2017 South Carolina Code of Laws
Title 40 - Professions and Occupations
CHAPTER 47 - PHYSICIANS AND MISCELLANEOUS HEALTH CARE PROFESSIONALS
Section 40-47-20. Definitions.
In addition to the definitions provided in Section 40-1-20, as used in this chapter unless the context indicates otherwise:
(1) "Active license" means the status of an authorization to practice that has been renewed for the current period and authorizes the licensee to practice in this State.
(2) "Administrative hearing officer" means a physician designated by the board or director.
(3) "Adverse disciplinary action" means a final decision by a United States or foreign licensing jurisdiction, a peer review group, a health care institution, a professional or medical society or association, or a court, which action was not resolved completely in the licensee's favor.
(4) "Agreed to jointly" means the agreement by the Board of Nursing and Board of Medical Examiners on delegated medical acts that nurses perform and that are promulgated by the Board of Nursing in regulation.
(5) "Approved written protocols" means specific statements developed collaboratively by the physician or the medical staff and the advanced practice registered nurse (NP, CNM, or CNS) that establish physician delegation for medical aspects of care, including the prescription of medications.
(6) "Approved written scope of practice guidelines" means specific statements developed by a physician or the medical staff and a physician assistant that establish physician delegation for medical aspects of care, including the prescription of medications.
(7) "Board" means the State Board of Medical Examiners for South Carolina.
(8) "Board-approved credentialing organization" means an organization that offers a certification examination in a specialty area of practice, establishes scope and standards of practice statements, and provides a mechanism approved by the board for evaluating continuing competency in a specialized area of practice.
(9) "Business days" means every day except Saturdays, Sundays, and legal holidays.
(10) "Cancellation" means the withdrawal or invalidation of an authorization to practice that was issued to an ineligible person either in error or based upon a false, fraudulent, or deceptive representation in the application process.
(11) "Certification" means approval by an established body, other than the board, but recognized by the board, that recognizes the unique, minimal requirements of specialized areas of practice. Certification requires completion of a recognized formal program of study and specialty board examination, if the specialty board exists, and certification of competence in practice by the certifying agency.
(12) "Criminal history" means a federal, state, or local criminal history of conviction or a pending charge or indictment of a crime, whether a misdemeanor or a felony, that bears upon a person's fitness or suitability for an authorization to practice with responsibility for the safety and well-being of others.
(13) "Delegated medical acts" means additional acts delegated by a physician or dentist to a physician assistant, respiratory care practitioner, anesthesiologist's assistant, or other practitioner authorized by law under approved written scope of practice guidelines or approved written protocols as provided by law in accordance with the applicable scope of professional practice. Delegated medical acts must be performed under the supervision of a physician or dentist who must be readily or immediately available for consultation in accordance with the applicable scope of professional practice.
(14) "Delegated medical acts to the APRN" means additional acts delegated by a physician or dentist to the Advanced Practice Registered Nurse (NP, CNM, or CNS) which may include formulating a medical diagnosis and initiating, continuing, and modifying therapies, including prescribing drug therapy, under approved written protocols as provided in Section 40-33-34 and Section 40-47-195. Delegated medical acts to the APRN (NP, CNM, or CNS) must be agreed to jointly by both the Board of Nursing and the Board of Medical Examiners. Delegated medical acts to the APRN (NP, CNM, or CNS) must be performed under the general supervision of a physician or dentist who must be readily available for consultation.
(15) "Dentist" means a dentist licensed by the South Carolina Board of Dentistry.
(16) "Disciplinary action" means a final decision and sanction imposed at the conclusion of a disciplinary proceeding.
(17) "Entity" means a sole proprietorship, partnership, limited liability partnership, limited liability corporation, association, joint venture, cooperative, company, corporation, or other public or private legal entity authorized by law.
(18) "Final decision" means an order of the board that concludes a license application proceeding or formal disciplinary proceeding.
