Whittle v. State


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. 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 – 696 – Nebraska Supreme Court Advance Sheets 309 Nebraska Reports WHITTLE v. STATE Cite as 309 Neb. 695 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, …

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