MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Judiciary A
By: Representatives Cockerham, Currie
AN ACT TO BE KNOWN AS THE "PHYSICIAN PROTECTION ACT OF 2018"; TO CREATE THE POSITIONS OF HEARING OFFICERS FOR THE STATE BOARD OF MEDICAL LICENSURE; TO STATE THE POLICY CONCERNING THE DUTIES OF THE HEARING OFFICERS; TO PROVIDE THAT HEARING OFFICERS WILL REVIEW CASES FROM THE LAST THREE YEARS TO CORRECT ACTIONS OF THE BOARD; TO REQUIRE ALL MEMBERS OF THE BOARD TO ANNUALLY OBTAIN SIX HOURS OF TRAINING IN JUDICIAL AND DISCIPLINARY PROCESS; TO AMEND SECTIONS 73-25-27, 73-25-28, 73-25-29, 73-25-30 AND 73-25-31, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE ATTORNEY GENERAL'S OFFICE WILL APPOINT THREE IMPARTIAL HEARING OFFICERS TO CONDUCT DISCIPLINARY HEARINGS IN LIEU OF THE BOARD; TO AUTHORIZE MEDICAL LICENSEES TO HAVE THEIR DISCIPLINARY MATTERS HEARD BY A HEARING OFFICER RATHER THAN THE BOARD; TO PROVIDE THAT LICENSEES MAY ACCEPT RESPONSIBILITY FOR THE ALLEGATIONS WHILE RETAINING THE RIGHT TO A HEARING AND APPEAL; TO INCREASE THE STANDARD OF PROOF TO CLEAR AND CONVINCING EVIDENCE IN ORDER TO FIND A LICENSEE GUILTY OF AN OFFENSE; TO PROVIDE THAT THE EXECUTIVE DIRECTOR OF THE BOARD WILL AFFIRM OR REJECT THE HEARING OFFICER'S DETERMINATION; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Physician Protection Act of 2018."
SECTION 2. (1) By establishing the positions of hearing officers for the State Board of Medical Licensure as provided in Section 75-25-27, the State of Mississippi intends to ensure that physicians brought before this board are provided with impartial and basic legal protections and are protected against unduly harsh, arbitrary or capricious rulings in disciplinary actions of the board.
(2) A hearing officer shall review any disciplinary proceedings or actions taken over the three (3) years preceding the effective date of this act to correct inappropriately harsh, capricious, arbitrary or unethical action taken by the board during that period.
SECTION 3. All members of the State Board of Medical Licensure shall be required to annually obtain six (6) hours of training in judicial and disciplinary process that is overseen and approved by the board's attorney.
SECTION 4. Section 73-25-27, Mississippi Code of 1972, is amended as follows:
73-25-27. The Attorney
General's Office shall appoint three (3) impartial hearing officers to conduct
disciplinary hearings in lieu of the board. The State Board of Medical
Licensure and the hearing officers, after notice and opportunity for a
hearing to the licentiate, * * * are authorized to suspend or revoke
for any cause named in this chapter any license * * * that the board has issued, or the
renewal thereof, that authorizes any person to practice medicine, osteopathy,
or any other method of preventing, diagnosing, relieving, caring for, or
treating, or curing disease, injury or other bodily condition. The procedure
for suspension of a license for being out of compliance with an order for
support, and the procedure for the reissuance or reinstatement of a license
suspended for that purpose, and the payment of any fees for the reissuance or
reinstatement of a license suspended for that purpose, shall be governed by
Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict
between any provision of Section 93-11-157 or 93-11-163 and any provision of
this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may
be, shall control.
The notice shall be effected
by registered mail or personal service setting forth * * *, in substantial detail, all
reasons for the proposed action and fixing a date not less than thirty (30)
days or more than sixty (60) days from the date of the mailing or the service,
at which time the licentiate shall be given an opportunity for a prompt * * *, fair and unbiased hearing.
