CHAPTER 226

FORMERLY

HOUSE SUBSTITUTE NO. 1

TO

HOUSE BILL NO. 111

AS AMENDED BY

HOUSE AMENDMENT NO. 1 AND SENATE AMENDMENTS NO. 2 AND 5

AN ACT TO AMEND CHAPTER 17, TITLE 24, OF THE DELAWARE CODE RELATING TO THE MEDICAL PRACTICES ACT.

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

Section 1. Amend Section 1710, Chapter 17 Delaware Code, Title 24 by deleting subsections (b), (c), and (d), and substituting in lieu thereof new subsections (b), (c), (d) to read as follows:

"(b) The Board shall consist of 16 voting members, 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, 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 Sussex County, 1 from among all osteopathic physicians licensed to practice medicine in this State, and 5 public members. Said public members shall not be or ever have been licensed in any health related field; shall not be a member of the immediate family of someone licensed in any health related field; shall not be employed by a company engaged in a directly health related business; and shall not have a material financial Interest in the providing of goods and services to persons engaged in the practice of medicine.

(c) The Medical Society of Delaware and the Delaware State Osteopathic Medical Society may submit lists of their resident members and any recommendations to the Governor by January 1 of each year under the seal and signed by the Secretary of the Society in order to aid the Governor in the appointment of new members of the Board.

(d) Every person who is a member of the Board of Medical Practice on the date of this chapter's enactment into law shall continue to serve until the expiration of his term. Any vacancy occurring in the membership of the former Board shall be filled in accordance with the provisions of this chapter."

Section 2. Amend Section 1710, Chapter 17, Delaware Code, Title 24 by deleting subsection (e) and adding a new subsection (e) to read as follows:

"Upon enactment of this Chapter into law, the Governor shall appoint to the Board 1 public member whose principle place of residence is in New Castle County and whose term shall expire 1 year after his initial appointment; 1 public member whose principle place of residence is in Kent County and whose term shall expire 2 years after his initial appointment; and, 1 public member whose principle place of residence is Sussex County and whose term shall expire 3 years after his initial appointment. At each annual appointment made after the initial classification and appointment of these three public members, the appointment shall be for a full term of 3 years to succeed the member whose term has expired."

Section 3. Amend Section 1710, Chapter 17, Title 24 of the Delaware Code by deleting subsection (g) and adding a new subsection (g) to read as follows:

"(g) The Governor shall fill vacancies on the Board and may remove any member of the Board after hearing for cause for neglect of the duties required by this chapter, or on recommendation of the Board for unprofessional or dishonorable conduct."

Section 4. Amend Section 1710, Chapter 17, Title 24 of the Delaware code by deleting subsections (h), (j) and (k) and by adding new subsections (h), (f) and (j) to read as follows:

"(h) No member of the Board shall serve more than 3 full consecutive terms, which shall not be diminished by serving an unexpired term as provided in subsection (g) of this section. Upon serving 3 full consecutive terms, a former member shall be eligible for reappointment to the Board no earlier than 1 year after the expiration of the last term served on the Board by that former member. A term is defined as a period of 3 years.

(i) No member of the Board, while serving on the Board, shall be an officer of any State or local professional Medical Society, or Osteopathic Medical Society.

(j) No member of the Board of Medical Practice, while serving on the Board, shall be a member of the Board of Directors of a professional review organization."

Section 5. Amend Section 1711, Chapter 17, Title 24 of the Delaware Code by deleting Subsection (c) in its entirety and by adding new Subsections (c) and (d) to read as follows:

"(c) Meetings of the Board shall be held at least 8 times a year. The meetings shall be at such public place and time as the Board shall determine subject to guidelines established or approved by the Division of Professional Regulation.

(d) Unless otherwise provided in this chapter, meetings of the Board shall be open to the public and may only be closed in accordance with the provisions contained in Section 10004 of Title 29."

Section 6. Amend Section 1712, Chapter 17, Title 24 of the Delaware Code by substituting "Nine" for the word "Seven" in the first sentence of subsection (a); by substituting the number "7" for "5" in the second sentence of subsection (a); and by substituting the number "7" for "8" in subsection (b).

