2010 Tennessee Code
Title 63 - Professions Of The Healing Arts
Chapter 6 - Medicine and Surgery
Part 2 - General Provisions
63-6-214 - Grounds for license denial, suspension or revocation Reporting misconduct.

63-6-214. Grounds for license denial, suspension or revocation Reporting misconduct.

(a)  The board has the power to:

     (1)  Deny an application for a license to any applicant who applies for the same through reciprocity or otherwise;

     (2)  Permanently or temporarily withhold issuance of a license;

     (3)  Suspend or limit or restrict a previously issued license for such time and in such manner as the board may determine;

     (4)  Reprimand or take such action in relation to disciplining an applicant or licensee, including, but not limited to, informal settlements, private censures and warnings, as the board in its discretion may deem proper; or

     (5)  Permanently revoke a license.

(b)  The grounds upon which the board shall exercise such power include, but are not limited to:

     (1)  Unprofessional, dishonorable or unethical conduct;

     (2)  Violation or attempted violation, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provision of this chapter or any lawful order of the board issued pursuant thereto, or any criminal statute of the state of Tennessee;

     (3)  Making false statements or representations, being guilty of fraud or deceit in obtaining admission to practice, or being guilty of fraud or deceit in the practice of medicine;

     (4)  Gross malpractice, or a pattern of continued or repeated malpractice, ignorance, negligence or incompetence in the course of medical practice;

     (5)  Habitual intoxication or personal misuse of any drugs or the use of intoxicating liquors, narcotics, controlled substances or other drugs or stimulants in such manner as to adversely affect the person's ability to practice medicine;

     (6)  Violation of the laws governing abortion;

     (7)  Willfully betraying a professional secret;

     (8)  The advertising of medical business in which untrue or misleading statements are made, or causing the publication or circulation of fraudulent advertising relative to any disease, human ailment or conditions;

     (9)  Willful violation of the rules and regulations promulgated by the board of medical examiners to regulate advertising by practitioners who are under the jurisdiction of such board;

     (10)  Conviction of a felony, conviction of any offense under state or federal drug laws, or conviction of any offense involving moral turpitude;

     (11)  Making or signing in one's professional capacity any certificate that is known to be false at the time one makes or signs such certificate;

     (12)  Dispensing, prescribing or otherwise distributing any controlled substance or any other drug not in the course of professional practice, or not in good faith to relieve pain and suffering, or not to cure an ailment, physical infirmity or disease, or in amounts and/or for durations not medically necessary, advisable or justified for a diagnosed condition;

     (13)  Dispensing, prescribing or otherwise distributing to any person a controlled substance or other drug if such person is addicted to the habit of using controlled substances without making a bona fide effort to cure the habit of such patient;

     (14)  Dispensing, prescribing or otherwise distributing any controlled substance or other drug to any person in violation of any law of the state or of the United States;

     (15)  Offering, undertaking or agreeing to cure or treat a disease, injury, ailment or infirmity by a secret means, method, device or instrumentality;

     (16)  Giving or receiving, or aiding or abetting the giving or receiving, of rebates, either directly or indirectly;

     (17)  Engaging in the practice of medicine under a false or assumed name, or the impersonation of another practitioner, or a like, similar or different name;

     (18)  Engaging in the practice of medicine when mentally or physically unable to safely do so;

     (19)  Using radiation in the treatment of any noncancerous disease, disorder or condition of the skin without first adequately warning the patient of the extent of any known risk of cancer associated with such treatment or repetition of such treatment. Receipt of such advance warning shall be acknowledged by signature of the patient or, in the case of a minor, the patient's parent or guardian and shall be retained by the physician for the period prescribed by the board; and

     (20)  Disciplinary action against a person licensed to practice medicine by another state or territory of the United States for any acts or omissions that would constitute grounds for discipline of a person licensed in this state. A certified copy of the initial or final order or other equivalent document memorializing the disciplinary action from the disciplining state or territory shall constitute prima facie evidence of violation of this section and be sufficient grounds upon which to deny, restrict or condition licensure or renewal and/or discipline a person licensed in this state;

     (21)  (A)  Transferring of patient medical information to a person in another state who is not licensed to practice medicine or osteopathy in the state of Tennessee using any electronic, telephonic or fiber optic means or by any other method if such information is employed to diagnose and/or treat persons physically located within the state of Tennessee.

          (B)  Notwithstanding the provisions of subdivision (b)(21)(A), the transfer of such information shall not be prohibited if:

                (i)  Such information is to be used for a second opinion requested by a Tennessee licensed medical doctor or osteopathic physician;

                (ii)  Such information is to be used by an out-of-state physician for treatment of a person who is seeking treatment out of Tennessee;

                (iii)  Such information is used to determine if such patient is covered by insurance;

                (iv)  Such information is used by a physician in another state to provide occasional academic consultations to a medical school located in Tennessee;

                (v)  Such information is used by insurance or related companies for risk evaluation, utilization review, claims processing and/or evaluation of claimants' rehabilitation including establishing and administering rehabilitation plans. The establishing and administering of such rehabilitation plans shall not include the diagnosis and/or treatment of persons physically located within Tennessee as prohibited by subdivision (b)(21)(A); or

                (vi)  Such information is used in clinical trials for drugs approved by the food and drug administration.