(19) "Formal complaint" means a formal written complaint charging misconduct by a respondent in violation of this chapter, Chapter 1 of Title 40, or any other provision of law.
(20) "Immediately available" for the purpose of supervising unlicensed personnel means being located within the office and ready for immediate utilization when needed.
(21) "Inactive license" means the official temporary retirement of a person's authorization to practice upon the person's notice to the board that the person does not wish to practice.
(22) "Incompetence" means the failure of a licensee to demonstrate and apply the knowledge, skill, and care that is ordinarily possessed and exercised by other practitioners of the same licensure status and required by the generally accepted standards of the profession. Charges of incompetence may be based upon a single act of incompetence or upon a course of conduct or series of acts or omissions that extend over a period of time and that, taken as a whole, demonstrate incompetence. It is not necessary to show that actual harm resulted from the act or omission or series of acts or omissions if the conduct is such that harm could have resulted to the patient or to the public from the act or omission or series of acts or omissions.
(23) "Independent credentials verification organization" means an entity approved by the board to provide primary source verification of an applicant's identity, medical education, postgraduate training, examination history, disciplinary history, and other core information required for licensure in this State.
(24) "Initial complaint" means a brief statement that alleges misconduct on the part of a licensee.
(25) "Initial licensure" means the first authorization to practice issued to a person by a licensing authority in this State or any other state.
(26) "Lapsed license" means an authorization to practice that no longer authorizes practice in this State due to the person's failure to renew the authorization within the renewal period.
(27) "Letter of caution or concern" means a written caution or warning about past or future conduct issued when it is determined that no misconduct has been committed. The issuance of a letter of caution or concern is not a form of discipline and does not constitute a finding of misconduct. The fact that a letter of caution or concern has been issued must not be considered in a subsequent disciplinary proceeding against a person authorized to practice unless the caution or warning contained in the letter of caution or concern is relevant to the misconduct alleged in the proceedings.
(28) "License" means a current document authorizing a person to practice.
(29) "Licensed in good standing" means that one's authorization to practice has not been revoked and there are no restrictions or limitations currently in effect. Public reprimands issued less than five years from the date an application is received by the board are considered restrictions upon practice.
(30) "Limited license" means a current time-limited and practice-limited document that authorizes practice at the level for which one is seeking licensure.
(31) "Misconduct" means violation of any of the provisions of this chapter or regulations promulgated by the board pursuant to this chapter or violation of any of the principles of ethics as adopted by the board or incompetence or unprofessional conduct.
(32) "Osteopathic medicine" means a complete school of medicine and surgery utilizing all methods of diagnosis and treatment in health and disease and placing special emphasis on the interrelationship of the musculo-skeletal system to all other body systems.
(33) "Pending disciplinary action" means an action or proceeding initiated by a formal complaint.
(34) "Person" means a natural person, male or female.
(35) "Physician" means a doctor of medicine or doctor of osteopathic medicine licensed by the South Carolina Board of Medical Examiners.
(36) "Practice of Medicine" means:
(a) advertising, holding out to the public or representing in any manner that one is authorized to practice medicine in this State;
(b) offering or undertaking to prescribe, order, give, or administer any drug or medicine for the use of any other person;
(c) offering or undertaking to prevent or to diagnose, correct or treat in any manner, or by any means, methods, or devices, disease, illness, pain, wound, fracture, infirmity, defect, or abnormal physical or mental condition of a person, including the management or pregnancy and parturition;
(d) offering or undertaking to perform any surgical operation upon a person;
(e) rendering a written or otherwise documented medical opinion concerning the diagnosis or treatment of a patient or the actual rendering of treatment to a patient within this State by a physician located outside the State as a result of transmission of individual patient data by electronic or other means from within a state to such physician or his or her agent;
(f) rendering a determination of medical necessity or a decision affecting the diagnosis and/or treatment of a patient is the practice of medicine subject to all of the powers provided to the Board of Medical Examiners, except as provided in Section 38-59-25;
(g) using the designation Doctor, Doctor of Medicine, Doctor of Osteopathic Medicine, Physician, Surgeon, Physician and Surgeon, Dr., M.D., D.O., or any combination of these in the conduct of any occupation or profession pertaining to the prevention, diagnosis, or treatment of human disease or condition unless such a designation additionally contains the description of another branch of the healing arts for which one holds a valid license in this State that is applicable to the clinical setting; and
(h) testifying as a physician in an administrative, civil, or criminal proceeding in this State by expressing an expert medical opinion.
