CHAPTER 462

FORMERLY

HOUSE BILL NO. 990

AS AMENDED BY HOUSE AMENDMENT NO. 2, 3,

AND 4 AND SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 17, TITLE 24, DELAWARE CODE, RELATING TO MEDICINE, SURGERY AND OSTEOPATHY; AND PROVIDING FOR A DELAWARE MEDICAL PRACTICES ACT.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend Chapter 17, Title 24 of the

Delaware Code by striking Subchapter I, Subchapter II, Subchapter III, and Subchapter IV of said Chapter, and substituting in lieu thereof the following:

CHAPTER 17. MEDICAL PRACTICES ACT SUBCHAPTER I. LICENSE REQUIREMENTS

§ 1701. Statement of Purpose.

Recognizing that the practice of medicine is a privilege and not a natural right of individuals, it is hereby deemed necessary as a matter of policy in the interests of public health, safety and welfare to provide laws and provisions covering the granting of that privilege and its subsequent use and control, and to provide regulations to the end that the public health shall be promoted and that the public shall be properly protected against unprofessional, improper, unauthorized, and unqualified practice of medicine and from unprofessional conduct by persons licensed to practice medicine.

No person shall practice medicine in this State without having obtained from the Board of Medical Practice a certificate of authorization therefor and a license therefor as provided in this Chapter.

§1703. Definitions of Practice of Medicine; Application of Chapter.

(a) As used in this Chapter, "medicine" means the science of restoring or preserving health and includes medicine, surgery, osteopathic medicine and surgery, forensic medicine and all the respective branches of the foregoing.

(b) As used in this Chapter, "practice of medicine" means to:

(1) Establish an office in furtherance of the activities stated in paragraphs (2), (3) and (4) of this subsection; or

(2) Investigate or diagnose or offer to investigate or diagnose any physical or mental ailment, condition or disease of any person, living or dead; or

(3) Sell or give to, suggest, recommend, prescribe or direct for the use of any person, any drug, surgery, medicine, applicance or other agent, for the prevention, cure or relief of any ailment or disease of the mind or body or any symptom thereof, or for the cure of relief of any wound, fracture, bodily injury, or deformity; or

(0) Hold oneself out in any manner as engaged in the practice of medicine or to use in connection with his name, the words or letters, Dr., Doctor, M.D., D.O., Healer, or any other title, word, letter or designation which may imply or designate one engaged in the practice of medicine.

(d) As used in this Chapter, the "unauthorized practice of medicine" shall refer to the practice of medicine as defined in subsection (b) of this section by persons not permitted to perform any of the acts set forth in said subsection.

(d) This Chapter shall apply to:

(1) The administration of first aid in case of emergency or of domestic or family remedies in case of emergency; or

(2) Physicians of any civilian or military branch of the United State Government in the discharge of their official duties; or

(3) Physical therapists, psychologists, optometrists, pharmacists, chiropractors, cosmetologists, chiropodists and/or podiatrists, veterinarians, barbers, dentists, oral hygienists, professional nurses or practical nurses.

(e) Nothing contained in this Chapter shall prevent:

(1) The mechanical application of glasses, or

(0) A person who has earned a doctorate degree from a recognized college or university from using the letters "Dr." in connection with his name or from calling himself Doctor, except in matters related to medicine or health, and in such matters the type of doctorate held shall be specified; or

(1) The practice of massage; or

(2) The practice of ritual circumcision performed pursuant to the requirements or tenets of any religion; provided, however, that a person licensed to practice medicine in this State shall have certified in writing to the Board that in his opinion the practitioner has sufficient knowledge and competence to perform such procedures according to accepted medical standards, and shall not have withdrawn such certification; or

(0) The business of manicuring; or

(6) The practice of healing by spiritual means in accordance with the tenets and practice of any church or religious denomination by a duly accredited practitioner thereof. In the practice of healing by spiritual means, no individual shall use medical titles or any other designations which imply or designate him as licensed to practice medicine or surgery in this State. A person engaged in the practice of healing by spiritual means shall not perform surgical operations, nor shall he prescribe medications, nor shall any pharmacits or pharmacy honor any prescriptions drawn by such a person; or

(7) Any person from rendering medical, surgical, or health services, if such services are rendered by such person under the supervision and control of a physician or surgeon, licensed under this Chapter. Nothing herein shall be construed to change or modify legitimate practices currently prevailing in the practice of optometry or ophthalmology.

(f) Whenever any law, rule or regulation of this State or subdivision thereof requires the services of qualifications of a licensed physician or surgeon, such requirement shall be met by any person licensed to practice medicine under this Chapter.