          (C)  The provisions of this subdivision (b)(21) do not apply to research hospitals, as defined in § 63-6-204(f)(7)(I).

          (D)  The provisions of this subdivision (b)(21) only apply to X-rays and medical imaging; and

     (22)  No person licensed in this state to practice medicine shall agree or contract with any clinical, bioanalytical or hospital laboratory, wherever located, to pay such laboratory for anatomic pathology services or cytology services and thereafter include such costs in the bill or statement submitted to the patient or any entity or person for payment, unless the practitioner discloses on the bill or statement, or in writing by a separate disclosure statement in a minimum print size of ten (10) font, the name and address of the laboratory and the net amount or amounts paid or to be paid to the laboratory for the anatomic pathology services or cytology services. The provisions of this subdivision (b)(22) shall not apply to the state or any local government.

(c)  In enforcing this section, the board shall upon probable cause have authority to compel an applicant or licensee to submit to a mental and/or physical examination by a designated committee of at least three (3) practicing physicians, including a psychiatrist where a question of mental condition is involved. The applicant or licensee may have an independent medical practitioner present during such examination, and the applicant may have an independent physical or mental examination, which examination report shall be filed with the board for consideration. The committee will submit a report of its findings to the board, which will then hold a hearing as provided in § 63-6-216.

(d)  The board on its own motion may investigate any report indicating that a doctor of medicine is or may be in violation of the provisions of subsection (b). Any doctor of medicine, any medical society or any other person who in good faith shall report to the board any information that a doctor of medicine is or may be in violation of any of the provisions of subsection (b) shall not be subject to suit for civil damages as a result thereof.

(e)  Within thirty (30) days after the conviction of a person known to be a physician, licensed or otherwise lawfully practicing within this state or applying to be so licensed or to practice, of a felony under the laws of this state, the clerk of the court of record in which the conviction was entered shall prepare and forward to the board a certified true and correct abstract of record of the court governing the case. The abstract shall include the name and address of the physician or applicant, the nature of the offense committed, the sentence, and the judgment of the court. The board shall prepare the form of the abstract and shall distribute copies thereof to all clerks of courts of record within this state with appropriate instruction for preparation and filing.

(f)  The board shall report within sixty (60) days its action regarding restriction, suspension or revocation of a physician's license, limitation on practice privileges, or other disciplinary action of the board against any physician to appropriate federal and state agencies. The board may report any of the above mentioned disciplinary actions to the Federation of State Medical Boards of the United States and the Tennessee Medical Association.

(g)  For purposes of actions taken pursuant to subdivisions (b)(4), (12) and (13) or any other subsection in which the standard of care is an issue, any Tennessee licensed physician serving as a board member, hearing officer, designee, arbitrator or mediator is entitled to rely upon that person's own expertise in making determinations concerning the standard of care and is not subject to voir dire concerning such expertise. Expert testimony is not necessary to establish the standard of care. The standard of care for such actions is a statewide standard of minimal competency and practice that does not depend upon expert testimony for its establishment. However, to sustain actions based upon a violation of this standard of care, the board must, in the absence of admissions or other testimony by any respondent or such respondent's agent to the effect that the standard was violated, articulate what the standard of care is in its deliberations. The provisions of title 29, chapter 26, and specifically § 29-26-115, concerning the locality rule, do not apply to actions taken pursuant to this chapter.

(h)  (1)  All materials, documents and other matters relating to, compiled or created pursuant to an investigation conducted by the board's investigators against any health care practitioner under the board's jurisdiction, shall be exempt from the public records act until the filing of a notice of charges. After the filing of a notice of charges, only the information and those materials and documents upon which the charges are based are available for disclosure under the public records act; provided, that the identifying information of the following, as well as all investigator created documents and reports, shall remain confidential at all times unless and until introduced in the proceedings:

          (A)  A complainant;

          (B)  Any witness who requests anonymity;

          (C)  A patient; and

          (D)  Medical records.

     (2)  This section does not modify or limit the prehearing discovery provisions set forth in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.

(i)  (1)  The board may utilize one (1) or more screening panels in its investigative and disciplinary process to assure that complaints filed and investigations conducted are meritorious, and to act as a mechanism for diversion, to professional peer review organizations and/or impaired professionals associations or foundations, those cases that the board, through established guidelines, deems appropriate; upon diversion, such entities shall retain the same immunity as provided by law for the board.

