§ 1760 Determination of death.
(a) An individual who has sustained either:
(1) Irreversible cessation of circulatory and respiratory functions or
(2) Irreversible cessation of all functions of the entire brain, including the brain stem,
is dead. A determination of death pursuant to this section must be made in accordance with accepted medical standards.
(b) A determination of death pursuant to this section may be made by a person certified to practice medicine under this chapter by either:
(1) Personal examination of the individual believed to be dead, or
(2) The use of information provided by an EMT-P (paramedic) using telemetric or transtelephonic means in accordance with protocols approved by the Board of Medical Licensure and Discipline, following recommendations of the Board’s Advanced Life Support Committee.
(c) This section must be applied and construed to effectuate its general purpose to make uniform the law with respect to the determination of death among states enacting it.
(d) This section may be cited as the “Uniform Determination of Death Act”.
§ 1761 Physician discontinuing business or leaving the State; death of a physician; change of physician and transfer of patient records; patient access to records.
(a) A person certified to practice medicine under this chapter who is discontinuing a medical-practice business in this State or who is leaving this State and who is not transferring patient records to another person certified to practice medicine shall notify that person’s patients of record by publishing a notice to that effect in a newspaper of daily circulation in the area where the person practices. The notice must be published at least 1 time per month over a 3-month period in advance of discontinuing the business or leaving the State and must explain how a patient can procure that patient’s patient records. All patients of record who have not requested their records 30 days before the person discontinues the medical-practice business or leaves the State must be notified by first class mail by the person to permit that person’s patients to procure their records. Any patient records that have not been procured within 7 years after the person discontinues business or leaves the State may be permanently disposed of in a manner that ensures confidentiality of the records.
(b) If a person certified to practice medicine under this chapter dies and has not transferred patient records to another person certified to practice medicine and has not made provisions for a transfer of patient records to occur upon the person’s death, a personal representative of the person’s estate shall notify the person’s patients of record by publishing a notice to that effect in a newspaper of daily circulation in the area where the person practiced. The notice must be published at least 1 time per month over a 3-month period after the person’s death and must explain how a former patient can procure the patient’s patient records. All former patients who have not requested their records 30 days after such publication must be notified by first class mail by the personal representative of the estate to permit the patients to procure their records. Any patient records that have not been procured within 7 years after the death of the person may be permanently disposed of in a manner that ensures confidentiality of the records.
(c) If a patient changes from the care of 1 person certified to practice medicine to another person certified to practice medicine, the former person shall transfer a copy of the records of the patient to the current person upon the request of either the current person or the patient. The former person may charge for the reasonable expenses of copying the patient’s records, according to a payment schedule established by the Board of Medical Licensure and Discipline. The actual cost of postage or shipping may also be charged if the records are mailed. Alternatively, if the patient and current person agree, the former person may forward to the current person a summary of the patient’s record, in lieu of transferring the entire record, at no charge to the patient. If a patient changes care from 1 person certified to practice medicine to another and fails to notify the former person, or leaves the care of the former person for a period of 7 years from the last entry date on the patient’s record and fails to notify the former person, or fails to request the transfer of records to the current person, then the former person shall maintain the patient’s records for a period of 7 years from the last entry date in the patient’s medical record, after which time the records may be permanently disposed of in a manner that insures confidentiality of the records.
(d) Patients, on their own behalf, shall have the right to obtain a copy of their medical records from any person certified to practice medicine according to a payment schedule established by the Board of Medical Licensure and Discipline. The actual cost of postage or shipping may also be charged if the records are mailed.
(e) This section does not apply to a person certified to practice medicine who has seen or treated a patient on referral from another person certified to practice medicine and who has provided a copy of the record of the diagnosis and/or treatment to the other person, or to a hospital or an agency which has provided treatment for the patient.
(f) A person certified to practice medicine or the personal representative of the estate of such person who disposes of patient records in accordance with the provisions of this section is not liable for any direct or indirect loss suffered as a result of the disposal of a patient’s records.
