concurring specially.
[¶ 18] I agree with the majority opinion that, absent a blatantly illegal or improper act on the part of the holder of a medical license, expert testimony the licensee has violated the standards of the profession is necessary in order to suspend or revoke that license. The majority opinion, relying on Martin v. Sizemore, 78 S.W.3d 249 (Tenn.Ct.App.2001), outlines well the reasons for that requirement.
[¶ 19] It is obvious from the record before us, that the State Board of Medical Examiners and its counsel at the administrative hearing believed no such expert testimony was necessary because the Board itself is the expert. But, as the majority opinion notes, not all members of the Board are physicians and those members who are physicians will not always be expert in the area of medicine at issue. Yet, employing another exception to the requirement of expert testimony, apparently from the decision in Balian v. Board of Licensure in Med., 722 A.2d 364 (Me.1999), the majority nevertheless affirms the decision of the agency based on Dr. Huffs own testimony admitting that his actions, if performed in the manner alleged, would be inappropriate and unprofessional. Huff, of course, denies he performed the test in the manner alleged.
[¶ 20] To the extent this case turns on the credibility of witnesses before the Board, I concur in the result reached by the majority opinion. Credibility is not an issue this Court decides on appeal. I am uncomfortable with the scant evidence of professional misconduct the attorney for the Board was able to wring from Huffs own lips. While I cannot conclude it was error on the part of the ALJ or the Board to rely on Huff as their expert witness, there is surely a certain irony in so doing, particularly when his credibility on other matters is rejected by the ALJ and by the Board. Nevertheless it is the evidence upon which the Administrative Law Judge relied and, in adopting the recommended findings of the ALJ, the evidence upon which I must assume the Board of Medical Examiners relied.
[¶ 21] I submit, however, that in the future it would be audacious for the Board to enter into these proceedings without the benefit of an expert witness, expecting to extract from the licensee the necessary expert testimony to sustain the charge of misconduct.
[¶ 22] Gerald W. Vande Walle, C.J.