(37) "Practitioner" means a person who has been issued an authorization to practice in this State. The term does not include persons who have not been issued a license, registration, certification, or other authorization to practice in this State, except as provided by law for persons licensed in another state or jurisdiction.
(38) "Presiding officer" means the chairman of the hearing panel or a designee. When no chair of the hearing panel has been designated, the term includes the chairman or vice chairman of the board or a designee. A person designated to act on behalf of the chairman of the board or a hearing panel may not have been involved with the investigation or prosecution of the particular matter.
(39) "Private reprimand" means a statement by the board that misconduct was committed by a person authorized to practice which has been declared confidential and which is not subject to disclosure as a public document.
(40) "Probation" means the issuance of an authorization to practice conditioned upon compliance with terms and conditions imposed by a licensing board in this State or another state. The holder of the authorization to practice on probation may petition the board for reinstatement to full, unrestricted practice upon compliance with all terms and conditions imposed by the board.
(41) "Public reprimand" means a publicly available statement of the board that misconduct was committed by a person authorized to practice.
(42) "Reactivation" means the restoration to active status of an authorization from inactive status.
(43) "Readily available" means the physician must be in near proximity and is able to be contacted either in person or by telecommunications or other electronic means to provide consultation and advice to the practitioner performing delegated medical acts. When application is made for more than the equivalent of three full-time NPs, CNMs, or CNSs to practice with one physician, or when a NP, CNM, or CNS is performing delegated medical acts in a practice site greater than forty-five miles from the physician, the Board of Nursing and the Board of Medical Examiners shall review the application to determine if adequate supervision exists.
(44) "Reinstatement" means an action of the board in a disciplinary matter that authorizes the resumption of practice upon any terms or conditions ordered or agreed to by the board.
(45) "Relinquish" means to permanently cancel or invalidate an authorization instead of disciplinary proceedings or final decision by the board. A person whose authorization to practice has been relinquished to the board is permanently ineligible for a license or other authorization of any kind from the board. Relinquishment is irrevocable, an admission of any or all of the allegations of misconduct, and reported and treated as a permanent revocation.
(46) "Respondent" means a person charged with responding in a disciplinary or other administrative action.
(47) "Revocation" means the permanent cancellation or withdrawal of an authorization issued by the board. A person whose authorization has been permanently revoked by the board is permanently ineligible for an authorization of any kind from the board.
(48) "Significant disciplinary action" means a public decision in a disciplinary matter that involves substantial issues of professional or ethical competence or qualification to practice. The board may consider any actions taken by the original board or conduct considered relevant to the applicant's fitness for licensure to practice in this State.
(49) "State identification bureau" means an authorized governmental agency responsible for receiving and screening the results of criminal history records checks in this State or another state.
(50) "Supervision" means the process of critically observing, directing, and evaluating another person's performance, unless otherwise provided by law.
(51) "Suspension" means the temporary withdrawal of authorization to practice for either a definite or indefinite period of time ordered by the board. The holder of a suspended authorization to practice may petition the board for reinstatement to practice upon compliance with all terms and conditions imposed by the board.
(52) "Telemedicine" means the practice of medicine using electronic communications, information technology, or other means between a licensee in one location and a patient in another location with or without an intervening practitioner.
(53) "Temporary license" means a current, time-limited document that authorizes practice at the level for which one is seeking licensure.