The licentiate may elect for a hearing officer to conduct the hearing in lieu of the board. To do so, the licentiate must submit a written request to the executive director of the board within thirty (30) days of receiving the notice. If so elected, the time for fixing the hearing may be extended up to but not longer than sixty (60) days from the date the executive director receives the written request, and the licentiate shall select one (1) of the three (3) hearing officers to conduct the hearing.
For the purpose of the
hearing the board and the hearing officers, acting by and through * * * the board's executive office, may
subpoena persons and papers on * * * their own behalf and on behalf of
the licentiate, including records obtained under Section 73-25-28 and Section
73-25-83(c), may administer oaths and the testimony when properly transcribed,
together with the papers and exhibits, shall be admissible in evidence for or
against the licentiate. At the hearing the licentiate may appear by counsel
and personally in his or her own behalf. Any person sworn and examined
as a witness in the hearing shall not be held to answer criminally, nor shall
any papers or documents produced by the witness be competent evidence in any
criminal proceedings against the witness other than for perjury in delivering
his or her evidence. The board * * * and the hearing officers,
in the conduct of any hearing, shall not be bound by strict laws or rules of
evidence. The board and the hearing officers may adopt rules and
discovery and procedure governing all proceedings before * * * them. The licentiate shall have the
opportunity to state all facts relevant to the case. The licentiate may accept
responsibility for the disciplinary violation(s) alleged while retaining the
right to a hearing on the discipline to be imposed for the violation(s) and
retaining the right to appeal any discipline determination to the chancery
court. On the basis of any such hearing, or upon
default of the licentiate, the board or the hearing officers shall make
a determination specifying * * * their findings of fact and
conclusions of law. The board or the hearing officers shall make * * * their determination based upon a * * * finding of * * * clear and convincing evidence. If
a hearing officer hears the matter, the board's executive director must affirm
or reject the hearing officer's determination on the basis of the facts
presented at the hearing alone. If the executive director rejects the hearing
officer's determination, he or she must detail in writing the specific basis
for the rejection. The executive director's affirmance or rejection shall
constitute a final, appealable decision.
A copy of the determination shall be sent by registered mail or served personally upon the licentiate and the licentiate's representative, if any. The decision of the board or the hearing officer revoking or suspending the license shall become final thirty (30) days after so mailed or served unless within that period the licentiate appeals the decision to the chancery court, under the provisions of this section. The appeal to the chancery court shall be based solely on the record made before the board or the hearing officer and the executive director's basis for rejecting the hearing officer's determination, if any. A transcript of the proceedings and evidence, together with exhibits, presented at the hearing before the board or the hearing officer in the event of appeal shall be a part of the record before the chancery court. The chancery court shall dispose of the appeal and enter its decision promptly. The hearing on the appeal may, in the discretion of the chancellor, be tried in vacation. Appeals may be taken to the Supreme Court of the State of Mississippi as provided by law from any final action of the chancery court. No such person shall be allowed to practice medicine in violation of any action of the chancery court affirming, in whole or in part, the determination of the board or the hearing officer, while any such appeal to the Supreme Court is pending.
For the purpose of
conducting investigations, the board and the hearing officers, through * * * the executive director of the
board, may issue subpoenas to any individual, clinic, hospital, pharmacy or
other entity having in its possession papers, documents, medical charts,
prescriptions or any other nonfinancial records. Any such subpoenas issued by
the executive director shall be made pursuant to an order of the board entered
on its minutes, determined on a case-by-case basis. Investigatory subpoenas,
as provided in this section, may be served either by personal process or by
registered mail, and upon service shall command production of the papers and
documents to the board at the time and place so specified. The board and
the hearing officers shall be entitled to the assistance of the chancery
court or the chancellor in vacation, which, on petition by the board or the
hearing officers, shall issue ancillary subpoenas and petitions and may
punish as for contempt of court in the event of noncompliance with the
subpoenas or petitions.
