Whittle v. State , 309 Neb. 695 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/16/2021 08:09 AM CDT
- 695 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695Thomas B. Whittle, M.D., appellant, v.
State of Nebraska Department of Health
and Human Services, Regulation and
Licensure, and State of Nebraska ex
rel. Douglas Peterson, Attorney
General, appellees.
___ N.W.2d ___
Filed July 16, 2021. No. S-20-575.
1. Administrative Law: Judgments: Appeal and Error. A judgment or
final order rendered by a district court in a judicial review under the
Administrative Procedure Act, § 84-901 et seq. (Reissue 2014), may be
reversed, vacated, or modified by an appellate court for errors appearing
on the record.
2. ____: ____: ____. When reviewing an order of the district court
under the Administrative Procedure Act for errors appearing on the
record, the inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capricious, nor
unreasonable.
3. Administrative Law: Judgments: Statutes: Appeal and Error. To the
extent that the meaning and interpretation of statutes and regulations
are involved, questions of law are presented which an appellate court
decides independently of the decision made by the court below.
4. Administrative Law. To be valid, a rule or regulation must be consist­
ent with the statute under which the rule or regulation is promulgated.
5. Malpractice: Physicians and Surgeons: Expert Witnesses. Neb.
Rev. Stat. § 44-2810 (Reissue 2010) of the Nebraska Hospital-Medical
Liability Act requires an expert witness on medical malpractice to be
familiar with the customary practice among medical professionals in the
same or similar locality under like circumstances.
6. Administrative Law: Records: Rules of Evidence: Judicial Notice:
Appeal and Error. In a de novo review on the record of an agency, the
- 696 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695record consists of the transcripts and bill of exceptions of the proceed-
ings before the agency and facts capable of being judicially noticed
pursuant to Neb. Evid. R. 201.
7. Records: Appeal and Error. A party’s brief may not expand the eviden-
tiary record on appeal.
8. Administrative Law: Due Process: Notice: Evidence. Procedural due
process in an administrative proceeding requires notice, identification
of the accuser, factual basis for the accusation, reasonable time and
opportunity to present evidence concerning the accusation, and a hearing
before an impartial board.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
James A. Snowden and Elizabeth Ryan Cano, of Wolfe,
Snowden, Hurd, Ahl, Sitzmann, Tannehill & Hahn, L.L.P., for
appellant.
Douglas J. Peterson, Attorney General, Mindy L. Lester, and
Milissa Johnson-Wiles for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
The State brought disciplinary charges against Thomas B.
Whittle, M.D., alleging that he practiced medicine in a pat-
tern of incompetence and negligence and that he commit-
ted acts of unprofessional conduct. Following a hearing, the
chief medical officer of the Division of Public Health for the
Department of Health and Human Services (the Department)
suspended Whittle’s license to practice medicine for 6 months.
Whittle sought judicial review. The district court for Lancaster
County, on de novo review, found that Whittle had over diag-
nosed and over treated patients and otherwise engaged in a
pattern of incompetent or negligent conduct and practiced
outside the standard of care. It found that the conclusions of
- 697 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695law reached by the Department were correct and affirmed the
sanction. Whittle appeals. He asserts that the regulation under
which he was found to have engaged in unprofessional conduct
is invalid, and he further asserts that the agency and the district
court applied an incorrect standard of care, that the proceed-
ings were interjected with religious animus, that evidentiary
rulings at both the administrative level and the district court
amounted to reversible error, and that he was denied due proc­
ess. We determine that none of Whittle’s claims have merit
and, accordingly, affirm.
II. STATEMENT OF FACTS
Whittle is a physician who practices vascular medicine,
including surgery, in Lincoln, Lancaster County, Nebraska. He
also operated a venous medicine practice in Omaha, Nebraska.
1. Procedural Background
The “Petition for Disciplinary Action” filed by the State
against Whittle on July 3, 2017, set forth two causes of action
for discipline relevant to this appeal: (1) the practice of the
profession in a pattern of negligent conduct, in violation of
Neb. Rev. Stat. § 38-178(6)(d) (Reissue 2016), and (2) the
practice of the profession outside the acceptable and prevail-
ing standard of care (unprofessional conduct), in violation of
§ 38-178(23), Neb. Rev. Stat. § 38-179(15) (Reissue 2016),
and 172 Neb. Admin. Code, ch. 88, § 010.02(32) (2013). The
State also alleged that Whittle failed to keep and maintain
adequate records.
Whittle filed a motion to dismiss, a motion to disqualify,
and a motion to strike. The administrative order found that the
motions, at best, pertained to the credibility of witnesses, not
admissibility, and that Whittle’s arguments did not support dis-
missal of the case or exclusion of evidence.
A 16-day administrative hearing was held between May
2018 and February 2019. One of Whittle’s former patients
testified. The State’s designated expert, Thomas Webb, a
board-­certified vascular surgeon, testified that he reviewed
- 698 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695the medical records of a sampling of Whittle’s patients, which
we will refer to as “Patients A through I,” and provided an
expert opinion that Whittle was outside the standard of care
in their treatment. Webb is the director of vascular surgery
for Cardiac Surgery Associates/Franciscan, and prior to mov-
ing to Indiana, he practiced vascular medicine in Nebraska
as the director of vascular surgery at Bergan Mercy Hospital
from 2000 to 2014. Stephen Torpy, Scott Wattenhoffer, and
Timothy Baxter, Nebraska-area physicians who provided care
to patients after they had been treated by Whittle, also testi-
fied at the hearing. Whittle and his expert witnesses, Patricia
Thorpe and David Gillespie, who are physicians, testified on
Whittle’s behalf. Thorpe and Gillespie testified generally that
no procedure performed by Whittle was outside the standard
of care, although in some cases, they would have treated
patients differently.
Following the hearing, the Department concluded that the
State had proved that Whittle had committed a pattern of
incompetent or negligent conduct and departed from the stan-
dard of care by (1) over diagnosing eight patients (Patients
A through H) and (2) over treating seven patients (Patients A
through C, Patients E through G, and Patient I). It found that
the State had not carried its burden to show that Whittle failed
to keep and maintain adequate records. The Department ordered
that Whittle’s license to practice medicine be suspended for 6
months; required him to complete an evaluation to assess his
competency to treat patients with venous disease; and required
him to attend an approved course on “over-diagnosis, over-
treatment and evidence-based medical practice.”
In its order, the Department found that the evidence “sup-
ports a finding by clear and convincing evidence that [Whittle]
regularly over-diagnosed patients with venous disease without
reference to objective symptoms, physical examinations, or
diagnostic tests. In addition, [Whittle] maintained a practice in
which he excessively widened disease definitions through use
of ‘working diagnoses’ and flawed methodology.” The order
- 699 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695also concluded that Whittle had over treated Patients A, E,
and G because he failed to order adequate trials of conserva-
tive therapy.