(54) "Unprofessional conduct" means acts or behavior that fail to meet the minimally acceptable standard expected of similarly situated professionals including, but not limited to, conduct that may be harmful to the health, safety, and welfare of the public, conduct that may reflect negatively on one's fitness to practice, or conduct that may violate any provision of the code of ethics adopted by the board or a specialty.
(55) "Voluntary surrender" means forgoing the authorization to practice by the subject of an initial or formal complaint pending further order of the board. It anticipates other formal action by the board and allows any suspension subsequently imposed to include this time.
(56) "Volunteer license" means authorization of a retired practitioner to provide medical services to others through an identified charitable organization without remuneration.
HISTORY: 2006 Act No. 385, Section 1; 2008 Act No. 411, Section 6; 2016 Act No. 210 (S.1035), Section 3, eff June 3, 2016.
Editor's Note
On August 24, 2006, the Supreme Court of South Carolina issued the following order, 2006-08-24-01, RE: Act No. 385 of 2006 - relating to defining the "practice of medicine":
"Act No. 385 of 2006 - ratified 6/7/2006 and effective 6/9/2006 - substantially revises Chapter 47 of Title 40 of the South Carolina Code; the chapter dealing with 'physicians, surgeons, and osteopaths.' The Act contains the following language:
'Practice of Medicine' means:
***
'(h) testifying as a physician in an administrative, civil, or criminal proceeding in this State by expressing an expert medical opinion.'
"Section 40-47-20(36), Act No. 385, 2006 S.C. Acts ___. Furthermore, the Act provides significant detail regarding the information that the South Carolina Board of Medical Examiners shall require before issuing a 'limited license' to a physician licensed in good standing in another state who has been engaged to testify as an expert medical witness in an administrative or judicial proceeding in South Carolina. Section 40-47-35, Act No. 385, 2006 S.C. Acts ___.
"Traditionally, court rules allowed any witness who was qualified as an expert by knowledge, skill, experience, training, or education to offer expert testimony in a South Carolina court. Rule 702, SCRE. Furthermore, in a lawsuit alleging a cause of action for medical malpractice, the general rule is that expert testimony is required to show that the defendant failed to conform to the required standard of care; specifically, the reasonable and ordinary knowledge, skill, and diligence physicians in similar neighborhoods and surroundings ordinarily use under like circumstances. Green v. Lilliewood, 272 S.C. 186, 192, 249 S.E.2d 910, 913 (1978) (quoting Jarboe v. Harting, 397 S.W.2d 775, 778 (Ky. 1965)). Thus, although no South Carolina statute or court rule has ever embraced the higher scrutiny applied as a pre-requisite for the admission of expert testimony enunciated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), our rules have always charged the court with performing a 'gate keeping' function in limiting the presentation of expert testimony to situations where the testimony will assist the trier of fact in understanding evidence or determining a fact in issue.1
"After careful consideration, we believe that while the General Assembly certainly sought, through Act 385, to make needed revisions to the methods South Carolina courts utilize in the area of expert medical testimony, the effect of the revised statutes has the potential to substantially impair the orderly administration of justice. Specifically, Act 385 casts serious doubt on a physician's ability to offer testimony regarding the treatment provided to a witness, party litigant, or criminal defendant if the physician, at the time of trial, resides outside of South Carolina. This categorical exclusion overlooks the fact that the physician may have treated the patient in the physician's home jurisdiction, and also that the physician, although at one time licensed and providing treatment to the patient in South Carolina, has relocated out of this state. We believe requiring a treating physician to seek a South Carolina medical license before offering often necessary testimony strains Act 385 far beyond its intended scope.
