Subchapter E. MEDICAL DISCIPLINARY PROCESS AND PROCEDURES

§ 16.41. Definitions.

 The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

   Board counsel—An assistant counsel assigned by the Office of General Counsel to serve as legal counsel to the Board.

   Board prosecutor—An assistant counsel assigned by the Office of General Counsel to review complaints, initiate investigations and prosecute disciplinary matters before the Board.

   Complaints officer—The administrator of the Complaints Office for the Bureau of Professional and Occupational Affairs.

   Hearing examiner—The hearing examiner employed by the Board and approved by the Governor for the purpose of conducting hearings involving the discipline of a licensed physician or surgeon and rendering the adjudication.

   Medical consultant—A licensed physician or surgeon employed by the Board to aid in the review of complaints when required, to advise the Board prosecutor in preparing for and requesting of investigations, to aid in interpreting investigation results, to assist the hearing examiner in interpreting technical testimony of a medical nature, to examine physicians who are thought to be impaired and to serve as a medical expert when required.

   Medical investigator—An investigator employed by the Board to conduct preliminary investigations in following up complaints and assisting the Board prosecutor and counsel in obtaining information relative to cases requiring a hearing or follow-up investigation after hearing and who may serve as witness for the Commonwealth at hearings.

HEARING EXAMINERS AND MEDICAL CONSULTANTS

§ 16.51. Hearing examiners.

 Hearing examiners are appointed by the Governor’s Office of General Counsel to hear matters before the Board. Unless otherwise ordered by the Board, disciplinary matters shall be heard by a hearing examiner.

   The provisions of this §  16.51 amended under sections 8 and 9 of the Medical Practice Act of 1985 (63 P. S. § §  422.8 and 422.9).

 To enhance the quality of expert testimony given in disciplinary proceedings before the Board and its hearing examiners, persons appearing as expert witness should possess, whenever practicable, the following qualifications:

   (1)  General rule. Persons offering expert medical opinions in a disciplinary action before the Board and its hearing examiners should be able to demonstrate their competency to testify by showing that they possess sufficient education, training, knowledge and experience to provide credible, competent testimony in the specialty and subspecialty about which the expert intends to testify and should possess the additional qualifications set forth in this section, as applicable.

   (2)  Medical testimony.

     (i)   An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, should:

       (A)   Possess an unrestricted physician’s license to practice medicine in any state or the District of Columbia, and obtain at a minimum a temporary license from the Board.

       (B)   Be engaged in, or have retired within the previous 5 years from, active clinical practice or teaching of medicine.

     (ii)   On matters other than the standard of care, the Board may choose to accept testimony from a nonphysician expert who demonstrates competence to testify about medical or scientific issues by virtue of education, training or experience specifically related to the issues on which the testimony is proffered.

   (3)  Standard of care. In regard to testimony offered on the standard of care, an expert should:

     (i)   Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.

     (ii)   Practice in the same specialty and subspecialty as the respondent physician or in a subspecialty that has a substantially similar standard of care for the specific care at issue, except as provided in paragraph (4) or (5).

     (iii)   In the event a Board-recognized certifying board certifies the respondent physician, the expert should also be board certified by the same or a similar approved board, except as provided in paragraph (5).

   (4)  Care outside specialty. The Board may choose to accept testimony of an expert testifying on the standard of care for the diagnosis or treatment of a condition when the Board determines that:

     (i)   The expert is trained in the diagnosis or treatment of the condition, as applicable.

     (ii)   The respondent physician provided care for that condition and the care was not within the respondent physician’s specialty.

   (5)  Otherwise adequate training, experience and knowledge. The Board may also choose to accept testimony as to a standard of care from an expert who does not possess qualifications in the same specialty or subspecialty of the respondent physician or does not possess the same board certification of the respondent when the Board determines that the expert nonetheless possesses sufficient current training, experience and knowledge to provide the testimony as a result of active involvement in research or full-time teaching of medicine in the applicable specialty or subspecialty or a related field of medicine.

   (6)  Application of Board’s own expertise. Nothing in this subsection precludes the Board from applying its own expertise in determining the applicable standard of care in disciplinary matters before the Board.

 (a)  The hearing examiner has the power to conduct a hearing under this chapter, 1 Pa. Code Part II (relating to general rules of administrative practice and procedure) and 2 Pa.C.S. § §  501—508 and 701—704 (relating to the Administrative Agency Law).

 (b)  The hearing examiner has the following powers:

   (1)  The power to issue subpoenas requiring the attendance and testimony of individuals and the production of pertinent books, records, documents and papers.

   (2)  The power to continue a formal hearing in order to call additional witnesses he may believe are required, or to get additional documented evidence before reaching his decision.

   (3)  The power to question and cross-examine witnesses presented by either party.

   (4)  The power to administer oaths.

 (c)  The hearing examiner is required to hear the evidence submitted and arguments of counsel and render a decision.

 (d)  The hearing examiner shall record his decision in the form of an adjudication and order, supported by findings of fact and conclusions of law.