(g) The confidential relations and communications between a physician registered under provisions of this Chapter and his patient are placed on the same basis as those provided by law between attorney and client, and nothing in this subchapter shall be construed to require any such privileged communications to be disclosed except as provided for by law.

(h) If any clause, paragraph, section or part of this law is declared unconstitutional by a court of competent jurisdiction, such judgment shall not affect, impair, or invalidate the whole or any other portion of this law.

SUBCHAPTER II. THE BOARD OF MEDICAL

PRACTICE

§1710. Composition of Board.

(a) The Board of Medical Practice, hereafter in this Chapter referred to as the "Board", is hereby established as the sole competent authority in this State to issue certificates to practice medicine and shall be the supervisory, regulatory and disciplinary body for the practice of medicine in this State.

(b) The Board shall consist of thirteen (13) voting members, six (6) of whom shall be persons licensed to practice medicine in this State (except osteopathic physicians) who have their primary place of practice of medicine in New Castle County, two (2) of whom shall be persons licensed to practice medicine in this State (except osteopathic physicians) who have their primary place of practice of medicine in Kent County, two (2) of whom shall be persons licensed to practice medicine in this State (except osteopathic physicians) who have their primary place of practice of medicine in Sussex County, one (1) from among all osteopathic physicians licensed to practice medicine in this State, and two (2) lay persons not licensed in any health related field and not licensed to practice law.

() The Governor shall appoint the members of such Board of Medical Practice from the list of resident members submitted by the Medical Society of Delaware, to the Governor by January first of each year under the seal and signed by the Secretary of the Society, and from the list of resident members submitted by the Delaware State Osteopathic Medical Society, which list shall be transmitted to the Governor by January first of such year, under the seal and signed by the Secretary of the Society, when the term of the osteopathic physician member is expiring. Such lists shall contain five names for each anticipated vacancy. The Governor shall appoint a Board of Medical Practice from the list of nominees and further, shall appoint two lay members as provided in (b) of this subsection. In case of the failure of the Societies to submit the lists, The Governor shall appoint licensed physicians or osteopathic physicians of his choice,

adhering to the prescribed representation ratio as set forth in subparagraph (b) of this Section.

(d) The original Board shall be appointed by the Governor in a timely fashion from a list of thirty (30) names, from the list of resident members submitted by the Medical Society of Delaware, eighteen (18) of whom shall be persons licensed to practice medicine in this State (except osteopathic physicians) who have their primary place of practice in New Castle County, six (6) of whom shall be persons licensed to practice medicine in this state (except osteopathic physicians) who have their primary place in practice in Kent County, six (6) of whom shall be persons licensed to practice medicine in this State (except osteopathic physicians) who have their primary place of practice of medicine in Sussex County, and from a list of three (3) names from the list of resident members submitted by the Delaware Osteopathic Medical Society, from among all osteopathic physicians licensed to practice medicine in this State. The original Board shall consist of six (6) persons licensed to practice medicine (except osteopathic physicians) in New Castle County, two (2) persons licensed to practice medicine (except osteopathic physicians) in Kent County, two (2) persons licensed to practice medicine (except osteopathic physicians) in Sussex County, one (1) person from among all osteopathic physicians licensed to practice medicine in this State, and two )2) lay persons.

(e) The members of the Board shall be divided into three classes: the first class shall be composed of four (4) members, two (2) of whom shall be physicians who have their principal practice in New Castle County, one (1) of whom shall be a physician who has his principal practice in Kent County, and One (1) of whom shall be a lay person, whose term of office shall expire March 1 next ensuing after the initial appointment; the second class shall be composed of five (5) members, two (2) of whom shall be physicians who have their principal practice in New Castle County, one (1) of whom shall be a physician who has his principal practice in Sussex County, one (1) of whom shall be anosteopathic physician practicing in the State of Delaware, and one (1) of whom shall be a lay person, whose term of office shall expire two (2) years after the initial appointment; and the third class shall be composed of four (4) members, two (2) of whom shall be physicians who have their principal practice in New Castle County, one (1) of whom shall be a physician who has his principal practice in Kent County, and one (1) of whom shall be a physician who has his principal practice in Sussex County, whose term of office shall expire three years after the initial appointment. At each annual appointment held after the initial classification and appointment, members shall be chosen for a full three (3) year term to succeed those whose terms expire. The term of office shall become effective March 1 of the year of such appointment.

(1) The President Judge of the Superior Court also shall be a member of the Board, but shall be without vote.

