TITLE 40. PROFESSIONS AND OCCUPATIONS
CHAPTER 47. Physicians and Miscellaneous Health Care Professionals
ARTICLE 1. General Provisions

SECTION 40-47-5. Application of Chapter 1; conflict with other articles.

(A) Unless otherwise provided for in this chapter, Chapter 1, Title 40 applies to the profession or business regulated under this chapter. However, if there is a conflict between this chapter and Article 1, Chapter 1, Title 40, the provisions of this chapter control.

(B) Unless there is a conflict with other articles of this chapter, Article 1, Chapter 47, Title 40 applies to all programs administered through the State Board of Medical Examiners.

HISTORY: 2006 Act No. 385, § 1.

SECTION 40-47-110. Misconduct constituting grounds for disciplinary action; temporary suspensions; review of final actions; conduct subverting security or integrity of medical licensing examination process.
(A) In addition to the grounds provided in Section 40-1-110, upon finding misconduct that constitutes one or more of the grounds for disciplinary action the board may cancel, fine, suspend, revoke, issue a public reprimand or a private reprimand, or restrict, including probation or other reasonable action such as requiring additional education or training or limitation on practice, the authorization to practice of a person who has engaged in misconduct.

(B) “Misconduct” that constitutes grounds for disciplinary action is a showing to the board by the preponderance of evidence that a licensee has:

(1) used a false, fraudulent, or forged statement or document or practiced a fraudulent, deceitful, or dishonest act in connection with a licensing requirement;

(2) been convicted of, has pled guilty to, or has pled nolo contendere to a felony or other crime involving moral turpitude or drugs. For purposes of this item, “drugs” includes a substance whose possession, use, or distribution is governed by Article 3, Chapter 53 of Title 44, Narcotics and Controlled Substances, or which is listed in the current edition of the Physician’s Desk Reference;

(3) violated a federal, state, or local law involving alcohol or drugs or committed an act involving a crime of moral turpitude. The board may receive evidence to reach an independent conclusion as to the commission of the violation; however, the determination may be used only in making the administrative decision;

(4) engaged in the habitual or excessive use or abuse of drugs, alcohol, or other substances that impair ability;

(5) attempted to practice when judgment or physical ability is impaired by alcohol, drugs, or other substances;

(6) been convicted of or sanctioned for illegal or unauthorized practice;

(7) knowingly performed an act that in any way assists an unlicensed person to practice;

(8) sustained a physical or mental impairment that renders further practice by the licensee dangerous to the public or that may interfere with the licensee’s ability to competently and safely perform the essential functions of practice;

(9) engaged in dishonorable, unethical, or unprofessional conduct that is likely either to deceive, defraud, or harm the public;

(10) used a false or fraudulent statement in a document connected with the licensee’s practice;

(11) obtained fees or assisted in obtaining fees under dishonorable, false, or fraudulent circumstances;

(12) intentionally violated or attempted to violate, directly or indirectly, or is assisting in or abetting the violation of or conspiring to violate the medical practice laws;

(13) violated the code of medical ethics adopted by the board or has been found by the board to lack the ethical or professional competence to practice;

(14) violated a provision of this chapter or a regulation or order of the board;

(15) failed to cooperate with an investigation or other proceeding of the board;

(16) failed to comply with an order, subpoena, or directive of the board or department;

(17) failed to prepare or maintain an adequate patient record of care provided;

(18) engaged in disruptive behavior or interaction, or both, with physicians, hospital personnel, patients, family members, or others that interferes with patient care or could reasonably be expected to adversely impact the quality of care rendered to a patient. This behavior may include, but is not limited to, inappropriate sexual behavior;

(19) engaged in behavior that exploits the physician-patient relationship in a sexual way. This behavior is nondiagnostic and nontherapeutic, may be written, verbal, or physical and may include expressions of thoughts and feelings or gestures that are sexual or that reasonably may be construed by a patient as sexual. This behavior includes sexual contact with patient surrogates or key third parties;

(20) failed to appear before the board after receiving a formal notice to appear;

(21) signed a blank prescription form;

(22) failed to report to the board any adverse disciplinary action by another United States or foreign licensing jurisdiction, a peer review body, a health care institution, by any professional or medical society or association, a board-approved credentialing organization, a governmental agency, a law enforcement agency, including arrest, or a court, including indictment, for acts or conduct similar to acts or conduct that would constitute grounds for disciplinary action as provided for in this section;

(23) failed to provide pertinent and necessary medical records to another physician or patient in a timely fashion when lawfully requested to do so by a patient or by a lawfully designated representative of a patient;

(24) improperly managed medical records, including failure to maintain timely, legible, accurate, and complete medical records; or

(25) provided false, deceptive, or misleading testimony as an expert witness in an administrative, civil, or criminal proceeding in this State.