Section 7. Amend Section 1720, Chapter 17, Title 24 of the Delaware Code by adding the words "or its equivalent," after the words "Doctor of Osteopathy" and before the word "from" in subsections (a)(3)a., (a)(3)b., and (a)(3)c. In addition, delete subsection (d) and add a new subsection (d) as follows:

The Board, by the affirmative vote of 12 of Its members, may waive any of the above provisions if it finds all of the following:

1. The applicant's education, training, qualifications, and conduct have been sufficient to overcome the deficiency or deficiencies in meeting the requirements of this section; and

2. The applicant is capable of practicing medicine and surgery in a competent and professional manner; and

3. The granting of the waiver will not endanger the public health, safety or welfare."

Section 8. Amend Section 1730, Chapter 17, Title 24 of the Delaware Code by deleting paragraphs (a)(1), (3), (4), (5), (8), (10), (13), (15), and by substituting in lieu thereof new paragraphs (a)(1), (3), (4), (5), (8), (10), (13), (15) to read as follows:

"(1) To investigate through the Executive Director of the Board, hereafter referred to in this chapter as the Executive Director, 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 as defined in §1731 of this title, and whether he or she is physically and mentally capable of engaging in the practice of medicine with safety to the public;

(3) To investigate through the Executive Director complaints and charges of unprofessional conduct respecting any holder of a certificate to practice medicine;

(4) To investigate through the Executive Director 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 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 through the Executive Director complaints of unauthorized practice of medicine;

(8) To administer oaths and to compel the attendance of witnesses and the production of documents by the filing of a praecipe for a subpoena with the Prothonotary in 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. Failure to obey a subpoena shall be punishable according to the Rules of the Superior Court;

(10) To reprimand, censure or take other appropriate disciplinary action with respect to any person authorized to practice medicine in this State;

(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 made available to the public upon request.

(15) To designate records of the Board confidential and exempt from public disclosure only in accordance with Section 10002 of Title 29;"

Section 9. Amend Section 1730 (a) (17) of Title 24 of the Delaware Code by striking the word "physician's" wherever it appears and by substituting in lieu thereof the word "physicians'."

Section 10. Amend Section 1731, Chapter 17, Title 24 of the Delaware Code by striking in their entirety subsections (b)(10), (11), and (16) and by substituting in lieu thereof new subsections (b)(10), (11), and (16) to read as follows:

"(10) The failure to provide adequate supervision to a person working under his direction;

(11) Misconduct, incompetence, or gross negligence in the practice of medicine;

(16) Unjustified failure upon request to divulge information relevant to authorization or competence to practice medicine to the Board, any committee thereof, the Executive Director or to anyone designated by him to request such information."

Section 11. Amend Section 1731, Chapter 17, Title 24 of the Delaware Code by deleting subsection (e) and substituting a new subsection (e) to read as follows:

"(e) No person who files a complaint with the Board or any of its members, the Executive Director, or the Division of Professional Regulation, or who provides information to the Board, the Executive Director, or the Division of Professional Regulation regarding any complaint, or who testifies as a witness at any hearing before the Board or any of its hearing panels or committees concerning unprofessional conduct, as that term is defined in subsection (b) of this section, by a person licensed to practice medicine and surgery in this State, or concerning the inability of such licensee to practice medicine for the reasons set forth in subsection (c) of this section, shall be held liable in any cause of action arising out of the filing of such complaint, the providing of such Information or the giving of such testimony, provided that such person does so in good faith and without malice."

Section 12. Amend Section 1732, Chapter 17, Title 24 of the Delaware Code by deleting the existing section and by substituting in lieu thereof a new section 1732 to read as follows:

11732. Executive Director; investigations.

(a) It shall be the duty of the Executive Director: To investigate either by complaint or, whenever appropriate, upon his own or the Board's 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 by means of bringing a formal complaint against any person to whom a certificate to practice medicine In this State has been issued if the circumstances warrant; to present all such formal complaints to the Board in accordance with the procedures set forth In this subchapter,

(b) The Executive Director shall appoint at least one unbiased member of the Board to assist him in investigations concerning charges of unprofessional conduct and medical malpractice, The Executive Director shall also appoint investigators from the Division of Professional Regulation to participate in said investigations. All such investigations shall stay within the bounds of the charge being investigated, unless the Executive Director determines that the investigation itself provides good cause for additional investigation. The Executive Director shall report to the Board his activities and provide his recommendation as to whether a formal complaint should be Issued. The Board may then request that the Executive Director prepare a formal complaint against the person accused.

(c) The Executive Director shall appoint at least one unbiased member of the Board to assist him in investigations concerning charges of inability to practice medicine. The Executive Director shall also appoint investigators from the Division of Professional Regulation to participate in said investigations. All such investigations shall stay within the bounds of the charge being investigated, unless the Executive Director determines that the investigation itself provides good cause for additional investigation. The Executive Director, or his designee, 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 Executive Director in his discretion deems a mental or physical examination necessary, he shall order the person to submit to such examination to be conducted by a physician designated by the Executive Director. 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 Executive Director, and, further, to have waived all objections to the admissibility of the examination 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 Executive Director shall have a right to designate another physician to be present at the examination and make an independent report to the Board. The Executive Director shall report to the Board his activities and provide his recommendation as to whether a format complaint should be issued. The Board may then direct the Executive Director to prepare a complaint against the person accused.