 (e)  The hearing examiner shall provide copies of the adjudication and order to the Board, along with the transcript of the evidence. A copy of the adjudication and order shall also be furnished to the counsel of record or to the parties in the dispute.

 A medical consultant shall perform the following:

   (1)  Review medical aspects of a complaint referred to him by the Board prosecutor and prepare a written report of recommendations based on the review and inquiries deemed necessary to determine whether further action is required.

   (2)  Review a complaint in order to aid the Board prosecutor in recognizing medical issues and determining what information should be obtained and what additional investigation is required.

   (3)  Attend a prehearing conference which may be scheduled regarding complaints assigned to him.

   (4)  Administer physical and mental examinations to physicians for evaluation of impairment.

 (a)  A person may submit a written complaint to the complaints office alleging a violation of the act or this chapter or Chapter 17 or 18 (relating to State Board of Medicine—medical doctors; and State Board of Medicine—practitioners other than medical doctors), specifying the grounds therefore.

 (b)  The complaints office will assign a complaint to the prosecution and investigatory staff who, together with medical consultants as may be required, will make a determination that the complaint merits consideration. The Board prosecutor will cause to be conducted reasonable inquiry or investigation that is deemed necessary to determine the truth and validity of the allegations in the complaint. The Board prosecutor will provide reports to the Board at its regular meetings on the number, nature, procedure and handling of the complaints received.

 (c)  Upon review of the complaint, documentation, records and other materials obtained during the course of an investigation, the Board prosecutor will determine whether to initiate the filing of formal charges. The documents, materials or information obtained during thecourse of an investigation shall be confidential and privileged unless admitted as evidence during the course of a formal disciplinary proceeding. A person who has investigated or has access to or custody of documents, materials or information which are confidential and privileged under this subsection will not be required to testify in any judicial or administrative proceeding without the written consent of the Board.

 (d)  The Board prosecutor may enter into negotiations at any stage of the complaint, investigation or hearing process to settle the case by consent agreement.

   (1)  Consent agreements must be approved as to form and legality by the Office of General Counsel and adopted by the Board.

   (2)  Until the Board approves a consent agreement, the terms of the agreement are confidential.

   (3)  Admissions made by a respondent during the course of negotiations may not be used against the respondent in any formal disciplinary proceeding if a consent agreement cannot be reached.

   (4)  Admissions made by a respondent in a consent agreement that is ultimately rejected by the Board may not be used against the respondent in any formal disciplinary proceeding.

   (5)  This subsection does not preclude the Board prosecutor from offering, at a formal disciplinary hearing, other evidence to prove factual matters disclosed during the negotiation process.

   The provisions of this §  16.55 issued under sections 8 and 9 of the Medical Practice Act of 1985 (63 P. S. § §  422.8 and 422.9).

 Formal disciplinary proceedings are open to the public. Members of the press may request in advance of the hearing permission from the presiding officer for the electronic recording of the proceedings. Upon the consideration of objections by the parties, the hearing examiner may permit the electronic recording of the proceeding by members of the press if the presiding officer determines that the recording will not interfere with the efficient conduct or impartiality and fairness of the proceedings.

   The provisions of this §  16.56 issued under sections 8 and 9 of the Medical Practice Act of 1985 (63 P. S. § §  422.8 and 422.9).

 (a)  Unless otherwise ordered by the Board, the decision of the hearing examiner becomes final 20 days after its issuance.

   (1)  Upon application for review by any party or upon the Board’s own motion, the Board will review the hearing examiner’s decision.

   (2)  The Board will review the entire record and, if it deems it advisable, may hear additional testimony from persons already deposed or from new witnesses as well as arguments of counsel to make a Board decision.

   (3)  Additional testimony will be taken as soon as practicable.

   (4)  The Board will issue its final decision, along with its findings of fact and conclusions of law, which will be sent by mail to the parties involved.

 (b)  Unless otherwise ordered by the Board, neither the filing of an application for review nor the Board’s own notice of intent to review will stay the hearing examiner’s decision.

   The provisions of this §  16.57 issued under sections 8 and 9 of the Medical Practice Act of 1985 (63 P. S. § §  422.8 and 422.9).

 The respondent may, within 30 days from the date of the decision of the Board, appeal to the Commonwealth Court under 2 Pa.C.S. §  702 (relating to appeals).

   The provisions of this §  16.58 issued under sections 8 and 9 of the Medical Practice Act of 1985 (63 P. S. § §  422.8 and 422.9).

   The provisions of this §  16.58 adopted May 20, 2005, effective May 21, 2005, 35 Pa.B. 3019.

COMPLAINTS

§ 16.61. Unprofessional and immoral conduct.

 (a)  A Board-regulated practitioner who engages in unprofessional or immoral conduct is subject to disciplinary action under section 41 of the act (63 P. S. §  422.41). Unprofessional conduct includes, but is not limited to, the following:

   (1)  Revealing personally identifiable facts, obtained as the result of a practitioner-patient relationship, without the prior consent of the patient, except as authorized or required by statute.