(g) Any person certified to practice medicine in this State who violates this section may be found by the Board to have committed unprofessional conduct, and any aggrieved patient or the patient’s personal representative may bring a civil action for damages or injunctive relief, or both, against the violator.
(h) Charges for copies of such records not susceptible to photostatic reproduction, such as radiology films, models, photographs or fetal monitoring strips shall be the full cost of such reproduction.
(i) Payment of all costs may be required by the provider or its third-party release-of-information service prior to the copies of the records being furnished. This subsection shall not apply to copies of the records requested in order to make or complete an application for a disability benefits program.
(j) The Board of Medical Licensure and Discipline shall review fees yearly.
(k) The actual cost of shipping may also be charged if the copies of the records are mailed or shipped to the requester.
(l) A person certified to practice medicine shall have 45 days from the closure of the record or the assembly of a complete record to fulfill a request for medical records unless a faster response is medically necessary.
64 Del. Laws, c. 372, § 1; 68 Del. Laws, c. 197, §§ 1, 2; 68 Del. Laws, c. 392, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 308, §§ 1, 2, 3; 73 Del. Laws, c. 59, §§ 1, 2; 75 Del. Laws, c. 141, § 1; 76 Del. Laws, c. 353, § 1; 77 Del. Laws, c. 319, § 1.;
§ 1761A Appointment of a custodian of patient records.
(a) If the Board receives a formal or informal complaint concerning access to patient records as a result of a physician’s physical or mental incapacity, or abandonment or involuntary discontinuation of a medical-practice business in this State, the Board may temporarily or permanently appoint a person or entity as custodian of the physician’s patient records, in accordance with the procedures set forth in § 1732 of this title.
(b) The custodian of patient records appointed under this section shall notify the physician’s patients of record to that effect by publishing notice in a newspaper of daily circulation in the area where the physician practiced. The notice must be published at least 1 time per month over a 3-month period after the appointment of the custodian and must explain how a patient can procure that patient’s records. All patients who have not requested their records 30 days after such publication must be notified by first-class mail by the custodian to permit the patients to procure their records. Any patient records that have not been procured within 7 years after the appointment of the custodian may be permanently disposed of in a manner that ensures confidentiality of the records.
(c) A custodian of patient records appointed under this section who disposes of patient records in accordance with the provisions of this section is not liable for any direct or indirect loss suffered as a result of the disposal of a patient’s records.
(d) The Board shall establish a registry of physicians and healthcare entities who are willing to serve as records custodians.
§ 1762 Reports of treatment of certain wounds, injuries, poisonings, or other conditions; failure to report; penalty.
(a) Every person certified to practice medicine who attends to or treats a stab wound; poisoning by other than accidental means; or a bullet wound, gunshot wound, powder burn, or other injury or condition arising from or caused by the discharge of a gun, pistol, or other firearm, or when such injury or condition is treated in a hospital, sanitarium, or other institution, the person, manager, superintendent, or other individual in charge shall report the injury or condition as soon as possible to the appropriate police authority where the attending or treating person was located at the time of treatment or where the hospital, sanitarium, or institution is located. This section does not apply to wounds, burns, poisonings, or injuries or conditions received by a member of the armed forces of the United States or the State while engaged in the actual performance of duty. A person who fails to make a report required by this section shall be fined not less than $100 nor more than $2,500.
(b) A person certified to practice medicine or other individual who makes a report pursuant to this section is immune from liability for the report, provided that the person or other individual acted in good faith and without gross or wanton negligence.
§ 1763 Reports of persons who are subject to losses of consciousness; limitation on use; failure; penalty.
Every physician attending or treating persons who are subject to losses of consciousness due to disease of the central nervous system shall report within 1 week to the Division of Motor Vehicles the names, ages and addresses of all such persons unless such person’s infirmity is under sufficient control to permit the person to operate a motor vehicle with safety to person and property.
