Whittle v. State
309 Neb. 695
| Neb. | 2021Background
- The State charged Dr. Thomas B. Whittle with a pattern of negligent practice and unprofessional conduct (over‑diagnosis and over‑treatment) under Neb. Rev. Stat. § 38‑178 and 172 Neb. Admin. Code ch. 88 § 010.02(32).
- A 16‑day administrative hearing reviewed nine sample patients (A–I); State expert Dr. Thomas Webb and other physicians testified that Whittle ordered unnecessary invasive diagnostics and procedures (IVUS, venography, stents, embolizations).
- The Department found by clear and convincing evidence that Whittle over‑diagnosed eight patients and over‑treated seven, and suspended his medical license for six months, ordered competency evaluation, and required remedial education.
- Whittle sought de novo judicial review in Lancaster County District Court; the court affirmed the Department’s findings and sanction.
- On appeal to the Nebraska Supreme Court Whittle argued (inter alia) that the regulation adopting a Nebraska locality standard was invalid, that the wrong standard of care was applied, that proceedings showed religious animus, and that evidentiary rulings and expert bias denied due process.
- The Nebraska Supreme Court affirmed: it upheld the regulation, found the findings supported by competent evidence under the proper standard, rejected animus and reversible evidentiary error claims, and held due process requirements were met.
Issues
| Issue | Plaintiff's Argument (Whittle) | Defendant's Argument (State/Dept.) | Held |
|---|---|---|---|
| Validity of regulation defining unprofessional conduct by reference to "normal standard of care in the State of Nebraska" | Regulation unlawfully narrows standard to Nebraska/local majority practice and conflicts with Uniform Credentialing Act | Dept. authorized to define unprofessional conduct; regulation consistent with enabling statute and locality concepts in other Nebraska law | Regulation valid; not inconsistent with statute and aligns with statutory authority |
| Standard of care applied (local vs. national) and sufficiency of evidence for discipline | A national standard applies and Whittle practices a nationally accepted, more aggressive approach; discipline reflects majoritarian local bias | Evidence shows Whittle abandoned evidence‑based practice; findings supported under local and national testimony | Findings supported by competent evidence; even under national standard discipline would stand |
| Religious animus (Free Exercise) | Expert's written criticism of Whittle's religious branding showed anti‑religious hostility affecting process | Remarks were witness opinions; Dept. remained neutral and allowed cross‑examination; no departmental hostility | No impermissible religious animus; claim fails |
| Admission of appellate briefs into district court record | Briefs submitted in lieu of oral argument should be admitted and transcribed to expand record | Judicial review is limited to the agency record; district court cannot receive extra evidence via briefs | District court properly excluded briefs; record cannot be expanded on de novo review |
| Expert bias/conflict and exclusion of medical literature; due process | Webb and Dept. physicians were biased/competitive; exclusion of pro‑Whittle literature prejudiced defense | Cross‑examination addressed alleged bias; competing experts testified; no offer of proof for excluded literature | No reversible evidentiary error; credibility issues do not require reversal; procedural due process satisfied |
Key Cases Cited
- Swicord v. Police Stds. Adv. Council, 958 N.W.2d 388 (Neb. 2021) (standard of review for district court judicial review of agency under APA)
- McManus Enters. v. Nebraska Liquor Control Comm., 926 N.W.2d 660 (Neb. 2019) (de novo review on questions of statutory and regulatory interpretation)
- Mahnke v. State, 751 N.W.2d 635 (Neb. 2008) (invalidating a regulation that conflicted with statute by permitting discipline for a single act of ordinary negligence)
- Betterman v. Department of Motor Vehicles, 728 N.W.2d 570 (Neb. 2007) (agency record on de novo review consists of transcripts/bill of exceptions and judicially noticed facts)
- Clarke v. First Nat. Bank of Omaha, 895 N.W.2d 284 (Neb. 2017) (a party’s brief may not expand the evidentiary record on appeal)
- Prokop v. Lower Loup NRD, 921 N.W.2d 375 (Neb. 2019) (procedural due process requirements in administrative proceedings)
- Bank v. Mickels, 926 N.W.2d 97 (Neb. 2019) (malpractice locality rule requires expert familiarity with customary practice in same or similar locality)