(g) Each one of the physician appointees must be a registered physician in good standing, and shall have practiced medicine or surgery under the laws of this State for a period of not less than five (5) years prior to such appointment.

() The Governor shall fill vacancies occurring for any reason other than expiration of term, for unexpired terms of such members, from the most recent submitted lists, and may remove any member of such Board for continued neglect of the duties required by this Chapter, or on recommendation of the appropriate medical society for unprofessional or dishonorable conduct.

(a) No member of the Board may serve more than four (4) full terms, which will not be diminished by serving an unexpired term as provided in § 1710 (h) above.

(b) The terms of present members of the Board of Medical Examiners shall terminate upon the appointment of the new members of the Board of Medical Practice.

§1711. Organization.

(a) The Board shall organize annually within thirty days of its election and shall elect from its members a President, a Secretary, and a Treasurer and such other officers as it may deem necessary, two (2) of whom may be the same person.

(b) The Board shall establish and maintain an office within this State.

(c) Meetings of the Board shall be held at least four (4) times a year at such place or places as the Board may otherwise from time to time determine by a two-thirds vote of all Board members present at a meeting where patient records are to be discussed or at a meeting where any one or more of the following duties of the Board are to be discharged:

(1) Investigating the character of an applicant for a certificate to practice medicine;

(2) Investigating any charges of unprofessional conduct;

(3) Investigating complaints and charges of physical or mental illness or excessive use or abuse of drugs, including alcohol, resulting in inability to practice medicine and reasonable skill and safety; or

(4) Suspension, revocation or reinstatement of any certificate to practice medicine.

§1712. Quorum.

(a) Seven (7) members of the Board entitled to vote shall constitute a quorum for the transaction of business with five affirmative votes being required to transact ordinary day-to-day operations.

Board entitled to vote, taken at a meeting at which a quorum is present, shall be required to adopt any regulation which could deprive a physician of his license; or to issue, deny, revoke or suspend any certificate to practice medicine; or to take any disciplinary action against any person.

§1713. Compensation Receipts and Disbursements.

(a) Each member of the Board shall receive fifty dollars ($50.00) per diem when actually attending meetings of the Board or working under its direction; and in addition thereto shall be reimbursed for actual expenses necessarily incurred in carrying out the duties of the Board.

(b) All fees and other money received by the Board shall be paid over to the State Treasurer, in accordance with Chapter 61 of Title 29.

(c) All expenses of the Board and its members, within the limits of appropriations made to it, shall be paid by the State Treasurer upon warrants signed by the proper officers of the Board.

SUBCHAPTER III. LICENSING OF PHYSICIANS §1720. Qualification Required.

(a) Any person not having a certificate to practice medicine in this State, and desiring to have such a certificate, must:

( I) Be a citizen of the United States, or have filed a petition for naturalization, or be a lawful permanent alien resident of the United States.

(2) Have a working ability to read, write, speak and understand and be understood in the English language.

(3) Have received the degree of "Doctor of Medicine" or "Doctor of Osteopathy" from a legally incorporated col-

lege or school approved by the Board, or recognized by the American Osteopathic Association or by the American Medical Association as of the time the degree was conferred; or if a graduate of a medical college or school other than one in the United States or Canada, have successfully passed the examination by the Educational Council for Foreign Medical Graduates.

(4) Have satisfactorily completed internship, or an equivalent training in an institution, which intership, training and/or institution shall have been approved by the Board.

(0) Submit to the Board a sworn statement by the applicant that he has not been convicted of a felony, been professionally penalized or convicted of drug addiction, violated the Medical Practice Act of another State, engaged in the practice of medicine without a license, prescribed narcotic drugs unlawfully, willfully violated the confidence of a patient, or has been professionally penalized or convicted of fraud.

(1) Submit to the Board a sworn statement by the applicant that he or she is at the time of application physicially and mentally capable of engaging in the practice of medicine according to generally accepted standards and submit to such examination as the Board may deem necessary to determine such capability.

(2) Pass the professional examination (unless excepted under §1725 or waived as provided herein) administered by the Board under § 1721 below.

(b) Each person desiring to practice medicine in this State shall submit to the Board an application in writing in such form as shall be required by the Board.

(c) Each applicant shall satisfy the Board of compliance with the requirements of subsection (a) above, in such form and manner as the rules and regulations published by the

Board shall require. Upon the applicant's so satisfying the Board and upon payment of such fee as shall be required by the rules and regulations of the Board the Board (unless an exception in § 1725 appplies) shall administer to the applicant an examination under § 1721.

(d) The Board of Medical Practice may waive any of the above provisions by unanimous vote of the entire Board, with an explanation recorded in the minutes.