The reports shall be for the information of the Division of Motor Vehicles in enforcing the Motor Vehicle Law. Said reports shall be kept confidential and used solely for the purpose of determining the eligibility of any person to operate a motor vehicle on the highways of this State.
A physician failing to make such a report shall be fined not less than $5.00 nor more than $50 and costs for each such report the physician fails to make.
§ 1764 State revenue.
The provisions of this chapter may not be construed to interfere with the operation of the provisions of Title 29 relating to state licenses and taxes.
§ 1764A Prescription requirements [Effective until Jan. 1, 2021].
No written prescription shall be prescribed if it does not contain the following information clearly written, clearly hand printed, electronically printed, or typed:
(1) The name, address and phone number of the prescriber;
(2) The name and strength of the drug prescribed;
(3) The quantity of the drug prescribed;
(4) The directions for use of the drug;
(5) Date of issue.
§ 1764A Prescription requirements [Effective Jan. 1, 2021].
(a) No written prescription shall be prescribed if it does not contain the following information clearly written, clearly hand printed, electronically printed, or typed:
(1) The name, address and phone number of the prescriber;
(2) The name and strength of the drug prescribed;
(3) The quantity of the drug prescribed;
(4) The directions for use of the drug;
(5) Date of issue.
(b) Notwithstanding any other provision of this section or any other law to the contrary, no person licensed under this chapter shall issue any prescription unless such prescription is made by electronic prescription from the person issuing the prescription to a pharmacy in accordance with regulations established by the Board, except for prescriptions issued:
(1) By a veterinarian.
(2) In circumstances where electronic prescribing is not available due to temporary technological or electrical failure, as set forth in regulation established by the Board.
(3) By a practitioner to be dispensed by a pharmacy located outside the State, as set forth in regulations established by the Board.
(4) When the prescriber and dispenser are the same entity.
(5) That include elements that are not supported by the most recently implemented version of the National Council for Prescription Drug Programs Prescriber/Pharmacist Interface SCRIPT Standard.
(6) By a practitioner for a drug that the Federal Food and Drug Administration requires the prescription to contain certain elements that are not able to be prescribed with electronic prescribing.
(7) By a practitioner allowing for the dispensing of a nonpatient specific prescription pursuant to a standing order, approved protocol for drug therapy, collaborative drug management or comprehensive medication management, in response to a public health emergency, or other circumstances where the practitioner may issue a nonpatient specific prescription.
(8) By a practitioner prescribing a drug under a research protocol.
(9) By practitioners who have received a waiver or a renewal thereof for a specified period determined by the Board, not to exceed 1 year, from the requirement to use electronic prescribing, pursuant to regulations established by the Board, due to economic hardship, technological limitations that are not reasonably within the control of the practitioner, or other exceptional circumstance demonstrated by the practitioner.
(10) By a practitioner under circumstances where, notwithstanding the practitioner’s present ability to make an electronic prescription as required by this subsection, such practitioner reasonably determines that it would be impractical for the patient to obtain substances prescribed by electronic prescription in a timely manner, and such delay would adversely impact the patient’s medical condition.
(c) A pharmacist who receives a written, oral or faxed prescription is not required to verify that the prescription properly falls under 1 of the exceptions under subsection (b) of this section, from the requirement to electronically prescribe. Pharmacists may continue to dispense medications from otherwise valid written, oral or fax prescriptions that are otherwise legal.
§ 1765 Construction of chapter relating to the ADA.
This chapter may not be construed to conflict with, replace, restrict, or supersede applicable provisions of the Americans with Disabilities Act (ADA) [42 U.S.C. § 12101 et seq. If a provision of this chapter is in conflict with an applicable provision of the ADA, the applicable provision of the ADA controls the interpretation of the chapter.
§ 1766 Penalties [See conflicting amendment, unable to be implemented, in 75 Del. Laws, c. 161, § 5.]
