CHAPTER 327

FORMERLY

SENATE BILL NO. 228

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 17, TITLE 24, DELAWARE CODE, RELATING TO DISCIPLINARY ACTION AGAINST PHYSICIANS AND MEMBERSHIP ON THE BOARD OF MEDICAL PRACTICE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend §1730, Chapter 17, Title 24, Delaware Code, by adding thereto a new paragraph (16) to read as follows:

"(16) To designate three members of the Board to act as a hearing panel for the purposes of hearing charges of unprofessional conduct as set forth in §1731(b) of this Title or inability to practice medicine as set forth in 1731(c) of this Title."

Section 2. Amend §1732(a), Chapter 17, Title 24, Delaware Code, by striking said subsection (a) in its entirety and substituting in lieu thereof a new subsection (a) to read as follows:

"(a) It shall be the duty of the Board to investigate either by complaint or whenever it shall think appropriate, upon its own motion, cases of unprofessional conduct or inability to practice medicine as defined by subsections (b) and (c) of §1731 of this Title, unauthorized practice of medicine and medical malpractice, 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 to a hearing in accordance with the procedures set forth in §1734 of this Title, to determine what disciplinary action is appropriate in accordance with the provisions of §1734 of this Title and to take action by means of fine, restriction, revocation, or suspension, either permanently or temporarily of a certificate to practice medicine."

Section 3. Amend §1733, Chapter 17, Title 24, Delaware Code, by inserting the words "or by certified mail" immediately after the word "personally" and before the word "with" as they appear in said Section.

Section 4. Amend §1734, Chapter 17, Title 24, Delaware Code, by striking said Section in its entirety and substituting in lieu thereof a now §1734 to read as follows:

"§1734. Hearings

(a) Procedure - After the Board accepts a formal Complaint which has been prepared by a Board appointed investigate Committee, the Board shall appoint a hearing panel, composed of three members of the Board, who shall hear all evidence concerning charges of unprofessional conduct or inability to practice medicine alleged in the Complaint. Such evidence shall be taken upon sworn testimony. The rules of evidence of Superior Court of this State shall be followed as far as practicable. After all evidence has been heard by the hearing panel, it shall make a written statement of its findings of facts and conclusions of law. The findings of facts made by the hearing panel shall be binding on the parties appearing before it and shall also be adopted by and binding upon the Board. The hearing panel shall also make a non-binding recommendation of appropriate disciplinary action to the Board. If the hearing panel finds that the allegations made in the complaint are not supported by the evidence, it shall exonerate the physician appearing before it of all charges and there shall be no further proceedings before the Board. If the hearing panel finds that any or all of the factual allegations made in the Complaint are supported by the evidence it has considered, the board, excluding members of the hearing panel and any investigative committee members, will consider the statement of the findings of facts and conclusions of law made by the hearing panel at a formal hearing. Such formal hearing is to be held within sixty (60) days after the issuance of the written statement of the hearing panel. At such formal hearing, the Board shall meet to make its own conclusions of law and to determine what disciplinary action, if any, is appropriate based upon the findings of facts made by the hearing panel. A majority vote of no less than six board members who consider the matter shall be necessary in order for any discipilinary action to be taken. Upon the reaching of conclusions of law and determination of the appropriate disciplinary action, the Board shall issue a written opinion.

(b) Privacy - All hearings on Complaints before a hearing panel and before the Board shall be open to the public only at the request of the respondent.

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

(d) Rights of Respondent - The respondent shall have the right to be represented by counsel, both before any hearing panel and before the Board. He shall have the right to cross-examine all witnesses who are presented against him at the hearing panel and the right to introduce evidence to the hearing panel. He shall also have the right to issuance of a subpoena for the attendance of witnesses to appear and testify or for the production of books and records before the hearing panel.

(e) Conduct of Hearing Before the Hearing Panel - A member of the investigative committee or a member of the staff of the Office of the Attorney General shall examine witnesses called in support of the allegations made in the Complaint and he shall cross-examine any witnesses testifying on behalf of the respondent. No member of the investigative committee shall take part in the deliberations or decisions of the hearing panel. In order for the hearing panel to find that a fact or allegation is supported by evidence, it is necessary that all three members of the hearing panel agree that such fact or allegation is supported by the evidence.

(f) Conduct of Hearing Before the Board - The findings of facts made by the hearing panel shall be binding upon and adopted by the Board at any formal hearing it shall conduct. The Board shall take no additional evidence regarding charges made in the Complaint. The Board shall then deliberate and reach conclusions of law based upon the findings of facts made by the hearing panel and also determine what disciplinary action, if any, is appropriate based upon the facts found by the hearing panel, and the Board's conclusions of law. It shall be necessary for a majority of the board members considering the case before it to vote in favor of any conclusions of law made by the Board. It shall also be necessary for a majority of no less than six Board members considering the case to vote in favor of any disciplinary action taken by the Board. No member of a hearing panel shall be eligible to participate in the consideration of the same matter by the Board. No member of the investigative committee shall participate in deliberations of the Board concerning the matter presented to the Board by the investigative committee.

(g) Reports - The President of the Board shall designate a member of the Board to write a draft report embodying the findings of fact of the hearing panel and the conclusions of law made by the Board. The Board will make their disciplinary action public if in their judgment it will serve the best interest of the public."

Section 5. Amend §1710(i), Chapter 17, Title 24, Delaware Code, by striking said subsection (i) in its entirety and substituting in lieu thereof a new subsection (i) to read as follows:

"(i) No member of the Board shall serve more than four full consecutive terms, which shall not be diminished by serving an unexpired term as provided in subsection (h) of this Section. Upon serving four full consecutive terms, a former member shall be eligible for reappointment to the Board no earlier than three years after the expiration of the last term served on the Board by that former member. A term is defined as a period of three years."

Approved July 2, 1984.