§1721. Professional Examinations.

(a) The Board shall conduct examinations of applicants for a certificate to practice medicine in accordance with rules and regulations prescribed and published by the Board. Such examination shall be given at least twice each year, or more often as the Board shall determine. Examinations shall be given in such a way that the persons grading examination papers shall have no knowledge of the identity of the individual being examined.

() The examination shall be in the English language, shall be comprehensive in character and designed to determine the applicant's fitness to practice medicine and shall cover those general subjects and topics, a knowledge of which is commonly and generally required of candidates for the degree of Doctor of Medicine and Doctor of Osteopathy conferred by approved colleges or schools in the United States.

(a) After examination, the Board shall promptly determine whether or not each applicant has passed the examination.

(b) The Board shall determine by regulation the number of times and conditions under which an applicant who has failed one or more examinations may again apply for a certificate to practice medicine under this Chapter.

§1722. Certificate to Practice; Resignation; Annual Renewal of Registration; Fees therefor.

(a) The Secretary of the Board shall issue to each applicant who shall have successfully passed the examination a notice to that effect. Upon payment of a biennial fee of $30.00 by such applicant to the Board, the Board shall forthwith issue to such applicant a certificate stating that such applicant is authorized to practice medicine in this State (hereinafter referred to as "certificate to practice medicine.")

(b) The Board shall keep a current register of all persons authorized to practice medicine in this State and of all certificates issued by it under this section.

(c) Each person to whom a certificate to practice medicine in this State has been granted, and who desires to continue to be authorized to practice medicine in this State, shall procure from the Board at intervals established pursuant to 29 Del. C. §7904 (d) (I) a certificate to practice medicine, and pay to the Board therefor a renewal fee of $30.00 per biennium.

§1723. Notice of Certificates to Division of Public Health of the Department of Health and Social Services.

(a) The Secretary of the Board shall, immediately upon issuing a certificate to practice medicine, notify the director of the Division of Public Health of the Department of Health and Social Services of such issuance, giving to the Division of Public Health the full name and address of the person to whom such certificate was issued, and the date thereof and, in case of a temporary certificate, the length of time for which the certificate authorizes practice, and limitation on the authorization, if any.

§1724. State License.

(a) The State Department of Finance shall issue a

license, signed by the Director of Revenue and certifying that the licensee is licensed to practice medicine in this State in conformity with the laws hereof, to any person who presents to the Director of Revenue a current certificate to practice medicine issued by the Board as provided in this Subchapter together with payment of all applicable State fees and taxes. No person shall practice medicine in this State without having obtained a license therefor as provided in this Subchapter; provided, however, that a temporary license shall be issued to any person presenting to the Director of Revenue a current temporary certificate to practice medicine, together with payment of any State license fee, such temporary license to be valid for the same length of time as is the temporary certificate.

§1725. Exceptions to Examinations.

(a) Under such rules and regulations as the Board may adopt, the examination required for a certificate to practice medicine may be waived by the Board in the following cases:

(1) A person who is licensed or otherwise legally qualified to practice medicine in any State of the United States or other jurisdiction of their discretion may be issued a certificate to practice medicine for not less than two weeks nor more than three months for the purpose of taking charge of the practice of a person licensed to practice medicine in this State during a temporary illness or absence from this State. The Board may, in its discretion, extend the temporary certificate for an additional three months, but not longer. Such certificate shall be issued upon the written request to the Board of the person licensed to practice medicine in this State, and upon the payment to the Board of a fee of $25.00. The written request shall contain a certification that the purpose of the temporary certificate is to take charge of the practice of the person licensed to practice medicine in this State during a temporary illness or absence from the State.

(2) A person who is employed in this State as an intern, resident, house physician or fellow in any hospital

accredited by the Joint Commission on the Accreditation of Hospitals or the American Osteopathic Hospital Association or who is a staff physician employed in any government institution, may be given a certificate to preactice medicine for a period of time not to exceed the length of time of employment in such hospital or governmental institution, but such certificate shall be subject to yearly renewal pursuant to Section 1722 (c) above and shall limit such practice to the hospital or institution where such person is employed.

(3) A person licensed to practice medicine by competent authority in any of the United States or any other jurisdiction approved by the Board.

(4) A person who has satisfactorily passed the examination given by the National Board of Medical Examiners, or the National Board of Examiners for Osteopathic Physicians and Surgeons.

(b) When a temporary certificate is issued and a license obtained, the physician receiving such certificate shall have authority to practice medicine in this State for the time and under the conditions specified in the temporary certificate.

§1726. Consulting Physicians from other States.