     (2)  The screening panels shall consist of as many members as the board directs, but shall include at least one (1) but no more than three (3) licensed physicians, who may be members of the board or may serve either voluntarily or through employment by or under contract with the board;

     (3)  The activities of the screening panels, and any mediation or arbitration sessions shall not be construed as meetings of an agency for purposes of the Open Meetings Act and, to the extent required by subdivision (h)(2), shall remain confidential. The members of the screening panels, mediators and arbitrators have a deliberative privilege and the same immunity as provided by law for the board, and are not subject to deposition or subpoena to testify regarding any matter or issue raised in any contested case, criminal prosecution or civil lawsuit that may result from or be incident to cases processed before them.

(j)  Notwithstanding any provision of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to the contrary, hearing officers are authorized to, and may hear board mediation, arbitration or disciplinary contested cases, but may not issue final orders in contested case matters. Notwithstanding any of the provisions of §§ 4-5-314 and 4-5-315, which may be or are inconsistent, such hearing officers may only issue findings of fact and conclusions of law, which shall be referred directly to the board or a duly constituted panel thereof for final action. The board or duly constituted panel, after hearing testimony and arguments from both parties regarding the appropriate disciplinary action and, if allowed by the board, arguments on any controversy raised by the hearing officer's or designee's order, shall issue a final order to include the imposition of what, if any, disciplinary action is deemed appropriate. Only the board or a duly constituted panel thereof shall have the authority to issue final orders that dispose of a pending contested case regardless of whether the issues resulting in the dispositive action are procedural, substantive, factual or legal. If a hearing officer is not available when a contested case, or any motion filed therein requiring action, is ready and scheduled to be heard or fails to timely prepare findings and conclusions pursuant to board established guidelines, the board or a duly constituted panel thereof may rule on the motions and/or hear the contested case or utilize the record compiled before the hearing officers and prepare its own findings of fact, conclusions of law and then issue a final order. With regard to findings and conclusions issued by the hearing officer, or any mediator or arbitrator, the board or any duly constituted panel thereof that reviews the case may do any of the following:

     (1)  Adopt the hearing officer's, mediator's or arbitrator's findings of fact and conclusions of law, in whole or in part;

     (2)  Make its own findings of fact and conclusions of law, based solely on the record and the expertise of the members of the board or panel, in addition to or in substitution of those made by the hearing officer, mediator or arbitrator;

     (3)  Remand the matter back to the hearing officer, mediator or arbitrator for action consistent with the board or panel findings and conclusions in the matter; or

     (4)  Reverse the hearing officer's, mediator's or arbitrator's findings and/or dismiss the matter entirely.

(k)  The board retains jurisdiction to modify or refuse to modify, upon request of any party, any of its orders issued pursuant to this section in compliance with procedures established by the board. The board, pursuant to duly promulgated rules, may, whenever a final order is issued after a disciplinary contested case hearing that contains findings that a licensee or other person has violated any provision of this chapter, assess the costs directly related to the prosecution of the case against the licensee or person.

(l)  Any elected officer of the board, or any duly appointed or elected chair of any panel of the board, or any screening panel, and any hearing officer, arbitrator or mediator has the authority to administer oaths to witnesses, and upon probable cause being established, issue subpoenas for the attendance of witnesses and the production of documents and records.

(m)  Notwithstanding any provision of this chapter or chapter 9 of this title, or any rule or regulation promulgated thereto to the contrary, it shall not be a violation for a physician or osteopathic physician to prescribe, order, sell or otherwise distribute the Schedule IV drugs fenfluramine, its salts and isomers, and salts of isomers, and phentermine, for their currently accepted medical use in the United States.

(n)  Notwithstanding any provision of this chapter or chapter 9 of this title, or any rule or regulation promulgated thereto to the contrary, whenever a physician is treating obesity in a child who is under eighteen (18) years of age with Schedule IV drugs fenfluramine, its salts and isomers, and salts of isomers and phentermine, the physician shall:

     (1)  Obtain the consent of the child's parent or guardian; and

     (2)  Determine that the child's body mass index (BMI) is at least twenty-seven (27), or is at least twenty-five (25) with co-morbidities including, but not limited to:

          (A)  Diabetes;

          (B)  Hypertension;

          (C)  Dyslipidemia;

          (D)  Cardiovascular diseases; and

          (E)  Sleep apnea.

[Acts 1901, ch. 78, § 15; Shan., § 3609a29; Acts 1917, ch. 13, § 1; Code 1932, § 6932; Acts 1939, ch. 66, § 1; impl. am. Acts 1947, ch. 9, §§ 2-4, 9; C. Supp. 1950, § 6932; Acts 1975, ch. 355, § 15; 1976, ch. 630, §§ 1, 2; 1979, ch. 129, §§ 1, 2, 3; 1980, ch. 605, § 3; T.C.A. (orig. ed.), § 63-618; Acts 1993, ch. 206, § 1; 1994, ch. 732, § 3; 1995, ch. 329, §§ 3, 4; 1996, ch. 1043, § 6; 1997, ch. 236, §§ 2, 3; 1998, ch. 1039, § 1; 1999, ch. 340, §§ 1, 3, 4; 2004, ch. 715, § 1.]  

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