For the purpose of
conducting hearings, the board and the hearing officers, through * * * the executive director of the
board, may subpoena persons and papers on * * * their own behalf and on behalf of
the respondent, including records obtained under Section 73-25-28 and Section
73-25-83(c), may administer oaths, and may compel the testimony of witnesses.
Any such subpoenas issued by the executive director shall be made pursuant to
an order of the board entered on its minutes or by the hearing officers,
determined on a case-by-case basis. * * * They may issue subpoenas to take
testimony, and testimony so taken and sworn to shall be admissible in evidence
for and against the respondent. The board and the hearing officers
shall be entitled to the assistance of the chancery court or the chancellor in
vacation, which, on petition by the board, shall issue ancillary subpoenas and
petitions and may punish as for contempt of court in the event of noncompliance
with the subpoenas or petitions.
Unless the court otherwise decrees, a license that has been suspended by the board or the hearing officers for a stated period of time shall automatically become valid on the expiration of that period and a license that has been suspended for an indefinite period shall become again valid if and when the board so orders, which it may do on its own motion or on the petition of the respondent. A license that has been revoked shall not be restored to validity except: (1) by order of the board based on petition for reinstatement filed under Section 73-25-32 or (2) by order of the chancery court or Supreme Court following appeal. Any licentiate whose license becomes again valid after a period of suspension or after it has been restored to validity by order of the board or by an order of the court, shall record it again in the office of the clerk of the circuit court of the county in which he or she resides in conformity with the requirements of Section 73-25-13. Nothing in this chapter shall be construed as limiting or revoking the authority of any court or of any licensing or registering officer or board, other than the State Board of Medical Licensure, to suspend, revoke and reinstate licenses and to cancel registrations under the provisions of Section 41-29-311.
SECTION 5. Section 73-25-28, Mississippi Code of 1972, is amended as follows:
73-25-28. (1) In any case in which disciplinary action against a medical physician, osteopathic physician or podiatrist is being considered by the State Board of Medical Licensure, the executive officer of the board, or its investigators accompanied by any member of the board or any licensed physician or podiatrist appointed to act for the board, upon reasonable cause as defined below, may enter, at a time convenient to all parties, any hospital, clinic, office of a medical physician, osteopathic physician or podiatrist or emergency care facility to inspect and copy patient records, charts, emergency room records or any other document which would assist the board in its investigation of a medical physician, osteopathic physician or podiatrist. Reasonable cause shall be demonstrated by allegations of one or more of the following: (a) a single incident of gross negligence; (b) a pattern of inappropriate prescribing of controlled substances; (c) an act of incompetence or negligence causing death or serious bodily injury; (d) a pattern of substandard medical care; (e) a pattern of unnecessary surgery or unindicated medical procedures; (f) disciplinary action taken against a physician or podiatrist by a licensed hospital or by the medical staff of the hospital; (g) voluntary termination by a physician or podiatrist of staff privileges or having restrictions placed thereon; or (h) habitual personal use of narcotic drugs or other drugs having addiction-forming or addiction-sustaining liability, or the habitual personal use of intoxicating liquors or alcoholic beverages, to an extent which affects professional competency. Whether reasonable cause exists shall be determined by the executive officer and executive committee of the board, and documentation of that determination shall be provided to the hospital, clinic, office or emergency care facility before entry for inspection and copying hereunder.
(2) A certified copy of any
record inspected or copied pursuant to subsection (1) shall be subject to
subpoena by the board to be used as evidence * * * in a licensure disciplinary
proceeding initiated pursuant to the provisions of Sections 73-25-1 through 73-25-39,
73-25-51 through 73-25-67, 73-25-81 through 73-25-95 and 73-27-1 through 73-27-19,
Mississippi Code of 1972. All references to a patient's name and address or
other information which would identify the patient shall be deleted from the
records unless a waiver of the medical privilege is obtained from the patient.