(a) The provisions of this Chapter shall not prevent persons who are licensed to practice medicine in any of the United States, or a foreign country, from coming into this State in consulation with any person licensed to practice medicine in this State.

(b) The provisions of this Chapter shall not prevent a person licensed to practice medicine in any State of the United States contiguous to Delaware and actively practicing medicine in such State, from practicing medicine within this State, subject to limitations and conditions set by the Board, but no such person shall establish an office for the practice of medicine in this State without obtaining a license.

§1727. Temporary Certificate in Emergency.

(a) The Board may issue temporary emergency certificates to practice medicine, said temporary certificates to be limited to twelve months' duration, but renewable at the discretion of the Board, to such persons as it finds qualified to practice medicine in this State during a public emergency directly relating to the availability of and the need for medical practitioners declared by the President of the United States, the Governor of the State of Delaware, or by the unanimous vote of the entire Board. The holder of any such temporary certificate, when licensed by the Director of Revenue as provided in § 1724 of this Chapter may, during the term specified therein, unless sooner revoked, practice medicine in this State, subject to all the laws of this State and to such regulations, restrictions, as the Board may make. In issuing such temporary certificate, the Board may make such regulations or restrictions as it deems best, including but not limited to, area limitations on the practice of the holder of a temporary certificate and the nature of his practice within the State.

§1728. Duty to Report.

(a) It shall be the duty of every person to whom a license is issued to practice medicine and surgery in this State to report to the Board that he is treating professionally any person to whom a certificate is issued to practice medicine and surgery for any condition as defined in §1731 (c) of Subchapter IV if, in his opinion, the person so treated may be unable to practice medicine and surgery with reasonable skill or safety. Such report shall be written and shall provide the name and address of the person treated, the exact condition found, and an opinion of whether or not action should be taken under Subchapter IV. Any person so reporting to the Board or testifying in any proceedings as a result of such report shall not be subject to, and shall be immune from, claim, suit, liability, damages, or any other recourse, civil or criminal, so long as such person acted in good faith and without malice, good faith being presumed until proven

otherwise, with malice required to be shown by the complainant.

(b) It shall be the duty of every person to whom a certificate is issued to practice medicine and surgery to report within thirty (30) days to the Board any changes in hospital privileges as a result of disciplinary action taken by hospitals or disciplinary action taken by medical societies against him.

(c) It shall be the duty of every person to whom a certificate is issued to practice medicine and surgery in this State to report to the Board information concerning medical malpractice claims settled or adjudicated to final judgment as provided in Chapter 68, Title 18.

SUBCHAPTER IV. PROCEEDINGS OF THE BOARD §1730. Powers and Duties.

(a) The Board shall have the following powers and duties in addition to the other powers and duties set forth in this Chapter.

(1) To investigate the character of all applicants for a certificate to practice medicine to determine whether or not he or she has previously engaged in unprofessional conduct defined in §1731, and whether he or she is physically and mentally capable of engaging in the practice of medicine with safety to the public.

(2) To conduct such examinations as it deems necessary and proper, not inconsistent with the laws of this State and of the United States, to determine the professional qualifications of those persons who apply for certificates to practice medicine in this State.

(3) To investigate complaints and charges of unprofessional conduct respecting any holder of a certificate to practice medicine.

(4) To investigate complaints and charges of the inability of a person to practice medicine and surgery with reasonable skill or safety to patients by reason of incompetence, or of mental illness, or mental incompetence, or physical illness, including but not limited to deterioration through the aging process, or loss of motor skill, or excessive use or abuse of drugs, including alcohol.

(5) To investigate complaints of unauthorzied practice of medicine.

(0) In accordance with the provisions of this Subchapter, to levy fines not to exceed one thousand dollars ($1000), or to restrict, revoke, or suspend or reinstate any certificate to practice medicine.

(0) To employ necessary stenographic or clerical help.

(1) To administer oaths and to compel the attendance of witnesses and the production of documents by the filing of praecipe for a subpoena with the Prothonotary of any county of this State, said subpoena to be effective throughout the entire State, service of such subpoena to be made by any sheriff of this State. Failue to obey a subpoena shall be punishable according to the Rules of the Superior Court.

(2) To require the production of and receive information regarding changes in hospital privileges as a result of disciplinary action taken by hospitals or disciplinary action taken by medical societies against any physician and act thereon as provided in (10) below.

(0) To reprimand, censure publicly or privately, or take other appropriate disciplinary action with respect to any person authorized to practice medicine in this State.

(1) To take or cause depositions to be taken as needed in any investigation, hearing or proceeding.