Whittle sought review of his discipline in the district court
under the Administrative Procedure Act. See Neb. Rev. Stat.
§ 84-901 et seq. (Reissue 2014). Whittle offered briefs into
evidence, since they had been submitted in lieu of argument,
but the district court refused to admit the briefs. Turning to
the substance of the appeal, the district court determined that
Whittle received due process by the Department and that the
witnesses for the State did not have economic or professional
conflicts of interest, an appearance of bias, or religious ani-
mus. It found that evidentiary errors, if any, were harmless.
Following a de novo review, the district court found that the
legal conclusions reached by the Department were correct, that
discipline was appropriate, and that suspension of Whittle’s
credential to practice medicine for a period of 6 months was an
appropriate sanction.
2. Medical Definitions
The administrative order set forth the following definitions
of medical terminology, which are helpful for understanding
the charges in this case:
•  CEAP score is a classification tool used in vascular medicine
that assists a physician in objectively describing the pathol-
ogy and severity of a patient’s venous disease. “C” stands for
clinical examination, “E” for etiology, “A” for assessment,
and “P” for pathology. The basic CEAP score ranges from
0 to 6, with 0 being no venous disease and 6 being the most
severe venous disease.
•  Chronic venous insufficiency is a condition that occurs when
the venous wall and/or valves are not working effectively,
making it difficult for blood to return to the heart from the
lungs. Commonly, venous insufficiency is caused by faulty
valves in the veins, which results in reflux of blood in
the veins.
- 700 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695•  Vein coil is a device that is inserted into a vein that causes
clotting and seals faulty veins.
•  Common iliac veins are veins that connect to the external
iliac veins and internal iliac veins. They are located in the
abdomen and drain blood from the pelvis and lower limbs.
•  Iliocaval confluence is the junction between the common iliac
veins and the inferior vena cava.
•  Intravascular ultrasound (IVUS) is a surgical diagnostic tech-
nique in which an ultrasound device attached to a catheter
is inserted into a blood vessel for diagnostic and treatment
purposes and is used for, among other purposes, placement of
stents, coils, and plugs.
•  Jailing refers to iliac vein occlusion associated with exten-
sion of a stent into the iliocaval confluence that prevents
future access into the vein during reintervention or throm-
bosis (formation of blood clot) of the right-sided vein (right
common iliac vein). Jailing occurs in approximately 1 percent
of patients.
•  May-Thurner syndrome is a venous disease related to the
compression of the left common iliac vein caused by external
compression by the right common iliac artery, which results
in symptoms in the left leg. It is also referred to as “iliac vein
compression.”
•  Pelvic congestion syndrome is pain and other symptoms
caused by dilation of pelvic veins. Most patients with pelvic
congestion have fullness or heaviness in the pelvis and achi-
ness while sitting or standing.
•  Perforators are veins connecting superficial veins and
deep veins.
•  Vein stent is a metal mesh tube that is inserted into a vein and
expands against blocked or narrowed vein walls and acts to
keep the vein open.
•  Transvaginal ultrasound is a surgical diagnostic technique
in which an ultrasound device is inserted in a patient’s
vagina to image the internal aspects of the pelvis, including a
patient’s veins.
- 701 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695•  Venography is a diagnostic technique which uses x rays and
contrast material injected into a vein to show blood flow and
potential reflux.
3. Whittle’s Treatment
Facts related to Patients A through I are set forth below:
(a) Patient A
In March 2016, Patient A, a 41-year-old woman, presented
to Whittle with complaints of varicose veins; pain in her right
hip, buttock, and leg; and aching and cramping in her calf. She
had previously used compression stockings for a short period
of time in 2001, but had not used them since.
On physical examination, Whittle observed varicose veins
in the left leg and spider veins. He did not find edema. In the
right leg, Whittle observed pigmentation, shiny atrophic skin,
large ropy varicose veins in the calf, and swelling extending up
to the midcalf. He did not document inflammation or swelling
of either leg. A noninvasive ultrasound examination known as a
duplex scan was performed on both legs. The scan of the right
leg showed severe reflux in the great saphenous vein, which
runs inside the surface of the leg from the ankle to the groin;
the examination found no significant reflux in the right small
saphenous vein, which runs from the ankle to the calf, and
found ropy varicose veins in the calf. The scan showed that the
left leg had mild reflux throughout the left saphenous vein, but
no reflux in the left anterior accessory vein (a vein that con-
nects to the great saphenous vein) or in the small saphenous
veins. Whittle concluded that Patient A had a CEAP score of
4 for her right leg and a CEAP score of 1 in her left leg. The
CEAP score of 1 indicated that there was not inflammation
in the left leg. Whittle diagnosed Patient A with secondary
lymphedema, which is fluid buildup due to a secondary cause;
chronic venous hypertension with inflammation involving both
sides; vein compression; lower limb vessel anomaly; and vari-
cose veins of the lower extremity with inflammation in the
- 702 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695right extremity. Whittle recommended a transvaginal ultra-
sound to assess pelvic vein pathology.
Five days later, Whittle conducted a transvaginal ultrasound
and venography on Patient A. The procedure revealed internal
iliac veins, which Whittle described as severely enlarged, and
severely enlarged ropy pelvic varicosities, which were worse
on the left side. He noted a possible fibroid in the uterus and
a follicular cyst in the right ovary. Based on the findings of
the transvaginal ultrasound, Whittle diagnosed Patient A with
lower limb vessel anomaly, varicose veins of the lower right
extremity with inflammation, vein compression, and chronic
venous hypertension with inflammation involving both sides.
The medical record noted that Whittle recommended a veno-
gram and IVUS to investigate and treat and that stents, plugs,
and/or coils would be used as needed to treat the problems
found during the venogram and IVUS. Whittle also recom-
mended that Patient A continue wearing medical grade com-
pression stockings.
In April 2016, Whittle conducted a venogram and IVUS.
He (1) coil embolized Patient A’s right and left ovarian vein to
block blood vessels, (2) inserted “double barrel” stents in each
of the common iliac veins, and (3) placed plugs in the main
trunk of the internal iliac vein bilaterally.
The State’s expert witness, Webb, testified that there was
no basis for the diagnosis of chronic venous hypertension in
both legs. In its order, the Department found that the diagno-
sis of “venous hypertension with inflammation involving both
sides” was not supported by medical evidence and was not cor-
rect. It found that the April 2016 treatment failed to meet the
applicable standard of care because Whittle failed to require
an adequate trial of conservative therapy with compression
stockings or other methods prior to proceeding with invasive
diagnostic tools and surgery. Patient A had a CEAP score of
1 on her left side, which meant she had minimal symptoms
or findings. Although she had a higher CEAP score on her
right side, the right iliac vein compression was less than 30
- 703 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695percent. There was no indication of compression or occlusion
in the area where the right and left iliac veins connect. The
Department found that the applicable standard of care requires
that no stenting be placed under such circumstances and that
Whittle failed to meet the applicable standard of care.