(3) All records of the investigation and all patient charts, records, emergency room records or any other document that may have been copied shall be kept confidential and shall not be subject to discovery or subpoena. If no disciplinary proceedings are initiated within a period of five (5) years after the determination of insufficient cause, then the board shall destroy all records obtained pursuant to this section.
(4) Notwithstanding any right to privacy, confidentiality, privilege or exemption from public access conferred by this section, Section 73-52-1, or otherwise by statute or at law, the board shall provide to any hospital, as defined in Section 41-9-3, any and all information it may have concerning any physician who has applied for a license, other than information contained in records exempt from the provisions of the Mississippi Public Records Act of 1983 pursuant to Sections 45-29-1 and 45-29-3, Mississippi Code of 1972, upon receipt by the board of a written request from the hospital for such information and documentation that the physician has applied for appointment or reappointment to the medical staff of the hospital or staff privileges at the hospital. The board, any member of the board, and its agents or employees, acting without malice in providing the documents or information hereunder, shall be immune from civil or criminal liability.
SECTION 6. Section 73-25-29, Mississippi Code of 1972, is amended as follows:
73-25-29. The grounds for the nonissuance, suspension, revocation or restriction of a license or the denial of reinstatement or renewal of a license are:
(1) Habitual personal use of narcotic drugs, or any other drug having addiction-forming or addiction-sustaining liability.
(2) Habitual use of intoxicating liquors, or any beverage, to an extent which affects professional competency.
(3) Administering, dispensing or prescribing any narcotic drug, or any other drug having addiction-forming or addiction-sustaining liability otherwise than in the course of legitimate professional practice.
(4) Conviction of violation of any federal or state law regulating the possession, distribution or use of any narcotic drug or any drug considered a controlled substance under state or federal law, a certified copy of the conviction order or judgment rendered by the trial court being prima facie evidence thereof, notwithstanding the pendency of any appeal.
(5) Procuring, or attempting to procure, or aiding in, an abortion that is not medically indicated.
(6) Conviction of a felony or misdemeanor involving moral turpitude, a certified copy of the conviction order or judgment rendered by the trial court being prima facie evidence thereof, notwithstanding the pendency of any appeal.
(7) Obtaining or attempting to obtain a license by fraud or deception.
(8) Unprofessional conduct, which includes, but is not limited to:
(a) Practicing medicine under a false or assumed name or impersonating another practitioner, living or dead.
(b) Knowingly performing any act which in any way assists an unlicensed person to practice medicine.
(c) Making or willfully causing to be made any flamboyant claims concerning the licensee's professional excellence.
(d) Being guilty of any dishonorable or unethical conduct likely to deceive, defraud or harm the public.
(e) Obtaining a fee as personal compensation or gain from a person on fraudulent representation of a disease or injury condition generally considered incurable by competent medical authority in the light of current scientific knowledge and practice can be cured or offering, undertaking, attempting or agreeing to cure or treat the same by a secret method, which he or she refuses to divulge to the board upon request.
(f) Use of any false, fraudulent or forged statement or document, or the use of any fraudulent, deceitful, dishonest or immoral practice in connection with any of the licensing requirements, including the signing in his professional capacity any certificate that is known to be false at the time he or she makes or signs such certificate.
(g) Failing to identify a physician's school of practice in all professional uses of his or her name by use of his or her earned degree or a description of his or her school of practice.
(9) The refusal of a licensing authority of another state or jurisdiction to issue or renew a license, permit or certificate to practice medicine in that jurisdiction or the revocation, suspension or other restriction imposed on a license, permit or certificate issued by such licensing authority which prevents or restricts practice in that jurisdiction, a certified copy of the disciplinary order or action taken by the other state or jurisdiction being prima facie evidence thereof, notwithstanding the pendency of any appeal.
(10) Surrender of a license or authorization to practice medicine in another state or jurisdiction or surrender of membership on any medical staff or in any medical or professional association or society while under disciplinary investigation by any of those authorities or bodies for acts or conduct similar to acts or conduct which would constitute grounds for action as defined in this section.