(a) A person who practices or attempts to practice medicine contrary to the provisions of this chapter is guilty of a class F felony and shall be fined not less than $1000 nor more than $5000 or imprisoned not more than 3 years, or both.
(b) A person who terminates or attempts to terminate or assists in the termination of a human pregnancy otherwise than by birth, except in accordance with subchapter IX of this chapter, is guilty of a class C felony and shall be fined not more than $5,000 and imprisoned not less than 2 nor more than 10 years.
(c) A person who violates a provision of this chapter for which a penalty is not specified is guilty of a class B misdemeanor.
(d) The Attorney General of this State or a deputy attorney general shall enforce the provisions of this chapter.
(e) The Superior Court has exclusive original jurisdiction over violations of the criminal provisions of this chapter.
20 Del. Laws, c. 40, § 17; Code 1915, § 854; Code 1935, § 935; 24 Del. C. 1953, § 1766; 49 Del. Laws, c. 234; 50 Del. Laws, c. 369, § 1; 57 Del. Laws, c. 145, § 3; 57 Del. Laws, c. 344; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 141, § 1; 75 Del. Laws, c. 161, § 5.;
§ 1767 Emergency care at the scene of an emergency.
A person certified to practice medicine under this chapter who, in good faith and without gross or wanton negligence, renders emergency care at the scene of an emergency is not liable for civil damages as a result of any acts or omissions in rendering the emergency care.
§ 1768 Immunity of boards of review; confidentiality of review board record.
(a) The Board of Medical Licensure and Discipline and the Medical Society of Delaware, their members, and the members of any committees appointed by the Board or Society; the members of any committee appointed by a certified health maintenance organization; members of hospital and osteopathic medical society committees; members of a professional standards review organization established under federal law; and members of other peer review committees or organizations whose function is the review of medical records, medical care, and physicians’ work, with a view to the quality of care and utilization of hospital or nursing home facilities, home visits, and office visits, are immune from claim, suit, liability, damages, or any other recourse, civil or criminal, arising from any act, omission, proceeding, decision, or determination undertaken or performed, or from any recommendation made, so long as the person acted in good faith and without gross or wanton negligence in carrying out the responsibilities, authority, duties, powers, and privileges of the offices conferred by law upon them, with good faith being presumed until proven otherwise, and gross or wanton negligence required to be shown by the complainant.
(b) Unless otherwise provided by this chapter, the records and proceedings of committees and organizations described in subsection (a) of this section are confidential and may be used by those committees or organizations and the members thereof only in the exercise of the proper functions of the committee or organization. The records and proceedings are not public records and are not available for court subpoena, nor are they subject to discovery. A person in attendance at a meeting of any such committee or organization is not required to testify as to what transpired at the meeting. A person certified to practice medicine, or a hospital, organization, or institution furnishing, in good faith and without gross or wanton negligence, information, data, reports, or records to such a committee or organization or a member thereof with respect to any patient examined or treated by a person certified to practice medicine or examined, treated, or confined in the hospital or institution is not, by reason of furnishing such information, data, reports, or records, liable in damages to any person or subject to any other recourse, civil or criminal. Nothing in this subsection prevents the Board from providing information, data, reports, or records in its possession to a medical, osteopathic, or other licensing board of any other state or territory of the United States regarding a person who is certified to practice medicine under this chapter, or otherwise regulated by this chapter, or who has been certified under this chapter or who has attempted to be certified under this chapter. The Board shall take reasonable steps to protect the identity of the patient in so far as such protection does not, in the opinion of the Board, adversely affect the Board’s ability to protect the public interest. The Board and its members and employees are not liable in any cause of action arising out of the providing of information, data, reports, or records provided that the person has acted in good faith and without gross or wanton negligence. This section may not be construed to create a privilege or right to refuse to honor a subpoena issued by or on behalf of the Board of Medical Licensure and Discipline pursuant to § 1731A(d) of this title, or issued by the Attorney General pursuant to § 2504(4) of Title 29, nor may it be construed to limit access to records by rights-protection agencies whose access is authorized by federal law. Notwithstanding the foregoing, in cases in which any disciplinary action by the Board was issued, the formal complaints prepared by the Delaware Department of Justice and the results of the hearings are not confidential and are public records except insofar as they contain confidential patient information or are otherwise subject to an exception under Chapter 100 of Title 29.