The Department also found that the embolizations and place-
ment of plugs by Whittle in Patient A’s ovarian veins and inter-
nal iliac vein failed to meet the applicable standard of care,
which requires that, prior to treating suspected venous insuf-
ficiency in the pelvis, a physician must identify a connection
with the internal iliac veins on the right or left venous system.
With respect to identifying the tributaries to internal iliac veins,
Webb explained:
[T]hink of the internal iliac veins as a main trunk. And
you have . . . branches and twigs, and these branches or
twigs are in the pelvis, and one of these branches goes . . .
to the leg over here.
So if you don’t obliterate that branch and you block
this, have you helped that leg? Absolutely not. Because
you still have inflow from the artery into the venous
network.
Unless you’ve taken care of that branch that you’ve
identified to the leg, you can still reflux to that leg.
On May 10, 2016, 11 days after Whittle inserted stents, embo-
lizations, and plugs, Patient A developed an intraabdominal
bleed for which she required hospitalization.
Baxter, Patient A’s subsequent treating vascular surgeon,
testified that the internal abdominal bleeding was caused by
either the coils or the plugs inserted by Whittle. He testified
that Whittle’s explanation for the bleeding was not plausible.
Gillespie testified that it “would be hard to justify” stent place-
ment on Patient A’s left leg.
(b) Patient B
Patient B, a 36-year-old woman, presented to Whittle in
October 2015 with leg pain and varicose veins. She had a
- 704 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 69516-year history of visible varicose veins and symptoms that
included aching, swelling, tired, and heavy legs, as well as
soreness to the touch in her legs. She denied having pelvic
symptoms. In 2009, an endovenous ablation (cauterization and
closure) of her right and left greater saphenous veins was per-
formed. Conservative efforts had been attempted at some time
in the past.
A duplex ultrasound of both lower extremities showed reflux
in Patient B’s greater saphenous vein in her right calf and
reflux in her left greater saphenous vein and left anterior
accessory saphenous vein. Whittle did not study the pelvic
veins. Whittle diagnosed Patient B with vein compression,
lower limb vessel anomaly, chronic venous hypertension with
inflammation involving both sides, and varicose veins of lower
limb with inflammation. Whittle noted in Patient B’s medical
record that she was experiencing multiple severe symptoms of
venous insufficiency and recommended a venogram and IVUS
to investigate and treat areas, including the pelvic region. He
also gave Patient B a prescription for compression stockings
“to begin conservative treatment.”
In April 2016, Patient B reported increased soreness in
her legs despite conservative efforts. She denied having pel-
vic symptoms. A venography with a bilateral groin approach
was scheduled. Whittle performed a venogram and IVUS of
Patient B’s gonadal veins and placed bilateral common iliac
vein stents despite the absence of iliocaval confluence involve-
ment and the absence of a significant right common iliac vein
compression.
The Department found that Whittle’s initial diagnoses of
vein compression and lower limb vessel anomaly were not
supported by physical findings or ultrasound findings. It found
the decision to perform IVUS and venography on Patient B’s
pelvic region failed to meet the applicable standard of care
because (1) her pelvis had not been imaged and there had been
no evidence of atypical veins in the groin, thigh, buttocks, or
genital area and (2) Patient B reported no symptoms in her
- 705 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695pelvic area. It found that placement of stents failed to meet the
applicable standard of care because there were no pelvic col-
laterals and tributaries refluxing into the leg to support a diag-
nosis of pelvic insufficiency or pelvic congestion syndrome.
It found that Whittle’s theory that a pelvic venous pathology
existed was not supported by evidence-based medical practice
or medical literature and that there was no medical indication
for placement of a stent in the left common iliac vein because
no pelvic collaterals or tributaries were identified on venog­
raphy to support a diagnosis of pelvic venous insufficiency
such as would cause Patient B’s leg complaints.
Patient B did not improve following the treatment with
Whittle, and she sought a second opinion from Wattenhofer.
Wattenhofer testified at the hearing that Whittle’s placement of
stents was not medically indicated and did not meet the appli-
cable standard of care.
(c) Patient C
Patient C, a 54-year-old woman, was treated by Whittle in
2012 for injection sclerotherapy and endovenous ablation of her
great and small saphenous veins. These treatments are methods
of closing veins. She returned to Whittle in September 2014
complaining of red patches on her ankle areas. The patches
were worse on the right ankle. She denied pain, swelling, achi-
ness, or heaviness. On physical examination, Patient C showed
spider veins and reticular veins without edema or varicose
veins. Whittle noted that “[e]ssentially her legs are asympto­
matic.” Whittle performed a duplex ultrasound, which detected
calf perforators with reflux and an isolated greater saphenous
vein segment with reflux. The duplex ultrasound showed no
significant reflux in the greater saphenous veins or in the
deep systems bilaterally. Despite no finding of deep system
reflux, a note in Patient C’s medical record by a physician
assistant stated that “given the recurrence of varicose veins,
I’m suspicious that she harbors compressed iliac veins and
anomalous lower extremity veins.” Patient C was informed
- 706 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695of alternative conservative therapies, including compression
stockings, physical activity, and weight loss. Whittle also rec-
ommended a venogram and IVUS for possible stenting, embo-
lization, and ablation.
Whittle diagnosed Patient C with (1) chronic venous hyper-
tension with inflammation, (2) anomalous lower extremity
veins, (3) iliac vein compression, and (4) secondary lymph-
edema. At the administrative hearing, Webb testified that spider
and reticular veins do not support a suspicion for compressed
iliac veins or anomalous lower extremity veins. He explained
that it was unlikely Patient C’s skin redness was the result of
venous disease.
Whittle performed a venogram and IVUS. He observed that
the left common iliac vein had an outflow obstruction with
only a 50-percent compression. He later stated, however, that
the left common iliac vein “appears to be occluded with trickle
flow getting into the inferior vena cava.” Webb testified that
a vein is “occluded” when it is completely blocked, which is
inconsistent with imaging of Patient C showing a 50-percent
compression.
During the IVUS, Whittle (1) placed a stent in Patient C’s
left common iliac vein, (2) performed two plug embolizations
of hypogastric veins, and (3) performed a coil embolization
and sclerotherapy on an enlarged left ovarian vein.
