Whittle v. State
962 N.W.2d 339
Neb.2021Background
- Dr. Thomas B. Whittle, a Nebraska vascular physician, was charged by the State with (a) practicing in a pattern of negligent or incompetent conduct and (b) practicing outside the acceptable and prevailing standard of care (unprofessional conduct); an administrative hearing followed.
- The Department concluded Whittle over‑diagnosed eight patients and over‑treated seven (Patients A–I sampled), finding many invasive diagnostics and interventions were not medically indicated.
- The Department suspended Whittle’s medical license for 6 months and required competency evaluation and education; the district court conducted a de novo review and affirmed.
- Whittle appealed, asserting: the regulation defining unprofessional conduct (172 Neb. Admin. Code ch. 88 § 010.02(32)) is invalid because it uses an in‑state standard; the agency/district court applied the wrong (local vs. national) standard of care; proceedings reflected religious animus; evidentiary rulings and exclusion of briefs were improper; and his due process rights were violated.
- The Supreme Court held the regulation valid (consistent with enabling statutes and Nebraska locality malpractice rules), found ample evidence that Whittle’s diagnoses/treatments were outside the standard of care, rejected religious‑animus and due‑process claims, and affirmed the 6‑month suspension.
Issues
| Issue | Plaintiff's Argument (Whittle) | Defendant's Argument (State/Dept) | Held |
|---|---|---|---|
| Validity of regulation defining unprofessional conduct ("normal standard of care in the State of Nebraska") | Regulation improperly limits standard to Nebraska / creates a "majoritarian" rule and conflicts with Uniform Credentialing Act | Regulation is within Department’s authority, supplements statute, and aligns with locality concepts in Nebraska malpractice law | Regulation is valid and consistent with enabling statute |
| Proper standard of care (local vs. national) | Whittle belongs to a national school advocating more aggressive interventions; discipline reflects disagreement between schools of thought | Expert and record show Whittle abandoned evidence‑based practice; misconduct violated both Nebraska and national standards | Findings supported: even under national standard, evidence showed over‑diagnosis and over‑treatment outside standard of care |
| Religious animus (Free Exercise) | Comments in State expert’s report about Whittle’s religious materials show impermissible hostility and bias | Remarks were witness’s views, not Department’s action; witness testified impartiality and was cross‑examined | No religious animus by the Department; claim rejected |
| Evidentiary rulings, record expansion, expert bias, due process | District court erred by excluding parties’ briefs; excluded medical literature and expert was biased/competitor; denial of procedural due process | APA limits district court to agency record; briefs cannot expand record; witness credibility issues do not equate to disqualifying bias; Whittle had notice, hearing, and opportunity to present evidence | Exclusion of briefs proper (review on agency record only); no reversible evidentiary error; no due process violation |
Key Cases Cited
- Swicord v. Police Stds. Adv. Council, 958 N.W.2d 388 (standard of review for district court decisions on APA record)
- McManus Enters. v. Nebraska Liquor Control Comm., 303 Neb. 56 (statutory/regulatory interpretation reviewed de novo)
- Mahnke v. State, 276 Neb. 57 (invalidating a regulation that conflicted with statute limiting discipline to a pattern of conduct)
- Bank v. Mickels, 302 Neb. 1009 (locality rule in medical‑malpractice expert testimony under Nebraska law)
- Betterman v. Department of Motor Vehicles, 273 Neb. 178 (agency record definition for de novo review)
- Clarke v. First Nat. Bank of Omaha, 296 Neb. 632 (parties’ briefs may not expand the evidentiary record on appeal)
- Prokop v. Lower Loup NRD, 302 Neb. 10 (procedural due process requirements in administrative proceedings)