24 Del. C. 1953, § 1768; 57 Del. Laws, c. 492; 58 Del. Laws, c. 50; 58 Del. Laws, c. 226; 60 Del. Laws, c. 462, § 3; 62 Del. Laws, c. 90, § 2; 66 Del. Laws, c. 358, § 1; 67 Del. Laws, c. 226, § 18; 69 Del. Laws, c. 129, § 1; 71 Del. Laws, c. 102, § 25; 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 319, § 1; 77 Del. Laws, c. 325, §§ 20, 21.;
§ 1769 Disclosure of laboratory costs.
A person certified to practice medicine who bills patients or third-party payors for individual tests or test series administered by any private or hospital clinical laboratory shall disclose on the bill the name of the laboratory, the amount or amounts charged by the laboratory for individual tests or test series and the amount of any procurement or processing charge made by the person certified to practice medicine for each test or test series. A test or test series performed at a state laboratory or at another laboratory at which no charge is made must be noted on the bill.
§ 1769A Required warning to pregnant women of possible effects of using alcohol, cocaine, or other narcotics.
(a) A person certified to practice medicine who treats, advises, or counsels pregnant women for matters relating to the pregnancy shall post warnings and give written and verbal warnings to all pregnant women regarding possible problems, complications, and injuries to themselves and/or to the fetus from the consumption or use of alcohol or cocaine, marijuana, heroin, and other narcotics during pregnancy.
(b) A person who treats, advises, or counsels pregnant women pursuant to subsection (a) of this section and who is certified to practice medicine may designate a licensed nurse to give the warnings required by this section.
(c) The Director of the Division of Public Health shall prescribe the form and content of the warnings required pursuant to this section.
§ 1769B Treatment or examination of minors.
(a) A parent, guardian or other caretaker, or an adult staff member, shall be present when a person licensed to practice medicine under this chapter provides outpatient treatment to a minor patient who is disrobed or partially disrobed or during an outpatient physical examination involving the breasts, genitalia or rectum, regardless of sex of the licensed person and patient, except when rendering care during an emergency. When using an adult staff member to observe the treatment or examination, the adult staff member shall be of the same gender as the patient when practicable. The minor patient may decline the presence of a third person only with consent of a parent, guardian or other caretaker. The minor patient may request private consultation with the person licensed to practice medicine without the presence of a third person after the physical examination. Every hospital and long-term care facility that provides treatment to minors shall develop and implement policies regarding the treatment of minor patients that are consistent with the purposes of this section and will submit those policies for approval by the Department of Health and Social Services. Violations of approved policies will be treated as a violation of this section.
(b) When a minor patient is to be disrobed, partially disrobed or will undergo a physical examination involving the breasts, genitalia or rectum, a person licensed to practice medicine under this chapter shall provide notice to the person providing consent to treatment of the rights under this section. The notice shall be provided in written form or be conspicuously posted in a manner in which minor patients and their parent, guardian or other caretaker are made aware of the notice. In circumstances in which the posting or the provision to the patient of the written notice would not convey the right to have a chaperone present, the person licensed to practice medicine shall use another means to ensure that the patient or person understands the right under this section.
(c) For the purposes of this section, “minor” is defined as a person 15 years of age or younger, “adult staff member” is defined as a person 18 years of age or older who acting under the direction of the licensed person or the employer of the licensed person or who is otherwise licensed under this chapter, “hospital” has the meaning prescribed by Chapter 10 of Title 16, and “long-term care facility” has the meaning prescribed by Chapter 11 of Title 16.