The Department found that the September 2014 diagnosis
of anomalous lower extremity veins and iliac vein compres-
sion was not supported by either physical or ultrasound find-
ings and that Whittle failed to meet the applicable standard
of care. It found that the use of IVUS and venography failed
to meet the applicable standard of care because Patient C had
no symptoms or complaints, no preoperative imaging, and no
clinical findings that warranted interventions. It found that
Whittle’s use of a stent, plug embolizations, and coil emboliza-
tions failed to meet the applicable standard of care because it
was unnecessary and ineffectual, since Patient C had no pelvic
- 707 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695symptoms and treatment in the pelvis could not improve symp-
toms in her ankles.
After Whittle scheduled Patient C for more coiling and pos-
sibly more stents in her pelvic veins, Patient C sought a second
opinion from Baxter. Baxter noted that the duplex ultrasound
performed by Whittle did not show any significant reflux in
Patient C’s left side and did not warrant invasive diagnostic and
treatment techniques for left common iliac vein compression.
(d) Patient D
Patient D, a 33-year-old woman, was a previous patient of
Whittle who returned in April 2015, complaining of swell-
ing, tiredness, and heaviness in her legs, as well as symptoms
consistent with restless leg syndrome. She did not complain
of pelvic symptoms. The physical examination revealed no
significant venous varicosities, but showed some amount of
edema bilaterally. Patient D reported that she exercised regu-
larly, elevated her legs in the evenings, and had worn compres-
sion stockings in the past. Whittle performed a venous duplex
ultrasound showing reflux in Patient D’s greater and small
saphenous vein and a thickened valve cusp in the left femo-
ral vein. Whittle diagnosed Patient D with vein compression,
lower limb vessel anomaly, chronic venous hypertension with
inflammation, varicose veins of the left lower extremity with
inflammation, and secondary lymphedema. Whittle found she
had a CEAP score of 3 bilaterally, indicating superficial venous
disease. He recommended a venogram, an IVUS, and stents,
plugs, and/or coils to treat the problems.
Patient D did not undergo the treatment recommended by
Whittle and sought a second opinion from Torpy. Torpy deter-
mined that Patient D had a CEAP score of 2. Torpy ablated
Patient D’s great saphenous vein, and the treatment was suc-
cessful. Patient D told Torpy that Whittle had diagnosed her
with May-Thurner syndrome, but Torpy did not find any evi-
dence of iliac vein compression. Torpy testified that Whittle’s
- 708 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695treatment, diagnostics, and recommendations for Patient D
failed to meet the standard of care in Nebraska.
Webb opined that a venogram and IVUS were not medically
indicated for Patient D, noting that the 2015 duplex ultrasound
was not greatly changed from a prior duplex ultrasound Whittle
performed in 2013. The Department found that the April 2015
diagnosis of vein compression, recommendation to use a veno-
gram and IVUS, and recommendation to use stents, plugs,
and/or coils to treat issues in Patient D’s pelvic veins failed
to meet the applicable standard of care because the diagnoses
of vein compression and lower limb vessel anomaly were not
supported by physical findings, duplex ultrasound findings, or
other medical evidence.
(e) Patient E
Patient E, a 51-year-old woman, presented to Whittle in
October 2013 with complaints of left hip, thigh, and groin pain.
The medical record shows that Patient E was suffering from leg
pain, aching, cramping at night, and swelling, as well as tired
and heavy legs, with symptoms in the left leg being worse than
in her right. However, at the hearing, Patient E denied having
such symptoms. Patient E reported that she exercised regularly,
elevated her legs in the evening, and had worn compression
stockings for about a week after surgeries. She reported pelvic
pain and heaviness, vulvar varicosities, painful intercourse,
hemorrhoids, bladder spasms, and a history of polycystic ova-
ries. She previously had three laproscopic surgeries in her pel-
vis, all related to cystic ovaries.
Whittle performed a venous duplex ultrasound, which
showed reflux in a perforator vein in Patient E’s left calf.
Whittle diagnosed pelvic congestion syndrome, chronic venous
hypertension with inflammation, varicose veins of the left
lower extremity with inflammation, and “heterozygous factor
V leiden mutation.” He recommended a venogram and IVUS
of the abdomen and pelvis, with a possible angioplasty and
insertion of stents.
- 709 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695Whittle performed a venogram and IVUS on Patient E. He
placed stents in several veins and identified a 90-percent steno-
sis in the left common iliac vein. He investigated hypogastric
veins and ovarian veins and noted only mild reflux in the left
hypogastric vein, no reflux in the right hypogastric vein, and
no reflux in either ovarian vein.
Patient E’s pain continued to increase. She returned to
Whittle in June 2014, complaining of pain in her bilateral hips,
radiating to her thighs and buttocks. Whittle performed a trans-
vaginal ultrasound and revealed hypogastric veins on each side
which were normal. Nonetheless, Whittle found that Patient E
had “[a]nomalous enlarged hypogastric veins noted bilaterally.”
He recommended a repeat IVUS and venography to examine
the pelvic veins and to use stents, plugs, and/or coils to treat
any problems.
Whittle performed the repeat IVUS in August 2014. The
sizes of the hypogastric veins were not significantly enlarged
or anomalous. There was no significant reflux in either ovarian
vein. Despite the absence of reflux, Whittle performed a plug
embolization of the origins of Patient E’s hypogastric veins.
Patient E recalled that she screamed because of the pain in her
lower back during this round of procedures.
Webb testified that Patient E’s gynecological diagnoses were
likely the true etiology for her symptoms. Baxter testified the
diagnoses by Whittle were not supported by the medical record
or physical findings. The record is undisputed that approxi-
mately two-thirds of the millions of women who suffer from
pelvic pain in the United States can attribute that pain to non-
venous etiology. Webb testified that he is not aware of another
physician in Nebraska or anywhere else who would proceed to
the procedures for Patient E in the same manner as Whittle.
The Department found that the October 2013 recommenda-
tion of a venogram and IVUS and a possible angioplasty and
stents failed to meet the applicable standard of care because
(1) Patient E’s physical symptoms and the results of her duplex
ultrasound findings did not support a diagnosis of pelvic
- 710 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695congestion syndrome, (2) Whittle’s theory was not correct, and
(3) Whittle had not attempted an adequate trial of conservative
therapy given Patient E’s clinical presentation. It found that
the June 2014 recommendation of IVUS and venography for
Patient E failed to meet the applicable standard of care because
the same procedure had been conducted 9 months prior and a
reasonable physician would not expect a change in a patient’s
vein status in such a short period of time and because there
was no basis to recommend such intervention. With respect to
the embolization of the hypogastric vein, the Department found
this was not indicated based on Patient E’s symptoms and clini-
cal findings.
Patient E did not obtain clinical relief from the procedures.
When the pain in her legs and behind her knees worsened, she
sought a second opinion from two other physicians. Baxter
testified that stents were unnecessary and that closing the veins
was not within the standard of care.