   (2)  Violating a statute, or a regulation adopted thereunder, which imposes a standard for the practice of the healing arts as regulated by the Board in this Commonwealth. The Board, in reaching a decision on whether there has been a violation of a statute, rule or regulation, will be guided by adjudications of the agency or court which administers or enforces the standard.

   (3)  Performing a medical act or treatment regimen incompetently or performing a medical act or treatment regimen which the Board-regulated practitioner knows or has reason to know that the practitioner is not competent to perform.

   (4)  Unconditionally guaranteeing that a cure will result from the performance of medical services or treatment regimen.

   (5)  Advertising of a medical business which is intended to or has a tendency to deceive the public.

   (6)  Practicing the healing arts fraudulently, or with reckless indifference to the interests of a patient on a particular occasion, or with negligence on repeated occasions.

   (7)  Practicing the healing arts while the ability to practice is impaired by alcohol, drugs or physical or mental disability.

   (8)  Knowingly permitting, aiding or abetting a person who is not licensed or certified, or exempt from license or certification requirements, to perform activities requiring a license or certification in a health care practice.

   (9)  Continuing to practice while the Board-regulated practitioner’s license or certificate has expired, is not registered or is suspended or revoked.

   (10)  Impersonating another health-care practitioner.

   (11)  Possessing, using, prescribing for use or distributing a controlled substance or a legend drug in a way other than for an acceptable medical purpose. An acceptable experimental purpose is considered an acceptable medical purpose.

   (12)  Offering, undertaking or agreeing to cure or treat a disease by a secret method, procedure, treatment or medicine, or the treating, operating or prescribing for a human condition by a method, means or procedure which the licensee refuses to divulge to the Board upon demand of the Board.

   (13)  Charging a patient or a third-party payor for a medical service or treatment regimen not performed. This paragraph does not apply to charging for an unkept office visit.

   (14)  Delegating a medical responsibility to a person when the physician knows or has reason to know that the person is not qualified by training, experience, license or certification to perform the delegated task.

   (15)  Failing to exercise appropriate supervision over a person who is authorized to practice only under the supervision of the physician.

   (16)  Willfully harassing, abusing or intimidating a patient.

   (17)  Abandoning a patient. Abandonment occurs when a physician withdraws his services after a physician-patient relationship has been established, by failing to give notice to the patient of the physician’s intention to withdraw in sufficient time to allow the patient to obtain necessary medical care. Abandonment also occurs when a physician leaves the employment of a group practice, hospital, clinic or other health-care facility, without the physician giving reasonable notice and under circumstances which seriously impair the delivery of medical care to patients.

   (18)  Failing to make available to the patient or to another designated health care practitioner, upon a patient’s written request, the medical record or a copy of the medical record relating to the patient which is in the possession or under the control of the Board-regulated practitioner; or failing to complete those forms or reports, or components of forms or reports, which are required to be completed by the Board-regulated practitioner as a precondition to the reimbursement or direct payment by a third party of the expenses of a patient that result from the practice of the healing arts. Reasonable fees may be charged for making available copies, forms or reports. Prior payment for professional services to which the records relate—this does not apply to fees charged for reports—may not be required as a condition for making the records available. A Board-regulated practioner may withhold information from a patient if, in the reasonable exercise of his professional judgment, he believes release of the information would adversely affect the patient’s health.

   (19)  Violating a provision of this chapter, Chapter 17 or Chapter 18 (relating to State Board of Medicine—medical doctors; or State Board of Medicine—practitioners other than medical doctors) fixing a standard of professional conduct.

 (b)  Immoral conduct includes, but is not limited to, the following:

   (1)  Misrepresentation or concealment of a material fact in obtaining a license or a certificate issued by the Board or a reinstatement thereof.

   (2)  The commission of an act involving moral turpitude, dishonesty or corruption when the act directly or indirectly affects the health, welfare or safety of citizens of this Commonwealth. If the act constitutes a crime, conviction thereof in a criminal proceeding is not a condition precedent to disciplinary action.

   The provisions of this §  16.61 amended under section 51.1(d) of the Medicial Practice Act of 1985 (63 P. S. §  422.51a(d)).

   The provisions of this §  16.61 amended July 13, 2007, effective July 14, 2007, 37 Pa.B. 3230. Immediately preceding text appears at serial pages (311629) to (311630) and (261709).

   The provisions of this §  16.62 reserved March 13, 1998, effective March 14, 1998, 28 Pa.B. 1315. Immediately preceding text appears at serial pages (209927) to (209929).

   Validity

   The provisions of this §  16.81 reserved March 13, 1998, effective March 14, 1998, 28 Pa.B. 1315. Immediately preceding text appears at serial page (209930).

   Standing to Appeal

   The provisions of this §  16.82 reserved March 13, 1998, effective March 14, 1998, 28 Pa.B. 1315. Immediately preceding text appears at serial page (209930).