GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2009

S                                                                                                                                                    2

SENATE BILL 958

Judiciary I Committee Substitute Adopted 5/12/09

Short Title:        Disciplinary Proceedings/NC Medical Board.	(Public)
Sponsors:
Referred to:

March 26, 2009

A BILL TO BE ENTITLED

AN ACT amending disciplinary proceedings of the north carolina medical board.

The General Assembly of North Carolina enacts:

SECTION 1.  G.S. 90‑14 is amended by adding the following new subsections to read:

"(h) No investigation of a licensee shall be initiated upon the direction of a single member of the Board. Investigations of licensees shall be initiated by a committee of the Board upon cause as determined by such committee. The term 'investigation' as used in this subsection shall not include the initial communication between an investigator and a complainant or an investigator and the licensee that is subject of the complaint or that licensee's counsel to assess the merits of the complaint. When such committee determines that an investigation of a licensee should be undertaken, the licensee shall be advised with particularity as to the reason(s) for the investigation being undertaken. The Board shall inform a licensee of any exculpatory evidence discovered during an investigation.

(i) At the time an investigation is initiated against a licensee, the Board shall provide to the licensee in writing a notice that informs the licensee: (i) of the existence of any complaint or other information forming the basis for initiation of an investigation as required by G.S. 90‑14(h); (ii) that the licensee has the right to counsel; (iii) that if the licensee retains counsel all communications from the Board regarding the investigation will be made via the licensee's counsel; (iv) the Board will provide to the licensee all exculpatory evidence developed in the course of the investigation; (v) that the licensee has a right to an informal conference with the Board to discuss the matter(s) giving rise to the investigation prior to initiation of any formal disciplinary proceeding by the Board; (vi) that any statements made by the licensee to a Board investigator, agent, or consultant during the course of the investigation may be used against the licensee in any hearing that might result from the investigation; (vii) that the Board must complete its investigation within six months or provide an explanation as to why it must be extended; and (viii) any Board member involved in the investigation will not participate in the adjudication of any matter before the Board affecting the licensee.

(j) The Board shall complete any investigation initiated pursuant to this section no later than six months from the date the investigation was initiated unless the Board provides to the licensee a written explanation of the circumstances and reasons for extending the investigation.

(k) No Board member who is a member of the committee described in subsection (h) of this section may thereafter participate in any way in the ultimate decision or adjudication by the Board affecting the licensee who is the subject of the investigation.

(l) The Board shall not seek to require of a licensee the taking of any action adversely impacting the licensee's medical practice or license without first giving notice of the proposed action and the basis therefor to the licensee and affording the licensee an informal conference to discuss his/her practice and the reason(s) for the proposed action."

SECTION 2.  G.S. 90‑14.2 reads as rewritten:

"§ 90‑14.2.  Hearing before disciplinary action.

(a)        Before the Board shall take disciplinary action against any license granted by it, the licensee shall be given a written notice indicating the general nature of the charges, accusation, or complaint made against him,the licensee, which notice may be prepared by a committee or one or more members of the Board designated by the Board, and stating that such the licensee will be given an opportunity to be heard concerning such charges orthe complaint at a time and place stated in such the notice, or at a time and place to be thereafter designated by the Board, and the Board shall hold a public hearing not less than 30 days from the date of the service of such notice upon such the licensee, at which such the licensee may appear personally and through counsel, may cross examine witnesses and present evidence in his the licensee's own behalf. If a licensee retains counsel to appear on the licensee's behalf in any matter before the Board, the Board shall communicate to the licensee through the licensee's counsel. A physician who is mentally incompetent shall be represented at such hearing and shall be served with notice as herein provided by and through a guardian ad litem appointed by the clerk of the court of the county in which the physician has his residence.resides. Such The licensee or physician may, if he the licensee desires, file written answers to the charges or complaints complaint preferred against him within 30 days after the service of such the notice, which answer shall become a part of the record but shall not constitute evidence in the case.

(b) In conducting hearings, the Board shall retain independent counsel to provide advice, as necessary, to the Board or any hearing committee constituted under G.S. 90‑14.5(a) concerning matters of procedure and evidence."

SECTION 3.  G.S. 90‑14.5 reads as rewritten:

"§ 90‑14.5.  Use of hearing committee and depositions; appointment of hearing officers.

(a)        The Board, in its discretion, may designate in writing three or more hearing officers to conduct hearings as a hearing committee to take evidence. A hearing committee shall be composed of a majority of Board licensees, including no more than one public member. The Board shall make a reasonable effort to include on the panel at least one physician licensed in the same or similar specialty as the licensee against whom the complaint has been filed. If a licensee who is to be the subject of a hearing shall so request in writing within 30 days after being served with a notice of hearing, the hearing shall be conducted before the full Board, excepting those Board members who may not participate in a hearing as otherwise provided herein.

(b)        Evidence and testimony may be presented at hearings before the Board or a hearing committee in the form of depositions before any person authorized to administer oaths in accordance with the procedure for the taking of depositions in civil actions in the superior court.