(f ) Patient F
Patient F, a 14-year-old girl, presented to Whittle in April
2013 with lower leg swelling and discoloration of her feet
which had progressed during the previous 6 months. She had
never worn compression stockings. A physical examination
showed trace edema on both legs with discoloration of the feet
up to the midshin area. A duplex ultrasound revealed reflux
within the greater and small saphenous venous systems bilater-
ally. There was no significant reflux.
Whittle diagnosed Patient F with chronic venous hyperten-
sion with inflammation and recommended a trial of compres-
sion stockings for 3 to 6 months. He informed Patient F that
if symptoms persisted, he would consider endovenous catheter
ablation of the saphenous veins and vascular ultrasound assess-
ment of her iliac veins.
In July 2013, Patient F returned for a followup appoint-
ment. She reported that she had worn compression stock-
ings, “collectively for about a month,” but the stockings were
- 711 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695uncomfortable and her feet were still purple, so she stopped
wearing them. She requested that Whittle perform an IVUS.
Physical examination revealed a red knee, bluish discoloration
on both feet, and edema.
In August 2013, Whittle performed an IVUS and veno­graphy
and noted that the inferior vena cava was occluded. Webb
opined that this finding was not consistent with the imaging
and was an “egregious” error. Whittle inserted bilateral stents,
using a “double barrel” technique, into the common iliac vein.
Patient F’s physical condition did not improve, and she
developed significant back pain. She sought treatment from
Baxter, who concluded, to a reasonable degree of medical
certainty, that Patient E’s severe back pain was caused by the
stents. Baxter and Webb testified that the stents were too big for
Patient F’s veins. Further, the stents did not improve the blu-
ish discoloration on Patient F’s feet. The pain from the stents
caused Patient F to take pain prescription medications, miss
classes, and “eventually . . . homeschool.” Baxter attempted
to remove the “double barrel” stent placed by Whittle, but it
was too big. He observed that “the stents were actually push-
ing into the wall to the point that they were just barely covered
by any tissue. . . . I thought that if I tried to take those out, it
would just destroy the [vein].” According to Baxter, the stents
are likely to “come through the wall of the vein,” which would
necessitate additional surgery.
The Department found that the April 2013 diagnosis of
Patient F with chronic venous hypertension with inflamma-
tion failed to meet the applicable standard of care because it
was not supported by reported symptoms, physical findings,
or duplex ultrasound results and was wrong. In fact, Patient F
suffered from acrocyanosis, a benign, usually neurological dis-
order, which is not related to venous compression. Baxter tes-
tified that acrocyanosis is not an uncommon condition, espe-
cially among adolescent girls, and that the best treatment is
simply reassuring the patient that the condition is benign. The
Department found that the August 2013 operation also failed
- 712 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695to meet the applicable standard of care because Patient F’s
symptoms and diagnostic results did not support a pelvic cause
of any venous disease.
(g) Patient G
Patient G, a 59-year-old woman, presented to Whittle in
July 2013 with a complaint of varicosities that had worsened
over the previous decade. She reported symptoms of itching,
burning, aching, cramping, fatigue, heaviness, and foot pain
for 2 to 3 years. Additionally, she had pelvic heaviness and
pain, bladder spasms, irritable bladder, painful intercourse,
and crampy and bloated feelings. She had not worn compres-
sion stockings.
Whittle’s physical examination showed spider veins on both
of Patient G’s thighs. She had edema showing minor swell-
ing bilaterally. An ultrasound of Patient G’s lower extrem-
ity showed an absence of reflux in the left or right greater
saphenous vein and deep venous systems bilaterally. Whittle
diagnosed Patient G with chronic venous hypertension with
inflammation, pelvic congestion syndrome, and spider veins.
Webb and Baxter testified that these diagnoses were not within
the standard of care. Whittle recommended a venogram and
IVUS, a possible angioplasty, and a possible stent.
Patient G sought a second opinion from Baxter, who recom-
mended conservative therapy.
The Department found that the July 2013 diagnoses of pel-
vic vein compression and pelvic congestion syndrome failed
to meet the applicable standard of care because they were not
supported by history, physical findings, or a duplex ultrasound
and were not correct. The recommendation of a venogram and
IVUS failed to meet the applicable standard of care because
conservative management with compression therapy was not
offered prior to a recommendation of intervention.
(h) Patient H
Patient H, a 49-year-old woman, presented to Whittle in
February 2013 with complaints of chronic venous hypertension
- 713 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695and varicose veins for the previous 20 years. She had progres-
sive throbbing, aching, heaviness, and pain in both legs; was
fatigued; had pelvic pain after intercourse; and suffered from
bladder and rectal spasms. She also complained of a persistent
burning in her right calf. She had previously had surgeries to
remove her uterus and ovaries. She had been wearing compres-
sion stockings for 6 years.
Whittle performed an ultrasound, which showed significant
reflux in Patient H’s right and left great saphenous veins, left
anterior accessory saphenous vein, right posterior accessory
saphenous vein, and right small saphenous vein. She also had
varicosities in the thigh and calf of both legs. Whittle diag-
nosed her with pelvic congestion syndrome and chronic venous
hypertension with inflammation, inflammation of a vein and
vein inflammation causing a clot of the superficial vessels
of her lower extremities, and swelling of a limb. He recom-
mended a transvaginal ultrasonography, which was performed
2 days later. It showed that the vessels in Patient H’s pelvic
area were normal sized.
In Patient H’s medical record, Whittle stated that the find-
ings were “consistent with enlarged refluxing varicose veins
of the pelvis . . . consistent with iliac outflow obstruction.”
Whittle recommended a venogram and IVUS and a possible
angioplasty and/or stent placement. Webb testified that such
a diagnosis was not supported by the evidence and was not
within the standard of care. He explained that, in fact, the
removal of the uterus and ovaries would have “dramatically
lessen[ed] the likelihood of having pelvic congestion syndrome
because you’ve obliterated most of the veins that are involved
with that syndrome.”
The Department found that Whittle’s recommendation that
Patient H proceed with venography and other procedures failed
to meet the applicable standard of care because the reported
symptoms and objective findings did not support a diagnosis
of pelvic congestion syndrome. Patient H sought a second
opinion from Baxter, who performed an MRI of her pelvis and
- 714 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695found that the pelvic veins were not enlarged. Baxter did not
observe any evidence of pelvic congestion syndrome. He pre-
scribed compression support stockings, which relieved some of
her symptoms.