(11) Final sanctions imposed by the United States Department of Health and Human Services, Office of Inspector General or any successor federal agency or office, based upon a finding of incompetency, gross misconduct or failure to meet professionally recognized standards of health care; a certified copy of the notice of final sanction being prima facie evidence thereof. As used in this paragraph, the term "final sanction" means the written notice to a physician from the United States Department of Health and Human Services, Officer of Inspector General or any successor federal agency or office, which implements the exclusion.
(12) Failure to
furnish the board, its investigators * * *, it representatives or the
hearing officers with information legally requested by the board or the
hearing officers.
(13) Violation of any provision(s) of the Medical Practice Act or the rules and regulations of the board or of any order, stipulation or agreement with the board.
(14) Violation(s) of the provisions of Sections 41-121-1 through 41-121-9 relating to deceptive advertisement by health care practitioners.
(15) Performing or inducing an abortion on a woman in violation of any provision of Sections 41-41-131 through 41-41-145.
In addition to the grounds specified above, the board or the hearing officers shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
SECTION 7. Section 73-25-30, Mississippi Code of 1972, is amended as follows:
73-25-30. (1) The
Mississippi State Board of Medical Licensure and the hearing officers,
in exercising * * *
their authority under the provisions of Section 73-25-29, shall have the
power to discipline the holder of a license who has been found * * * in violation of that
statute after notice and a hearing as provided by law, and the licensee * * * may be disciplined as follows:
(a) By placing him or her upon probation, the terms of which may be set by the board or the hearing officers, or
(b) By suspending his or her right to practice for a time deemed proper by the board or the hearing officers, or
(c) By revoking his or her license, or
(d) By taking any other action in relation to his or her license as the board or the hearing officers may deem proper under the circumstances.
(2) Upon the execution of a disciplinary order by the board or the hearing officers, either following a hearing or in lieu of a hearing, the board or the hearing officers, in addition to the disciplinary powers specified in subsection (1) of this section, may assess the licensee for those reasonable costs that are expended by the board or the hearing officers in the investigation and conduct of a proceeding for licensure disciplinary action including, but not limited to, the cost of process service, court reporters, witness fees, expert witnesses, investigators, and other related expenses. Money collected by the board or the hearing officers under this section shall be deposited to the credit of the special fund of the board to reimburse the existing current year appropriated budget.
(3) An assessment of costs under this section shall be paid to the board by the licensee, upon the expiration of the period allowed for appeals under Section 73-25-27, or may be paid sooner if the licensee elects. Cost assessed under this section shall not exceed Ten Thousand Dollars ($10,000.00).
(4) When an assessment of costs by the board or the hearing officers against a licensee in accordance with this section is not paid by the licensee when due under this section, the licensee shall be prohibited from practicing medicine until the full amount is paid. In addition, the board may institute and maintain proceedings in its name for enforcement of payment in the Chancery Court of the First Judicial District of Hinds County. When those proceedings are instituted, the board shall certify the record of its proceedings, together with all documents and evidence, to the chancery court. The matter shall be heard in due course by the court, which shall review the record and make its determination thereon. The hearing on the matter, in the discretion of the chancellor, may be tried in vacation.
SECTION 8. Section 73-25-31, Mississippi Code of 1972, is amended as follows:
73-25-31. Every order and
judgment of the board and its hearing officers shall take effect
immediately on its promulgation unless * * * such order or judgment fixes a
probationary period for the licentiate. Such order and judgment shall
continue in effect unless upon appeal the court by proper order or decree
terminates it earlier. The board may make public its orders and judgments,
and those of its hearing officers, in such manner and form as it deems
proper. It shall in event of the suspension or revocation of a license direct
the clerk of the circuit court of the county in which that license was recorded
to cancel such record.
SECTION 9. This act shall take effect and be in force from and after July 1, 2018.