(c)        The hearing committee shall submit a recommended decision that contains findings of fact and conclusions of law to the Board. Before the Board makes a final decision, it shall give each party an opportunity to file written exceptions to the recommended decision made by the hearing committee and to present oral arguments to the Board. No member of the Board who was involved in the investigation of the complaint or as a member of the hearing committee described in subsection (a) of this section may participate as a member of the quorum of the Board that issues a final decision on the hearing committee's recommended decision.A quorum of the Board will issue a final decision.

(d)        Hearing officers are entitled to receive per diem compensation and reimbursement for expenses as authorized by the Board. The per diem compensation shall not exceed the amount allowed by G.S. 90‑13.3."

SECTION 4.  G.S. 90‑14.6 reads as rewritten:

"§ 90‑14.6.  Evidence admissible.

(a)        Except as otherwise provided in proceedings held pursuant to this Article the Board shall admit and hear evidence in the same manner and form as prescribed by law for civil actions. A complete record of such evidence shall be made, together with the other proceedings incident to such the hearing.

(b)        Subject to the North Carolina Rules of Civil Procedure and Rules of Evidence, in proceedings held pursuant to this Article, the individual under investigation may call witnesses, including medical practitioners licensed in the United States with training and experience in the same field of practice as the individual under investigation and familiar with the standard of care standards of practice among members of the same health care profession in North Carolina. with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the complaint against the individual under investigation. Witnesses shall not be restricted to experts certified by the American Board of Medical Specialties. Any expert witness called to testify on behalf of the Board shall meet the qualifications of G.S. 8C‑1, Rule 702.

(b1) The Board shall require two concurring expert opinions before taking disciplinary action against a licensee in a quality of care action and any exceptions to the requirement shall be established pursuant to rules adopted by the Board. A Board member may not serve as an expert in investigation proceedings. A second expert reviewer shall review the first expert's preliminary report and other information associated with the complaint. The review by the second expert shall be independent of the first review, without knowledge by the second expert of the identity of the first expert and without any communication between the two experts. However, the second expert shall not be subject to the limitations in subsection (b) of this section that require similar training and experience situated in the same or similar communities. The Board shall document and make available to the licensee against whom the complaint has been filed the qualifications of the experts offering opinions. The Board shall present all expert opinions in the Board's possession at the initial conference with the licensee.

(c)        Subject to the North Carolina Rules of Civil Procedure and Rules of Evidence, statements contained in medical or scientific literature shall be competent evidence in proceedings held pursuant to this Article. Documentary evidence may be received in the form of a copy or excerpt or may be incorporated by reference, if the materials so incorporated are available for examination by the parties. Upon timely request, a party shall be given an opportunity to compare the copy with the original if available.

(d)        When evidence is not reasonably available under the Rules of Civil Procedure and Rules of Evidence to show relevant facts, then the most reliable and substantial evidence available shall be admitted.

(e) Any final decision of the Board shall be based upon a preponderance of the evidence admitted in the hearing."

SECTION 5.  G.S. 90‑14.8 reads as rewritten:

"§ 90‑14.8.  Appeal from Board's decision taking disciplinary action on a license.

(a) A physician against whom the Board imposes any public disciplinary sanction as authorized under G.S. 90‑14(a) may appeal such action.

(b)        A physician against whom any public disciplinary sanction is imposed by the Board whose license is revoked or suspended by the Board may obtain a review of the decision of the Board in the Superior Court of Wake CountyCounty, or the county in which the physician resides, upon filing with the secretary of the Board a written notice of appeal within 20 days after the date of the service of the decision of the Board, stating all exceptions taken to the decision of the Board and indicating the court in which the appeal is to be heard.

(c)        Within 30 days after the receipt of a notice of appeal as herein provided, the Board shall prepare, certify and file with the clerk of the Superior Court of Wake CountyCounty, or the county in which the physician resides, the record of the case comprising a copy of the charges, notice of hearing, transcript of testimony, and copies of documents or other written evidence produced at the hearing, decision of the Board, and notice of appeal containing exceptions to the decision of the Board."

SECTION 6.  G.S. 90‑14.13(a) reads as rewritten:

"(a)       The chief administrative officer of every licensed hospital or other health care institution, including Health Maintenance Organizations, as defined in G.S. 58‑67‑5, preferred providers, as defined in G.S. 58‑50‑56, and all other provider organizations that issue credentials to physicians who practice medicine in the State, shall, after consultation with the chief of staff of that institution, report to the Board the following actions involving a physician's privileges to practice in that institution within 30 days of the date that the action takes effect:

(1)        A summary revocation, summary suspension, or summary limitation of privileges,privileges in matters related to professional competence or conduct, regardless of whether the action has been finally determined.

(2)        A revocation, suspension, or limitation of privileges in matters related to professional competence or conduct that has been finally determined by the governing body of the institution.

(3)        A resignation from practice or voluntary reduction of privileges.privileges made during an active investigation or a peer review proceeding.

(4)        Any action reportable pursuant to Title IV of P.L. 99‑660, the Health Care Quality Improvement Act of 1986, as amended, not otherwise reportable under subdivisions (1), (2), or (3) of this subsection."

SECTION 7.  This act is effective when it becomes law.