(i) Patient I
Patient I, a 47-year-old woman, presented to Whittle in
October 2010 with complaints of calf pain and varicose veins
in both legs with progressive throbbing, aching, heaviness,
itching, tingling, and swelling throughout the day. Her pain
was worse in her right leg than her left. She had no pelvic com-
plaints. Whittle’s physical examination revealed ropy varicose
veins in the bilateral thighs and calves and minor edema. A
duplex ultrasound showed superficial vein reflux in each lower
extremity, no evidence of deep vein thrombosis on either side,
and an enlarged lymph node on Patient I’s right groin. There
was no indication that the abdominal wall was examined.
Whittle diagnosed Patient I with varicose veins of the lower
extremities with inflammation and swelling of limbs. He con-
cluded that she had a CEAP score of 4 bilaterally. He recom-
mended endovenous ablation for both legs.
Patient I called Whittle’s office and spoke with a member of
his nursing staff about a potential pelvic scan. According to the
nurse’s note, the nurse “explained we would probably need her
to come back for another office visit to document her symp-
toms” to support a magnetic resonance venography (MRV),
because insurance criteria had “tightened on approving these
MRV’s but I assured her we would do what was needed to get
the approval for the test.”
In November 2010, Whittle performed an endovenous abla-
tion on Patient I on both legs. The next day, he documented new
pelvic pain and pain on intercourse by Patient I. He reported
that her pelvic symptoms had been worsening over the past
2 to 3 years. His report stated that the ultrasound showed
a large cluster of varicosities “which appear[] to originate
along the lower abdominal wall and pelvis.” He diagnosed
- 715 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695Patient I with pelvic congestion syndrome and recommended
an MRV.
The MRV revealed reflux and enlargement of the ovarian
veins, the left greater than the right; enlarged internal iliac vein
branches; mild enlargement of the inferior vena cava; and some
cysts. The MRV did not find compression of the inferior vena
cava or either common iliac vein and no anomalous or enlarged
internal iliac veins with reflux identified.
In December 2010, Whittle subsequently performed staged
endovenous ablations on Patient I’s greater saphenous veins.
He then performed a venography of the ovarian veins. During
this operation, he observed a vein refluxing and embolized
it with a coil. Later in December 2010 and in April 2011,
Whittle performed endovenous ablations on Patient I’s lower
extremities.
In October 2011, Patient I returned with complaints of
persistent pelvic pain and throbbing radiating to her thighs
bilaterally with the right being worse than the left. Whittle
noted that Patient I “had an MRV scan prior to the coil embo-
lization which demonstrates reflux in both ovarian veins and
a suspicion for refluxing her internal iliac veins which are
large.” He recommended a repeat venography with possible
coil embolizations of the pelvic veins. The new venography
identified reflux in the right ovarian vein, and Whittle embo­
lized the vein.
In March 2012, Patient I returned to Whittle complaining of
pain and burning in her right calf and inflammation. A duplex
ultrasound showed reflux in two right distal calf perforators
and scattered secondary varicosities bilaterally. He recom-
mended endovenous catheter ablation of the refluxing perfo-
rator segment. The ablation of the right calf perforators was
performed in April 2012. Webb testified this ablation was not
within the standard of care, because Patient I did not meet the
criteria for ablation of her perforators.
In June 2014, Patient I returned to Whittle complain-
ing of recurrent varicose veins and throbbing, achiness, and
- 716 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695heaviness beginning in the groin and extending into the thighs
and calves. Whittle recommended intravascular ultrasound
assessment of her iliac veins to look for outflow obstruction
and assess her hypogastric veins for anomaly. He performed
a venogram and IVUS and measured the hypogastric veins
as within a range shown to be normal by the State. Whittle
described the left vein as having severe reflux, stagnation of
flow, and a left-to-right crossover flow. He described the right
hypogastric vein as having absent valve function, stagnation
of flow, and right-to-left crossover flow. The crossover flow
did not relate to any of Patient I’s symptoms, but nonetheless,
Whittle inserted “double barrel” stenting to the common iliac
veins and plugged the origins of the hypogastric veins. Webb
testified that plugging the internal iliac veins was not medically
indicated. Baxter testified that Patient I’s iliac vein had not col-
lapsed and that there was no reason to insert a stent.
The Department found that the April 2012 ablation of
Patient I’s perforators failed to meet the applicable standard
of care in that her clinical findings did not warrant surgical
intervention. It found that the July 2014 embolization of the
hypogastric veins was not medically indicated and failed to
meet the applicable standard of care.
4. Sanctions
The administrative order found that Whittle’s over diagnoses
and over treatment resulted in his patients’ undergoing numer-
ous unnecessary and unwarranted invasive diagnostic tests and
surgeries and that “the violations of his professional duties
are clear and significant.” It found that given the large num-
ber of patients affected by Whittle’s pattern of negligent and
unprofessional conduct, suspension was appropriate. Several
mitigating factors supporting suspension rather than revocation
included Whittle’s cooperation with the Department and that he
was otherwise fit to practice medicine.
In affirming the sanction imposed by the Department, the
district court agreed that Whittle was fit to practice medi-
cine, but found that the nature of the offenses, the need for
- 717 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695deterrence, the maintenance of the reputation of the profession,
and the attitude of the offender “more than adequately” sup-
ported the sanction. The court found, inter alia, that Patients
E and F suffered pain because Whittle performed procedures
not medically indicated and that Patients A through C and G
underwent invasive, unnecessary procedures. The court deter-
mined that the 6-month suspension that Whittle received did
not shock the conscience and that disciplining a physician for
misconduct is related to the legitimate governmental interest of
public health and welfare.
Whittle appeals.
III. ASSIGNMENTS OF ERROR
Whittle claims, summarized and restated, that he was dis-
ciplined under an invalid regulation, that the Department and
the district court applied the incorrect standard of care, that the
proceedings were interjected with religious animus, that cer-
tain evidentiary rulings were incorrect, and that he was denied
due process.
IV. STANDARDS OF REVIEW
[1,2] A judgment or final order rendered by a district court in
a judicial review pursuant to the Administrative Procedure Act
may be reversed, vacated, or modified by an appellate court
for errors appearing on the record. Swicord v. Police Stds. Adv.
Council, ante p. 43, 958 N.W.2d 388 (2021). When review-
ing an order of the district court under the Administrative
Procedure Act for errors appearing on the record, the inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Swicord, supra.
[3] To the extent that the meaning and interpretation of
statutes and regulations are involved, questions of law are
presented which an appellate court decides independently of
the decision made by the court below. McManus Enters. v.
Nebraska Liquor Control Comm., 303 Neb. 56, 926 N.W.2d
660 (2019).
