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


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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    WHITTLE v. STATE
    Cite as 
    309 Neb. 695
    Thomas 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
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    WHITTLE v. STATE
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    record 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
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    law 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
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    the 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
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    also 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.
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    •  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.
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    •  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
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    right 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
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    percent. 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
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    16-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
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    pelvic 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
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    of 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
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    symptoms 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
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    treatment, 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.
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    Whittle 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
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    congestion 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
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    uncomfortable 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
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    to 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
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    and 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
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    found 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
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    Patient 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
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    heaviness 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
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    deterrence, 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).
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    V. 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
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    . . . 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).
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    Whittle 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
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    Act 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
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    were 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
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    by 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.
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    [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
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    more 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.