shown bias or conflict causing denial of fair hearing | Court properly excluded briefs; no reversible evidentiary error; procedural due process requirements satisfied |
Key Cases Cited
- Swicord v. Police Stds. Adv. Council, 958 N.W.2d 388 (Neb. 2021) (standard for reviewing district-court judgment on Administrative Procedure Act record)
- McManus Enters. v. Nebraska Liquor Control Comm., 926 N.W.2d 660 (Neb. 2019) (statutory and regulatory interpretation reviewed de novo)
- Mahnke v. State, 751 N.W.2d 635 (Neb. 2008) (invalidating a regulation insofar as it allowed discipline for a single act of ordinary negligence)
- Betterman v. Department of Motor Vehicles, 728 N.W.2d 570 (Neb. 2007) (in de novo review on the record, the record consists of transcripts, bill of exceptions, and facts subject to judicial notice)
- Masterpiece Cakeshop v. Colorado Civil Rights Comm'n, 138 S. Ct. 1719 (2018) (governmental decisionmaking must not show impermissible hostility to religion)
- Prokop v. Lower Loup NRD, 921 N.W.2d 375 (Neb. 2019) (procedural due process requirements for administrative proceedings)
- Clarke v. First Nat. Bank of Omaha, 895 N.W.2d 284 (Neb. 2017) (parties’ briefs cannot be used to expand the evidentiary record on appeal)