- 718 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695V. ANALYSIS
1. Valid Exercise of Regulatory Authority
Whittle’s principal claim concerns the standard of care that
was applied in this disciplinary proceeding by the Department
and the district court. Whittle claims that he belongs to a
national school of thought in medicine which favors more
aggressive venous interventions, but which is disfavored by
local practitioners. Whittle claims that 172 Neb. Admin. Code,
ch. 88, § 010.02(32) (2013), which he was found to have
violated, is invalid because its standard of care is estab-
lished by reference to practice in the State of Nebraska, not a
national standard, and in so providing, he claims the regula-
tion is inconsistent with and impermissible under Nebraska’s
Uniform Credentialing Act, see Neb. Rev. Stat. § 38-101 et
seq. (Reissue 2016). We conclude that the Department pos-
sessed authority under § 38-179(15) to define acts of unpro-
fessional conduct and that § 010.02(32) did not impermissibly
modify, alter, or enlarge portions of its enabling statute. Thus,
Whittle’s ­violations were found to have occurred under a
proper regulation.
We first set forth the statutory and regulatory framework
behind the regulation which Whittle challenges. The Uniform
Credentialing Act provides that a credential to practice a
profession may be denied, refused renewal, or have other
disciplinary measures taken under one or more of 24 bases,
including, as relevant here, “(6) Practice of the profession
. . . (d) in a pattern of incompetent or negligent conduct;
. . . (23) Unprofessional conduct as defined in section 38-179.”
§ 38-178.
Unprofessional conduct, as defined by statute, “means any
departure from or failure to conform to the standards of accept-
able and prevailing practice of medicine and surgery or the eth-
ics of the profession, regardless of whether a person, patient,
or entity is injured.” Neb. Rev. Stat. § 38-2021 (Reissue
2016). See, also, § 38-179. Unprofessional conduct includes
“[f]ailure to comply with any federal, state, or municipal
- 719 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695. . . regulation that pertains to the applicable profession,” and
“[s]uch other acts as may be defined in rules and regulations.”
§ 38-179(13) and (15).
Turning to the regulations in effect at the time of the hear-
ing, § 88-010.02(32) defined unprofessional conduct to include
“[c]onduct or practice outside the normal standard of care in
the State of Nebraska which is or might be harmful or danger-
ous to the health of the patient or the public, not to include a
single act of ordinary negligence.” The rule in effect between
July 29, 2004, and December 15, 2013, similarly defined
unprofessional conduct to include “[a]ny conduct or practice
outside the normal standard of care in the State of Nebraska
which is or might be harmful or dangerous to the health of the
patient or public.” 172 Neb. Admin. Code, ch. 88, § 013(21)
(2004).
Whittle challenges the correctness of the regulation’s phrase
“the normal standard of care in the State of Nebraska.” He
claims the phrase is inconsistent with Nebraska’s Uniform
Credentialing Act and is invalid. He argues that the effect of
the regulation is to establish a “majoritarian rule” among medi-
cal professionals in Nebraska, brief for appellant at 24, which
results in punishment for physicians using less conservative
approaches than those employed by a majority of practitioners
in Nebraska. We reject Whittle’s challenge.
[4] To be valid, a rule or regulation must be consistent with
the statute under which the rule or regulation is promulgated.
Mahnke v. State, 276 Neb. 57, 751 N.W.2d 635 (2008). We
believe the phrase “[c]onduct or practice outside the normal
standard of care in the State of Nebraska” in the challenged
regulation is not inconsistent with § 38-179. Section 38-179
explicitly authorizes the Department to define the bases of
unprofessional conduct to supplement those enumerated in
§ 38-179(13) and (15). Section 38-179 does not provide a
definition of “standards of acceptable and prevailing practice,”
much less one at odds with that provided by the Department
in § 010.02(32).
- 720 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695Whittle relies heavily on Mahnke, supra, in support of his
contention that § 010.02(32) is invalid. Whittle’s challenge
compares unfavorably with Mahnke, in which we invalidated
a prior version of the same regulation to the extent it could
be interpreted to permit discipline for a single act of ordinary
negligence. The problem with the regulation as it was written
at the time Mahnke was under consideration was that it cre-
ated a basis to discipline a professional who had committed
a single act of unprofessional conduct and therefore directly
contradicted the language of the enabling statute, Neb. Rev.
Stat. § 71-147 (Reissue 2003), which then permitted the State,
as it does now, the power to impose discipline based on “a
pattern of negligent conduct.” Cf. § 013(21). Under the statu-
tory definition requiring “a pattern,” a professional could not
be disciplined for a single act of ordinary negligence, and we
found that the regulation in question was invalid because its
provision permitted discipline based on a single act of negli-
gence which was directly inconsistent with the statute under
which it was promulgated.
In contrast to Mahnke, the regulation at issue here,
§ 010.02(32), is not inconsistent with the language of the
authorizing legislation, and in fact, the statutes specifically
authorize the Department to create regulations describing acts
of unprofessional conduct. See § 38-179. The “normal standard
of care in the State of Nebraska” in the regulation is not in
excess of the enabling legislation. We conclude the regulation
is valid.
[5] Our conclusion that the regulation is valid is harmonious
and compatible with Nebraska malpractice legislation found
elsewhere in the statutes. Under § 38-179(13), unprofessional
conduct includes “failure to comply with any federal, state,
or municipal . . . regulation that pertains to the applicable
profession.” In this regard, we note the regulatory similarities
between “the normal standard of care in the State of Nebraska”
described in § 010.02(32) and the locality rule adopted by
the Legislature in the Nebraska Hospital-Medical Liability
- 721 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695Act for medical-negligence actions involving applicable health
care providers. Neb. Rev. Stat. § 44-2810 (Reissue 2010). The
Nebraska Hospital-Medical Liability Act requires an expert
witness on medical malpractice to be familiar with the cus-
tomary practice among medical professionals in the same or
similar locality under like circumstances. See, § 44-2810; Bank
v. Mickels, 302 Neb. 1009, 926 N.W.2d 97 (2019). Our conclu-
sion that § 010.02(32) is valid is supported by the enabling
legislation and consistent and harmonious with our medical
malpractice jurisprudence and legislative scheme. Whittle’s
assignment of error challenging the validity of the regulation
is without merit.
2. Treatment Was Outside Normal
Standard of Care
Whittle contends that the evidence did not support the dis-
cipline imposed and that in particular, this case would have
had a different outcome under a different standard of care.
These contentions are without merit. The Department and the
district court considered Whittle’s arguments regarding the
standard of care and properly rejected them as do we. Further,
even if we were to apply a national standard of care as Whittle
urges, in light of the evidence, his argument would still be
unavailing.
We have reviewed the record, and contrary to Whittle’s
assertion, there is testimony referencing the national standard
of care, such as that of Webb and Baxter; the kind of testi-
mony Whittle prefers was before the Department. And in this
regard, we do not find Webb to be disqualified as a witness
as Whittle suggests. But even in light of all the testimony, the
Department found a universal and fundamental violation to the
effect that Whittle had “abandoned a medical evidence-based
practice.” Such conduct violated national and Nebraska stan-
dards of care.
