2006 Nebraska Revised Statutes - § 71-147 — License, certificate, or registration to practice a profession; disciplinary actions; grounds.

Section 71-147
License, certificate, or registration to practice a profession; disciplinary actions; grounds.

A license, certificate, or registration to practice a profession may be denied, refused renewal, limited, revoked, or suspended or have other disciplinary measures taken against it in accordance with section 71-155 when the applicant, licensee, certificate holder, or registrant is guilty of any of the following acts or offenses:

(1) Fraud, forgery, or misrepresentation of material facts in procuring or attempting to procure a license, certificate, or registration;

(2) Grossly immoral or dishonorable conduct evidencing unfitness or lack of proficiency sufficient to meet the standards required for practice of the profession in this state;

(3) Habitual intoxication or dependence or failure to comply with a treatment program or an aftercare program entered into under the Licensee Assistance Program established pursuant to section 71-172.01;

(4) Conviction of a misdemeanor or felony under state law, federal law, or the law of another jurisdiction and which, if committed within this state, would have constituted a misdemeanor or felony under state law and which has a rational connection with the applicant's, licensee's, certificate holder's, or registrant's fitness or capacity to practice the profession;

(5) Practice of the profession (a) fraudulently, (b) beyond its authorized scope, (c) with manifest incapacity, (d) with gross incompetence or gross negligence, or (e) in a pattern of negligent conduct. Pattern of negligent conduct shall mean a continued course of negligent conduct in performing the duties of the profession;

(6) Practice of the profession while the ability to practice is impaired by alcohol, controlled substances, narcotic drugs, physical disability, mental disability, or emotional disability;

(7) Physical or mental incapacity to practice the profession as evidenced by a legal adjudication or a determination thereof by other lawful means;

(8) Permitting, aiding, or abetting the practice of a profession or the performance of activities requiring a license, certificate, or registration by a person not licensed, certified, or registered to do so;

(9) Having had his or her license, certificate, or registration denied, refused renewal, limited, suspended, or revoked or having had such license, certificate, or registration disciplined in any other manner in accordance with section 71-155 by another state or jurisdiction to practice the particular profession involved, based upon acts by the applicant, licensee, certificate holder, or registrant similar to acts described in this section. A certified copy of the record of denial, refusal of renewal, limitation, suspension, or revocation of a license, certificate, or registration or the taking of other disciplinary measures against it by another state or jurisdiction shall be conclusive evidence;

(10) Unprofessional conduct;

(11) Use of untruthful or improbable statements or flamboyant, exaggerated, or extravagant claims, concerning such licensee's, certificate holder's, or registrant's professional excellence or abilities, in advertisements;

(12) Conviction of fraudulent or misleading advertising or conviction of a violation of the Uniform Deceptive Trade Practices Act;

(13) Distribution of intoxicating liquors, controlled substances, or drugs for any other than lawful purposes;

(14) Willful or repeated violations of the Uniform Licensing Law or the rules and regulations of the department relating to the licensee's, certificate holder's, or registrant's profession, sanitation, quarantine, or school inspection;

(15) Unlawful invasion of the field of practice of any profession mentioned in the Uniform Licensing Law which the licensee, certificate holder, or registrant is not licensed, certified, or registered to practice;

(16) Failure to comply with sections 71-603.01, 71-604, 71-605, and 71-606 relating to the signing of birth and death certificates;

(17) Violation of the Uniform Controlled Substances Act or any rules and regulations adopted pursuant to the act;

(18) Purchasing or receiving any prescription drug from any source in violation of the Wholesale Drug Distributor Licensing Act;

(19) Violation of the Emergency Box Drug Act;

(20) Failure to file a report required by section 71-168;

(21) Failure to disclose the information required by section 71-1,314.01;

(22) Failure to disclose the information required by section 71-1,319.01; or

(23) Failure to disclose the information required by section 71-1,206.34.