(12) To hold hearings pursuant to the provisions of this Subchapter.

(13) To promulgate rules and regulations not inconsistent with this Chapter or other laws of this State for the carrying out of the powers and duties required by this Subchapter. All such rules and regulations shall be published and available to anyone who desires to see them.

(14) By resolution passed by a majority of the members of the Board, to designate one or more committees, each committee to include one or more of the members of the Board and such other person or persons as may be appropriate. Unless specific vote of the Board is required by this Chapter, each such committee may have and exercise all powers and authority of the Board delegated to it by the Board, provided, however, that no such committee shall have the power or authority to fine or to refuse, grant, restrict, revoke or suspend or reinstate a certificate of authority to practice medicine.

(0) To designate such of the records of the Board as the Board may deem proper to constitute confidential records of the Board which shall not constitute public records or be available for general inspection by the public, such designation or designations as made from time to time by the Board to be effective as if constituting a specific exemption from disclosure by statute.

(A) Every member of the Board and any committees appointed thereby shall not be subject to, and shall be immune from, claim, suit, liability, damages or any other recourse, civil or criminal, arising from any act or proceeding, decision or determination undertaken so long as

i such member acted in good faith and without malice, good faith being presumed until proven otherwise, with malice required to be shown by the complainant.

soever discriminate against any applicant or person holding or applying for a certificate to practice medicine by reason of sex, race, color, creed or national origin.

SUBCHAPTER V. PROFESSIONAL REGULATION

§1731. Unprofessional Conduct and Inability to Practice Medicine and Surgery.

(a) Any person to whom a certificate to practice medicine and surgery in this State has been issued may be disciplined by the Board, by means of fine, restriction, revocation or suspension, either permanently or temporarily, of his certificate of authorization, or other action deemed appropriate by the Board, for unprofessional conduct as defined in subsection (b).

() Unprofessional conduct is hereby defined as any of the following acts:

(1) Use of any false, fraudulent or forged statement or document or use of any fradulent, deceitful, dishonest or immoral practice in connection with any certification or licensing requirements of this Act;

(2) Conviction of a felony;

(3) Any dishonorable or unethical conduct likely to deceive, defraud or harm the public;

(4) Practice of medicine under a false or assumed name;

(0) Practice of medicine without a license unless authorized by this Act;

(1) Use, distribution or prescription for use of dangerous or narcotic drugs other than for therapeutic or diagnostic purposes;

(7) Advertising of the practiceof medicine in any unethical or unprofessional manner;

(0) Solicitation or acceptance of a fee from a patient or other person by fraudulent representation that a manifestly incurable condition, as determined with reasonable medical certainty, can be permanently cured;

(1) Knowing or intentional performance of any act which, unless authorized by this Act, assists an unlicensed person to practice medicine;

(2) The willful or wanton failure to supervise a person working under his direction;

(3) Gross misconduct, negligence or incompetence in the practice of medicine;

(4) Willful violation of the confidential relations and communications of a patient;

(5) Willful failure to report to the Board as required by § 1728 (a) of this Act;

(6) Willful failure to report to the Board as required by § 1728 (b) of this Act;

(7) Willful failure to report to the Board as required by § 1728 (c) of this Act;

(8) Willful failure to divulge information relevant to authorization or competence to practice medicine to the Board or any committee thereof upon its request;

(9) The violation of any provision of this Chapter, or the violation of an order or regulation of the Board directly related to medical procedures, the performance of which would harm or injure the public or any individual.

(c) The certificate to practice medicine and surgery issued to any person shall be subject to restriction, revocation or suspension, either permanently or temporarily in case of inability of the person to practice medicine and surgery with reasonable skill or safety to patients by reason of one or more of the following:

(1) Mental illness, or mental incompetence;

(0) Physical illness, including but not limited to, deterioration through the again process, or loss of motor skill;

(1) Excessive use or abuse of drugs, including alcohol.

(d) The Board may establish by class and not by individual requirements for continuing education and/or reexamination as a condition for re-certification to practice medicine.

§ 1732. Complaints: Investigative Committees.

(a) It shall be the duty of the Board to investigate, either upon complaint or, whenever it shall think proper, upon its own motion, cases of unprofessional conduct or inability to practice medicine as defined by §1731 (a), (b) and (c) of this Subchapter, unauthorized practice of medicine and medical malpractice claims, to formulate charges against any person to whom a certificate to practice medicine in this State has been issued if the circumstances warrant, to proceed, upon due notice to respondent or such charges and of the time and place of hearing, to hear such charges upon sworn testimony and other evidence, to determine whether or not disciplinary action is warranted, and, in the event it shall find disciplinary action to be warranted, to make findings of fact and state conclusions of law with respect thereto, and take action by means of fine, restriction, revocation or suspension, either permanently or temporarily, of a certificate or authorization or take other action deemed appropriate.