(C) In addition to all other remedies and actions incorporated in this chapter, a licensee who is adjudged mentally incompetent by a court of competent jurisdiction automatically must be suspended by the board until the licensee is adjudged by a court of competent jurisdiction, or in another manner provided by law, as being restored to mental competency. The automatic suspension of a license pursuant to this section is public information under the Freedom of Information Act.

(D) A decision by the board to revoke, suspend, or restrict a license or to limit or discipline a licensee must be by majority vote of the board members serving, except that the board may delegate to the chairman or vice chairman of the board the authority to issue orders to temporarily suspend licenses or to seek from the Administrative Law Court an order temporarily suspending or restricting a license pending final decision by the board, as follows:

(1) when the chairman or vice chairman of the board determines that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in an order, a temporary suspension order may be issued without a prior hearing being afforded to the licensee, in which event the licensee may request by the close of the next business day after receipt of the order a review by the administrative hearing officer. The fact of suspension or restriction of a license, and the fact of any subsequent related action, is public information under the Freedom of Information Act after issuance of an order by the chairman or vice chairman, unless a review by the administrative hearing officer has been timely requested in writing. Filing a written request for a review by the administrative hearing officer does not stay the temporary suspension and no stay may be issued; however, the fact of the issuance of the temporary suspension order must not be made public until the time for requesting a review has passed or the administrative hearing officer issues an order after a review hearing. Upon proper written request, a review hearing must be held by the administrative hearing officer within three business days of the filing of the request for review, unless otherwise agreed by the parties. If the issuance of the temporary suspension order is not sustained by the administrative hearing officer, the matter must remain confidential and must not be made public, except to the extent the board considers it relevant to the final decision of the board; or

(2) the Department of Labor, Licensing and Regulation, acting through the Office of General Counsel or its designee, at the direction of the chairman or vice chairman of the board, may petition the Administrative Law Court for an order temporarily suspending or restricting a license pending final decision by the board. A hearing must be held by the Administrative Law Court within three business days of the filing of the petition, unless otherwise agreed by the parties. If an order temporarily suspending or restricting a license is not issued by the administrative law judge, the matter must remain confidential and must not be made public, except to the extent the board considers it relevant to the final decision of the board. The fact of suspension or restriction of a license, and the fact of any subsequent related action, is public information under the Freedom of Information Act after issuance of an order by the Administrative Law Court.

(E) Motions for continuance and for other interlocutory relief are not subject to review by the Administrative Law Court until a final decision has been issued by the board. A licensee against whom disciplinary action is taken in a final decision pursuant to this article has the right to review by the Administrative Law Court as provided in Section 40-1-160. If the board has revoked, suspended, or restricted a license in any manner for six months or more, including probation conditions, an appeal taken to the Administrative Law Court as provided in Section 40-1-160 has precedence on the court’s calendar, is considered an emergency appeal, and should be heard not later than thirty days from the date the petition is filed. The review is limited to the record established by the board hearing. No stay or supersedeas may be granted by the administrative law judge or a reviewing court pending appeal from a final decision by the board to revoke, suspend, or restrict a license for six months or more.

(F)(1) If a person is found by the board to have engaged in conduct that subverts or attempts to subvert the security or integrity of the licensing examination process, the board may have the scores on the licensing examination withheld or declared invalid. The individual may be disqualified from practice or be subjected to the imposition of any other appropriate sanction provided by Section 40-47-120.

(2) Conduct that subverts or attempts to subvert the security or integrity of the medical licensing examination process includes, but is not limited to, conduct that violates the:

(a) security of examination materials including, but not limited to, the improper reproduction or reconstruction of any portion of the licensing examination; aiding in the improper reproduction or reconstruction of any portion of the licensing examination; or selling, distributing, buying, receiving, or having unauthorized possession of any portion of a future, current, or previously administered licensing examination;

(b) standard of test administration including, but not limited to, improperly communicating with any other examinee during the administration of a licensing examination; copying answers from another examinee or permitting one’s own answers to be copied by another examinee during the administration of a licensing examination; or having in one’s possession during the administration of a licensing examination any books, notes, other written or printed materials, or data of any kind other than the examination materials or other materials authorized by the board; and

(c) credentials process including, but not limited to, falsifying or misrepresenting educational credentials or other information required for admission to the licensing examination, impersonating an examinee, or having an impersonator take the licensing examination in one’s behalf.

HISTORY: 2006 Act No. 385, § 1.