A license, certificate, or registration to practice a profession may also be refused renewal or revoked when the licensee, certificate holder, or registrant is guilty of practicing such profession while his or her license, certificate, or registration to do so is suspended or is guilty of practicing such profession in contravention of any limitation placed upon his or her license, certificate, or registration.

This section shall not apply to revocation for nonrenewal as set out in subsection (1) of section 71-149 and sections 71-110 and 71-161.10.

Source:

Laws 1927, c. 167, § 46, p. 466

C.S.1929, § 71-601

Laws 1943, c. 150, § 10, p. 541

R.S.1943, § 71-147

Laws 1976, LB 877, § 1

Laws 1979, LB 95, § 1

Laws 1986, LB 286, § 45

Laws 1986, LB 579, § 37

Laws 1986, LB 926, § 24

Laws 1987, LB 473, § 15

Laws 1988, LB 1100, § 16

Laws 1991, LB 456, § 7

Laws 1992, LB 1019, § 37

Laws 1993, LB 536, § 44

Laws 1994, LB 1210, § 25

Laws 1994, LB 1223, § 6

Laws 1997, LB 622, § 79

Laws 1999, LB 366, § 8

Laws 2001, LB 398, § 20

Laws 2005, LB 301, § 9

Cross References:

Emergency Box Drug Act,see section 71-2410.

Uniform Controlled Substances Act,see section 28-401.01.

Uniform Deceptive Trade Practices Act,see section 87-306.

Wholesale Drug Distributor Licensing Act,see section 71-7401.

Annotations:

Pursuant to subsection (5)(d) of this section, a district court is correct in concluding that a record lacks the quantum of evidence necessary to support a reasonable inference that a physician was grossly incompetent in treatment of a patient when: Experts testified that they would have found other procedures preferable, assessed the situation more thoroughly, or acted earlier in the course of treatment; experts agreed that the physician's actions were not contrary to the indications and information he or she had received at the time; and positive assessments of the physician's basic skill level were not contradicted by any evidence in the record. Pursuant to subsection (5)(d) of this section, the term "gross incompetence" connotes such an extreme deficiency on the part of a physician in the basic knowledge and skill necessary for diagnosis and treatment that one may reasonably question the physician's ability to practice medicine at the threshold level of professional competence. Langvardt v. Horton, 254 Neb. 878, 581 N.W.2d 60 (1998).

Under subsection (10) of this section, the word "includes" is restricted by the language which specifies the sources referred to. Thus, a violation of standards of the medical profession not defined by the statute or rules and regulations does not define unprofessional conduct for the purposes of the statute. Curry v. State ex rel. Stenberg, 242 Neb. 695, 496 N.W.2d 512 (1993).

Section is permissive, revocation following conviction for a serious criminal act was not abuse of discretion. State ex rel. Meyer v. Eyen, 184 Neb. 848, 172 N.W.2d 617 (1969).

A physician's license may be revoked for unprofessional conduct before conviction in a competent court. Mathews v. Hedlund, 82 Neb. 825, 119 N.W. 17 (1908).

In proceedings to revoke a physician's license on grounds of producing a criminal abortion, trial and conviction of such a charge by a competent court is not a condition precedent to said proceedings. Munk v. Frink, 81 Neb. 631, 116 N.W. 525 (1908), 17 L.R.A.N.S. 439 (1908).

State does not have to prove that a federal felony conviction under subsection (4) of this section is also a violation of Nebraska law. Sedivy v. State ex rel. Stenberg, 5 Neb. App. 745, 567 N.W.2d 784 (1997).

The judiciary will not interfere with executive officers in the performance of duties which are discretionary in their nature or involve the exercise of judgment; there exists no power in the courts to act upon the officer so as to interfere with the exercise of that judgment while the matter is properly before the officer for action. Roseberry v. Wright, 2 Neb. App. 248, 508 N.W.2d 867 (1993).

~Revised Statutes Supplement, 2006