(b) The Board may appoint an unbiased committee to investigate charges of unprofessional conduct and medical malpractice. Investigation by this committee shall stay within the bounds of the charge being investigated, unless the investigation itself provides good cause for additional investigation. The committee shall report to the Board its activities and findings. The Board may direct the committee to prepare a complaint against the person accused.

() The Board may appoint an unbiased committee to investigate charges of inability to practice medicine. Investigation by this committee shall stay within the bounds of the charge being investigated, unless the investigation itself provides good cause for additional investigation. The committee shall conduct an examination to determine whether the person to whom a certificate has been issued to practice medicine is fit to practice medicine with reasonable skill and safety to patients, either on a restricted or unrestricted basis. If the committee in its discretion deems a mental or physical examination necessary, the committee shall order the person to submit to such examination by a physician designated by the committee. Any person to whom a certificate has been issued to practice medicine shall, by seeking certification, be deemed to have given his consent to submit to mental or physical examination when so directed by the committee, and, further, to have waived all objections to the admissibility of the committee's report to the Board on the grounds of privileged communication; the person who submits to a diagnostic mental or physical examination as ordered by the committee shall have a right to designate another physician to be present at the examination and make an independent report to the Board. The committee shall report to the Board its activities and findings. The Board may direct the committee to prepare a complaint against the person.

() All complaints against persons to whom a certificate to practice medicine has been issued in this State shall be in writing, shall set out with particularly the essential facts constituting the alleged unprofessional conduct, inability to practice medicine, or medical malpractice.

(e) Complaints of unauthorized practice of medicine shall be reported to the Attorney General.

(f) The Attorney General shall provide legal services to the Board and its committees.

§1733. Notice.

Respondent shall be served personally with the complaint not less than 30 days nor more than 60 days prior to a hearing on the complaint, and shall be advised of the time and place of the hearing. Respondent may file with the Board a written response to the complaint within 20 days of service.

§I734. Hearings.

(a) Procedure. Charges of unprofessional conduct or inability to practice medicine under this Subchapter shall be heard upon sworn testimony. The rules of evidence applicable to the Superior Court of the State of Delaware shall be followed as far as practicable.

(b) Privacy. All hearings on complaints shall be opened to the public only at the request of the respondent.

(c) Transcript of Proceedings. A stenographic transcript of all formal hearings shall be made and respondent shall be entitled to obtain a copy of such transcript at his own expense.

(d) Quorum. No disciplianry action shall be taken unless nine voting members of the Board shall be present during all formal hearings and unless nine Board members, who must have participated in all hearings, shall vote in favor of disciplinary action.

right to defend against the charge by the introduction of evidence, the right to be represented by counsel, and the right to examine and cross-examine witnesses. He shall also have the right to issuance of subpoenas for the attendance of witnesses to appear and testify or for the production of books and records.

(f) Conduct of the Hearing. One member of the investigating committee shall examine all witnesses called in support of the charges and shall present all other evidence in support thereof and may also cross-examine any witness testifying on behalf of respondent. No member of the investigating committee who is also a member of the Board shall take part in the deliberations or decisions of the Board as to the charge.

(g) Reports. The President of the Board shall designate a member of the Board to write the draft report recommending disciplinary or other action, which report shall contain the findings of fact and conclusions of law as required. Such draft report shall be submitted to all members of the Board taking part in the hearings, and upon approval by the necessary majority shall become the final report, which report shall include the disciplinary action taken. The Board will make their discipline public if in their juagment it will serve the best interests of the public.

§1735. Revocation or Suspension of Certificate.

(a) If the Board shall determine that fine, restriction, revocation or suspension of certificate of authority to practice medicine or any other action is warranted, an order so stating the action shall be served personally or by registered mail upon the certificate holder, filed in the office of the Board, filed with the Division of Public Health of the Department of Health and Social Services and with the Director of Revenue. The order may contain such terms with respect to probation, reinstatement, length or suspension, or other terms with respect to probation, reinstatement, length of suspension, or other terms as the Board shall deem ap-

propriate in the circumstances. Upon receipt of an order of the Board revoking or suspending a certificate of authority to practice medicine, the Director of Revenue shall forthwith revoke the license to practice medicine issued by him and shall comply with the terms of any such order.

(b) The Board may take such other disciplinary action as a majority of its members shall deem appropriate in the circumstances.