Section 13. Amend Section 1733, Chapter 17, Title 24 of the Delaware Code by deleting Section 1733 in its entirety and by inserting a new section to read as follows:

§1733. Complaints; notice of hearing.

(a) Any member of the public, the Board, or the Executive Director may prefer any charge or complaint concerning any aspect of the practice of medicine against an Individual to whom a certificate to practice medicine in this State has been issued. Any complaining party shall be entitled to legal representation at such party's expense at any and all stages of proceedings hereunder.

(b) The Executive Director shall investigate all such Charges or complaints which appear to be valid and well-founded according to the procedures set forth in §1732 of this chapter.

(c) Ail complaints against persons to whom a certificate to practice medicine has been Issued in this state shall be in writing, signed, and shall set forth with particularity the essential facts constituting the alleged unprofessional conduct, medical malpractice or inability to practice medicine. The Executive Director in his discretion may maintain the confidentiality of the complainant from the Board. In the absence of an Executive Director or Acting Executive Director, the Secretary of Administrative Services shall exercise such discretion. The Executive Director may investigate specific oral charges- or complaints at his discretion, provided the complaining party is identified.

(c) When, after investigation by the Executive Director, the Board determines to accept and lodge a formal written complaint against an individual to whom a certificate to practice medicine has been issued, the respondent shall be served Personally or by certified mail with a copy of the complaint not less than 30 days nor more than 60 days prior to a hearing on the complaint.

(d) Each complaint shall describe in detail the allegations upon which it is based; shall inform the respondent of the date, time and place that the hearing will be held; shall state the law(s) or regulation(s) allegedly violated and the statutory or regulatory authority giving the Board authority to act; shall indicate that the respondent has a right to be represented by counsel at the hearing and to present evidence on his own behalf; and shall inform the respondent that the Board must base Its decision solely upon evidence received at the hearing. The respondent shall have the right to file a written response with the Board within 20 days of service of the complaint

(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 its committees, and the Executive Director."

Section 14. Amend Section 1734, Chapter 17, Title 24 by deleting said section and by substituting in lieu thereof a new section to read as follows:

§1734. Hearings.

(a) Procedure. After the Board accepts a complaint which has been investigated by the Executive Director In accordance with §1732 of this chapter, it shall appoint a hearing panel, composed of 3 unbiased members of the Board, who shall hear all evidence concerning charges of unprofessional conduct or inability to practice medicine alleged in the complaint. The hearing panel shall convene In executive session to hear the evidence no more than 90 days after the Board accepts a formal complaint unless it, in its discretion, grants a continuance of the hearing date. All evidence at the hearing shat) be taken under sworn oath or affirmation, but technical rules of evidence shall not apply. After all evidence has been heard by the hearing panel, it shall make a written statement of its findings of fact and conclusions of law. Only such evidence as was presented at the hearing may be considered by the hearing pane) in reaching its findings of fact and conclusions of law. The findings of fact 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. If the hearing panel finds that the allegations made in the complaint are not supported by the evidence, it shall so indicate to the Board together with Its recommendation that no further action be taken and that the physician be exonerated of all charges. Should a majority of the members of the Board who consider the matter, excluding any members who participate in the investigation of the complaint or on the hearing panel, or who are otherwise biased, vote to accept the hearing panel's conclusions of law and recommendation, then no further proceeding shall be held before the Board. However, should a majority of the members of the Board who consider the matter, excluding any members who participated in the investigation of the complaint, or on the hearing panel, or who are otherwise biased, vote to reject the hearing panel's conclusions of law and recommendation, then a formal hearing shall be held before the Board to enable the Board to make its own conclusions of law and to determine what discipline, if any, should be imposed. In such a case, the hearing panel's findings of fact shall be binding upon 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 who participated in the investigation, or on the hearing panel, or who are otherwise biased, will consider the statement of the findings of fact and conclusions of law made by the hearing panel at a formal hearing.

Such formal hearing Is to be held within sixty days after the issuance of the written statement of the Hearing Panel; provided, however, that if the Hearing Panel finds that the physician currently presents a clear and imminent danger to the public health by his continued practice of medicine, then the full Board may meet for such formal hearing as soon as possible upon three days written notice of such hearing being provided to the physician or his attorney. A majority but no less than 7 board members who consider the matter shall be necessary in order for any disciplinary action to be taken. Upon reaching its conclusions of law and determining the appropriate disciplinary action, if any, the Board shall issue a written decision and order In accordance with §10128 of Title 29, which shall be signed by the Board's President.