(d) The person licensed under this chapter that provides outpatient treatment to a minor pursuant to this section shall, contemporaneously with such treatment, note in the child’s medical record the name of each person present when such treatment is being provided.
§ 1769C Physician practices with multiple offices.
If a physician practice has multiple offices, a physician member of that practice shall visit each office periodically, as frequently as needed but at least once per month, for purposes of ensuring that the office is managed properly and patient care is appropriate.
§ 1769D Telemedicine and telehealth.
(a) Physicians may practice telemedicine and telehealth. Provided that telemedicine shall not be utilized by a physician with respect to any patient in the absence of a physician-patient relationship, except for the instances in subsection (k) of this section.
(b) Physicians who utilize telemedicine shall, if such action would otherwise be required in the provision of the same service not delivered via telemedicine, ensure that a proper physician-patient relationship is established either in-person or through telehealth which includes but is not limited to:
(1) Fully verifying and authenticating the location and, to the extent possible, identifying the requesting patient;
(2) Disclosing and validating the provider’s identity and applicable credential or credentials;
(3) Obtaining appropriate consents from requesting patients after disclosures regarding the delivery models and treatment methods or limitations, including informed consents regarding the use of telemedicine technologies as indicated in paragraph (b)(5) of this section;
(4) Establishing a diagnosis through the use of acceptable medical practices, such as patient history, mental status examination, physical examination (unless not warranted by the patient’s mental condition), and appropriate diagnostic and laboratory testing to establish diagnoses, as well as identify underlying conditions or contra-indications, or both, to treatment recommended or provided;
(5) Discussing with the patient the diagnosis and the evidence for it, the risks and benefits of various treatment options;
(6) Ensuring the availability of the distant site provider or coverage of the patient for appropriate follow-up care; and
(7) Providing a written visit summary to the patient.
(c) Treatment and consultation recommendations made in an online setting, including issuing a prescription via electronic means, will be held to the same standards of appropriate practice as those in traditional (encounter in person) settings.
(d) The physician treating a patient through telemedicine must maintain a complete record of the patient’s care which must follow all applicable state and federal statutes and regulations for recordkeeping, confidentiality, and disclosure to the patient.
(e) Telemedicine shall include, at such time as feasible and when appropriate, utilizing the Delaware Health Information Network (DHIN) in connection with the practice.
(f) Without a prior and proper patient-provider relationship, as provided in subsection (b) of this section, providers are prohibited from issuing prescriptions solely in response to an Internet questionnaire, an Internet consult, or a telephone consult.
(g) Prescriptions made through telemedicine and under a physician-patient relationship may include controlled substances, subject to limitations as set by the Board.
(h) Physicians using telemedicine technologies to provide medical care to patients located in Delaware must, prior to a diagnosis and treatment, either provide:
(1) An appropriate examination in-person;
(2) Have another Delaware-licensed practitioner at the originating site with the patient at the time of the diagnosis;
(3) The diagnosis must be based using both audio and visual communication; or
(4) The service meets standards of establishing a patient-physician relationship included as part of evidenced-based clinical practice guidelines in telemedicine developed by major medical specialty societies.
(i) After a physician-patient relationship is properly established in accordance with this section, subsequent treatment of the same patient with the same physician need not satisfy the limitations of this section.
(j) Nothing in this section shall be construed to limit the practice of radiology or pathology.
(k) Telemedicine may be practiced without a physician-patient relationship during:
(1) Informal consultation performed by a physician outside the context of a contractual relationship and on an irregular or infrequent basis without the expectation or exchange of direct or indirect compensation;
(2) Furnishing of medical assistance by a physician in case of an emergency or disaster if no charge is made for the medical assistance; or
(3) Episodic consultation by a medical specialist located in another jurisdiction who provides such consultation services on request to a licensed health-care professional.