(c) If less than nine members of the Board vote for the taking of any disciplinary action, the Board shall forthwith order a dismissal of the complaint and the exoneration of the certificate holder. When a complaint has been dismissed, the Board shall relieve the accused from any possible opprobrium that may attach by reason of the charges made against him by such public exoneration as the Board shall determine is necessary, if requested by the certificate holder to do so.

(d) The Director of Revenue shall not issue any license or renewal thereof to any person whose certificate to practice medicine has been revoked or suspended by the Board except in conformity with the terms and conditions of the order of revocation or suspension, or in conformity with any order of reinstatement issued by the Board, or in accordance with a final judgment in any proceeding for review instituted under the provisions of this Chapter.

§1736. Appeal Procedure.

(a) If the accused wishes to appeal a decision of the Board, he shall do so within thirty days and if no appeal is made within such thirty-day period, the action of the Board shall be final. An appeal shall be made in the same manner as is provided by the Superior Court Civil Rules for appeals from commissions, boards, and agencies.

Court in the county in which such person was practicing his profession or occupation at the time of the alleged offense. The appeal shall be on the record before the Board. The Court shall fix a time to hear such appeal at the pending or next term of Court, and may extend the hearing of such appeal.

(c) Appeals shall be heard on the original papers and exhibits, which shall constitute the record on appeal.

(d) Any authorization to practice orginally granted to the appellant shall not be revoked, suspended or otherwise curtailed until the matter is finally determined after appeal, unless the complaint directly involves inability to practice medicine and surgery with reasonable skill or safety to patients as provided in §1731 of this Chapter.

(e) Any person whose authority to practice under the provisions of this chapter has been revoked or suspended may, after the expiration of ninety days from the decision of the Superior Court, or after the expiration of ninety days following the formal decision of the Board if no appeal is taken, apply to the Board to have the same re-granted to him upon satisfactory showing that the disqualification has ceased.

§1737. Records of Hearing and Appeal.

Although a complaint of unauthorized practice may be reported to the Attorney General, the records of the Board, including original complaints, hearings on such complaints by the Board and appeals shall be confidential and shall not be released to any person; provided, however, complaints may be released upon the joint approval by the Board and the accused or upon request by the accused; hearings of the Board may be released by joint approval by the Board and the accused or upon request by the accused; and the record of any appeal, excluding the original complaint and record of the Board, may be released by the Superior Court upon motion by any of the parties thereto or by motion of the Court itself."

Section 2. § 1761 of Chapter 17, Title 24, Delaware

Code, is hereby repealed.

Section 3. Amend §1768, Chapter 17, Title 24,

Delaware Code, by striking said section in its entirety and inserting in lieu thereof a new §1768 to read as follows:

"§1768. Immunity of Persons Reviewing Medical Records, Medical Care, and Physicians' Work

(a) The members of the Board of Medical Practice or of any committee appointed thereby, and members of hospital and medical society and osteopathic medical society committees, or of a professional standards review organization established under Federal law (or other peer review committee or organization), whose function is the review of medical records, medical care, and physicians' work, with a view to the quality of care and utilitzation of hospital or nursing home facilities, home visits, and office visits shall not be subject to, and shall immune from, claim, suit, liability, damages or any other recourse, civil or criminal, arising from any act or proceeding, decision or determination undertaken, or performed or recommendation made so long as such member acted in good faith and without malice in carrying out the responsibilities, authority, duties, powers and privileges of the offices conferred by law upon them under the provisions of this Chapter (excluding only Subchapter VI of this Chapter) of this Title or any other provisions of the Delaware Law, Federal law or regulations, or duly adopted rules and regulations of the aforementioned committees, organizations, and hospitals, good faith being presumed until proven otherwise, with malice required to be shown by the complainant.

(b) The records and proceedings of any such committees or organizations as described in § 1768 (a) above shall be confidential and shall be used by such committees or organizations and the members thereof only in the exercise of the proper functions of the committee or organization and shall not be public records and shall not be available for court subpoena or subject to discovery; and no person in attendance

at a meeting of any such committee or organization shall be required to testify as to what transpired thereat. No physician, hospital, organization, or institution furnishing information, data, reports, or records to any such committee or organization with respect to any patient examined or treated by such physician or confined in such hospital or institution shall, by reason of furnishing such information, be liable in damages to any person or subject to any other recourse, civil or criminal."

Section 4. Amend Chapter 17, Title 24, Delaware

Code by redesignating the present Subchapter V and Subchapter VI and further redesignating all subsequent subchapters accordingly.

Approved June 14, 1976