(b) Open hearings. All hearings on complaints conducted by a hearing panel shall be open to the public only at the request of the respondent. All formal hearings on complaints before the Board shall be open to the public in accordance with provisions of Section 10004 of Title 29.

(c) Transcript of proceedings. A stenographic transcript of all formal hearings of the Board and of any hearing of its hearing panels shall be made, and the respondent shall be entitled upon request to obtain a copy of such transcript at his own expense. In the event the hearing panel should determine that the allegations of the complainant are supported by the evidence and the Board shall proceed to formal hearing on the charges complainant also shall be entitled upon request 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 present his own witnesses and to Introduce other evidence to the hearing panel. The respondent shall also have the right to compel Issuance of a subpoena for the attendance of witnesses to appear and testify or for the production of books, records or other documents before the hearing panel.

(e) Conduct of hearing before the hearing panel. The Executive Director, or his designee, or a staff attorney from the Office of the Attorney General shall present evidence in support of the allegations contained in the formal complaint. He may call witnesses and he may cross-examine any witnesses called on behalf of the respondent. No member of the Board who participated in the investigation of the matter under consideration shall sit on the hearing panel or take part In the deliberations or decisions of the hearing panel. In order for the panel to find that a fact or allegation is supported by evidence, the panel members must unanimously agree that such fact or allegation is supported by the evidence. The hearing panel shall make its findings of fact and conclusions of law based solely upon the evidence presented to it at the hearing.

(f) Conduct of formal hearing before the Board. The findings of fact 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 the charges In the complaint. The Board shall deliberate and reach its own conclusions of law based upon the finding of fact made by the hearing panel. It shall consider the hearing panel's conclusions of law as well, however, It shall not be bound by them. After reaching its conclusions of law, the Board shall determine what disciplinary action, if any, is appropriate based solely upon the record before It. It shall be necessary for a majority of the Board members considering the case before It to vote In favor of the conclusions of law rendered by the Board. It shall also be necessary for a majority but no less than 7 Board members considering the case to vote in favor of any disciplinary action taken by the Board. The Executive Director, any Board members who participated in •the investigation of the matter under consideration, the members of the hearing panel, and any members who are otherwise biased, shall be ineligible to participate in deliberations of the Board concerning any disciplinary matter investigated by the Executive Director.

(g) Written decision and order. Upon reaching its final decision and determining the appropriate disciplinary action, if any, the Board shall issue a written opinion and order In accordance with Section 10128 of Title 29. Such opinion and order shall be served in person upon the physician charged."

Section 15. Amend Section 1735, Chapter 17, Title 24 of the Delaware Code by deleting subsections (b),(c) in their entirety and by redesignating current subsection (d) as new subsection (b).

Section 16. Amend Section 1736, Chapter 17, Title 24 of the Delaware Code by deleting Section 1136 In Its entirety and by substituting a new Section 1736 to read as follows:

§1736. Appeal Procedures.

(a) Any person against whom a decision of the Board has been rendered may appeal such decision to the Superior Court in the county in which such person was practicing medicine or surgery at the time of the offense.

(b) The appeal shall be filed within 30 days of the day the written decision and order of the Board is Issued.

(c) The appeal shall be on the record of the Board hearing without a trial de novo.

(d) Any Board action revoking, suspending or otherwise curtailing an Individual's authorization to practice shall not be stayed upon appeal unless so ordered by the Superior Court.

(e) Any person whose authority to practice under this chapter has been revoked or suspended may, after the expiration of 90 days from the decision of the Superior Court, or the Supreme Court if the decision of the Superior Court is appealed, or after 90 days from the decision and order of the Board if no appeal Is taken, apply to the Board to have the same regranted to him for good cause shown."

Section 17. Amend Section 1737, Chapter 17, Title 24 of the Delaware Code by deleting said section in its entirety and by substituting in lieu thereof a new section to read as follows:

§1737. Confidentiality of Records.

Release of all records of the Board shall be governed by the provisions of the Freedom of Information Act, Title 29, ch. 100."

Section 18. Amend Section 1768, Chapter 17, Title 24 of the Delaware Code by inserting in subsection (b) at the beginning of the first sentence thereof the following:

"unless otherwise provided by this Chapter."

Section 19. Nothing contained in this Act shall effect any pending investigation or disciplinary action which was commenced prior to its enactment into law.

Approved June 7, 1990.