"Additionally, Act 385 is ambiguous as to its relevance to pre-trial practices and proceedings that are of fundamental importance to the judicial process. For example, Act 385's applicability to witnesses used during discovery that might not be used at trial is unclear. Furthermore, although expert testimony is traditionally presented by a witness offering live testimony, lawyers often draw heavily from learned treatises authored by prominent national experts. It would do a great disservice to our system of justice if the doors of South Carolina courtrooms were closed to these scholarly works and the country's leading medical scholars, who may have no intentions of ever visiting this jurisdiction, because our state law would deem them unqualified to offer expert testimony by virtue of their refusal to subject themselves to the disciplinary authority of the South Carolina Board of Medical Examiners.2
"The South Carolina Constitution vests this Court with the authority to make rules governing the administration of the unified South Carolina court system. S.C. Const. Art V, Section 4. In order to prevent a significant impairment to this Court's duty to properly administer the judicial power of South Carolina, and pursuant to Article V, Section 4's authority, we hereby temporarily delay judicial enforcement of Act 385 insofar as the Act requires a physician to obtain a license to practice medicine in South Carolina before offering expert medical testimony in a South Carolina administrative or court proceeding.3
"While we remain respectful of the General Assembly's voice in matters of practice and procedure in South Carolina's courts, this Court cannot allow the administration of justice to be substantially impaired. We are confident, however, that when the General Assembly provides further clarity on this matter, the changes that result will reflect careful consideration and deliberation; will consider and account for the scope of the court's existing rules and the need for efficient and orderly court administration; and will be subjected to close scrutiny in the Judiciary Committees of both the South Carolina Senate and the House of Representatives.
"This order is effective immediately and shall remain in effect until further order of this Court.
"FOOTNOTES:
"1In Daubert, the United States Supreme Court interpreted Rule 702 of the Federal Rules of Evidence to require trial courts to ensure that all testimony offered as expert scientific, technical, or specialized testimony be both relevant and reliable, be grounded in scientific methods and procedures, and be supported by appropriate scientific validation. 509 U.S. at 589-92. Furthermore, the court interpreted federal evidentiary rules to require 'a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.' Id. at 592-93. Although Rule 702, SCRE, contains identical language to the federal rule, we have expressly declined to adopt this interpretation in South Carolina. See State v. Council, 335 S.C. 1, 20, 515 S.E.2d 508, 518 (1999) (declining to adopt Daubert; interpreting the South Carolina Rules of Evidence to require the trial judge to determine that the evidence will assist the trier of fact, that the expert witness is qualified, and that the underlying science is reliable; and adopting the factors set forth in State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979) for determining the reliability of the offered evidence).
"2We also note that although Title 40 of the Code has always contained civil and criminal penalties for violations of the title's licensing requirements and for aiding and abetting one who violates those provisions, see S.C. Code Ann. Sections 40-1-210, 40-47-260 (2001), Act 385's significantly broader definition of the 'practice of medicine' and licensing requirements now introduce the possibility of incurring these penalties in connection with conducting a trial in South Carolina.
"Furthermore, the Act defines the 'practice of medicine' to include 'rendering a written or otherwise documented medical opinion concerning the diagnosis or treatment of a patient or the actual rendering of treatment to a patient within this State by a physician located outside the State as a result of transmission of individual patient data by electronic or other means from within a state to such physician or his or her agent.' Section 40-47-20(36), Act No. 385, 2006 S.C. Acts ___. In an effort to ensure that unintended consequences do not overwhelm the noble motives of the legislation, these factors further necessitate our issuing this order.
"3Because we are not presently presented with a case or controversy questioning the constitutionality of Act 385, we reserve those serious questions for another day. At the present, we rely exclusively on our Constitutional authority to police the orderly administration of justice in the South Carolina courts."
Prior Laws:1904 (24) 512; 1905 (24) 938; 1908 (25) 1083; Civ. C. '12 Section 1618; 1920 (31) 1004; Civ. C. '22 Section 2400; 1932 Code Section 5150; 1942 Code Section 5150; 1952 Code Section 56-1354; 1962 Code Section 56-1354; 1976 Code Section 40-47-40.
Effect of Amendment
2016 Act No. 210, Section 3, added (52), definition of telemedicine, and redesignated former (52) through (55) as (53) through (56).