The Department and the district court considered and
rejected Whittle’s claims suggesting that his approaches
- 722 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695were on the vanguard of venous medicine nationwide. The
Department found that “[c]ontrary to [Whittle’s] assertion, this
is not a case of a ‘philosophical difference’ between parties,
where entrenched conservatives who do not understand modern
medicine battle innovators who seek to advance new methods
of diagnosis and treatment to proactively alleviate suffering
in patients.” The Department and the district court did not
select between two reasonable approaches to venous medicine,
because there was ample evidence that Whittle’s over diagnosis
and over treatment fell outside the standard of care regardless
of how it is measured. The record supports the finding that
Whittle “caused significant physical and emotional harm to his
patients due to his actions, which caused patients to undergo
unnecessary and invasive tests, treatments, and follow-ups.”
On our review for errors on the record, we conclude that the
State’s expert testimony and the evidence support the district
court’s conclusion that Whittle’s actions warranted the disci-
pline imposed by the Department.
3. The Disciplinary Proceedings Were Not
Interjected With Religious Animus
Whittle claims that the disciplinary proceedings against him
were fueled by religious animus and were not neutral as
required by the Free Exercise Clause of the First Amendment.
See Masterpiece Cakeshop v. Colo. Civil Rights, ___ U.S. ___,
138 S. Ct. 1719, 201 L. Ed. 2d (2018). We find this assignment
of error to be without merit. Whittle’s claim stems from the
remarks in Webb’s 17-page written report in which he stated:
I am particularly offended by the previous fliers that he
has distributed to the Omaha community including “. . .
curing vascular disease through the hands of God . . .”
and his current letter head [sic]: “Revealing God’s love
Through Excellence in Health Care[.]” Both statements
seem to be far from the truth.
Whittle cross-examined Webb extensively at the hearing.
Webb testified that his review of the case was not affected
- 723 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695by Whittle’s religious beliefs and that the statements in his
report were concerned with the second part of the issue, which
was “excellence in healthcare,” and also, “curing vascular dis-
ease,” which were the more offensive issues. Webb made clear
that he was not opposed to Whittle’s beliefs. Webb testified he
was not offended by Whittle’s statements “at all unless they,
in fact, do not provide excellent health care.” Webb stated that
Whittle’s statements were of concern “after [he] saw what had
happened to the patients[’] care in these seven patients that
I reviewed.”
Whittle analogizes Webb’s statements to the impermissible
hostility toward religious beliefs in Masterpiece Cakeshop,
supra, in which the U.S. Supreme Court found that the
Colorado Civil Rights Commission did not give a baker neutral
treatment, with members of the commission showing clear and
impermissible hostility toward the baker’s religious beliefs.
As the district court concluded, “[t]his case is nothing like
Masterpiece Cakeshop . . . .” Even if one of the State’s witnesses
was offended with religious statements of Whittle’s branding,
the viewpoints were not espoused by the Department. During
the hearings, the only reference to Whittle’s religion was the
material quoted above in Webb’s report and Whittle’s cross-
examination of Webb. The record shows that the Department
was neutral toward Whittle’s religion or religious beliefs and
allowed him to explore his concerns fully through cross-­
examination. The district court’s consideration and resolution
of Whittle’s religious animus issue was not error. This assign-
ment of error is without merit.
4. The District Court Properly
Excluded Appellate Briefs
Whittle also claims that the district court erred when it did
not admit the parties’ briefs into evidence. Whittle urges admis-
sion, because he submitted hundreds of pages of briefing in
lieu of oral argument, which would have been transcribed by a
court reporter. The district court did not err.
- 724 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695[6,7] Section 84-917 provides that review by the district
court “shall be conducted by the court without a jury on the
record of the agency.” We have noted that “‘[i]n a de novo
review on the record of an agency, the record consists of the
transcripts and bill of exceptions of the proceedings before the
agency and facts capable of being judicially noticed pursuant
to Neb. Evid. R. 201.’” Betterman v. Department of Motor
Vehicles, 273 Neb. 178, 188, 728 N.W.2d 570, 583 (2007).
Accordingly, the Administrative Procedure Act does not autho-
rize a district court’s reviewing the decision of an administra-
tive agency to receive additional evidence as urged by Whittle.
See Betterman, supra. Simply put, a party’s brief may not
expand the evidentiary record on appeal. See Clarke v. First
Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 (2017).
The district court was not empowered to admit the briefs into
evidence for the purpose urged by Whittle and did not err when
it refused to receive the written argument into the record.
5. Whittle’s Evidentiary Claims
Are Meritless
Whittle makes various claims, inter alia, regarding eviden-
tiary rulings, the competency of a witness, and an assertion that
he was denied due process. With respect to the contention that
the Department erroneously did not receive medical literature
supporting his view of proper venous medicine, in the absence
of an offer of proof and an identification of the material
excluded, we find no error on the record. To the extent Whittle
claims he was denied procedural due process because Webb
in particular was, or appeared to be, biased or represented a
conflict of interest, this claim is unsupported by the record.
Whittle’s claim is more properly addressed to credibility than
admissibility. In this regard, we note that physicians other than
Webb testified both favorably and unfavorably as to Whittle. So
there were competing views available to the fact finder.
After extensive cross-examination, evidence showed that
the Department’s physicians were established in the area, had
- 725 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
WHITTLE v. STATE
Cite as 309 Neb. 695more patients than they could accommodate, and were not
direct competitors of Whittle. There is no evidence they ben-
efited economically by the Department’s decision to discipline
Whittle for over diagnosis and over treatment.
[8] Procedural due process in an administrative proceeding
requires “notice, identification of the accuser, factual basis
for the accusation, reasonable time and opportunity to present
evidence concerning the accusation, and a hearing before an
impartial board.” Prokop v. Lower Loup NRD, 302 Neb. 10,
29-30, 921 N.W.2d 375, 392 (2019). The record in this case
exceeds 4,000 pages of testimony in addition to thousands of
pages of exhibits. Whittle provided a vigorous defense to the
State’s charges, and the Department considered the defense in
its order. The Department’s order and the subsequent review by
the district court show no error.
VI. CONCLUSION
As explained above, the regulatory definition of unprofes-
sional conduct in § 010.02(32) is consistent with the enabling
and other statutes. The Department and the district court
applied the proper standard of care. The proceedings were
not interjected with religious animus. No evidentiary ruling
resulted in reversible error, and Whittle was afforded due proc­
ess. The professional discipline and sanction against Whittle
are supported by evidence that Whittle over diagnosed and
over treated numerous patients in his venous medicine practice.
Finding no error on the record, we affirm the order of the dis-
trict court which affirmed the 6-month suspension of Whittle’s
license to practice medicine.
Affirmed.