24 Del. Admin. Code § 1700-17.0
Current through Register Vol. 28, No. 3, September 1, 2024
Section 1700-17.0 - Disciplinary Guidelines [Authority: 24 Del.C. Section 1713 (f)]17.1 Purpose: The Legislature has created the Board of Medical Licensure and Discipline to assure the protection of the public from persons who do not meet the minimum requirements for safe practice or who pose a danger to the public. Pursuant to 24 Del.C. § 1713(f), the Board provides the disciplinary guidelines it will apply to licensees regulated under 24 Delaware Code, Chapter 17, after a full investigation and at the conclusion of a hearing after finding violations of the Board's statute and/or regulations. The purpose of this rule is to notify applicants of the ranges of penalties which may be imposed unless the Board finds grounds to deviate from the guidelines due to aggravating or mitigating circumstances (Rules 31.12 and 31.13). The practice of medicine is already subject to both civil and criminal penalties. Recognizing its role as protector of the public's health, safety, and welfare, the Board offers these guidelines as a means to improve the quality of medical care and not to enforce the penal code, a responsibility left to law enforcement and to the courts. The purpose of imposing discipline is to sanction licensees for violation; deter them from future violations; to offer opportunities for rehabilitation when appropriate; and to dissuade other applicants and licensees from committing disciplinable offenses.17.2 Violations and Range of Penalties: When imposing discipline, the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations unless grounds to deviate are found. The following identification of categories of offenses and summary explanations are intended to be descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included.17.3 Negligence is an act or omission that deviates from accepted standards of practice in the medical community 17.3.1 Gross Negligence - a range from 1 year probation with education to 1 year suspension with reinstatement upon proof of improvement in practice proficiency - §1731(b)(11)17.3.2 Pattern of Negligence - a range from 1 year probation to suspension with reinstatement after proof of satisfactory improvement - §1731(b)(11)17.4 Incompetence is failing to exercise appropriate professional judgment or failing to utilize skill to a degree showing a lack of general competence.17.4.1 Incompetence in Practice - practice reviewed by organization of the Board's choice and a range from 1 year probation to revocation - §1731(b)(11)17.4.2 Failure to Use Skill or Judgment - practice reviewed by an organization of the Board's choice and a range from $1,000 fine to 6 months probation17.4.3 Incompetent Acts of Supervision - range from $1,000 fine to $1,000 fine and letter of reprimand - §1731(b)(10)17.5 Misconduct is that conduct which is recognized to be unsafe or improper by the ethical and competent members of the profession. The term also includes, but is not limited to, general conduct that is dishonorable or unprofessional and that is not addressed in other categories within these guidelines, and includes acts prohibited by policies expressed in legislation. 17.5.1 General Misconduct - a range from $1,000 fine to 6 months suspension - §1731(b)(1); §1731(b)(3); §1731(b)(4); §1731(b)(5); §1731(b)(9); §1731(b)(11); §1731(b)(19)17.5.2 Willful Failure to Report - minimum $5,000 fine and/or 6 months probation - §1731(b)(13); §1731(b) 14; §1731(b)(15); §1731(b)(22)17.5.3 Unjustified Failure to Cooperate - a range from 6 months probation to 6 months suspension - §1731(b)(16); §1731(b)(17)17.6 Criminal Conduct is conduct which violates rules and statutes that define conduct prohibited by the government. Such unprofessional conduct reflects upon the licensee's fitness and qualifications to practice in the healthcare field and detracts from the trust of the public.17.6.1 Crimes Substantially Related - a range from 90 days probation to suspension with reinstatement only after proof satisfactory to the board of practice improvement, not to be less than any court-ordered sanctions - §1731(b)(2)17.6.2 Felony Sexual Offenses - revocation - §1731(a)17.7 Sexual Misconduct - These guidelines cannot define or foresee all the possible scenarios of sexual misconduct. The professional boundary required between physician and patient is based upon the fiduciary relationship in which the patient entrusts his or her welfare to the physician, reflects the physician's respect for the patient. That boundary, once crossed, severely impacts the patient's well-being on an individual basis, and causes distrust to other professional relationships in general. Sexual misconduct is a harmful example of a boundary violation, occurring in multiple contexts and involving a wide range of behaviors. Sexual misconduct includes but is not limited to, sexual impropriety towards a patient, sexual conduct towards patients, sexual harassment in the workplace facilitating a hostile work environment, sexual conduct between supervisors and subordinates, the commission of sexual assault and other sexual crimes. 17.7.1 Sexual involvement can occur in circumstances involving two consenting adults. However, sexual involvement with a current patient is considered misconduct. It is the responsibility of the physician to transfer the patient's care to another health care provider if they foresee a romantic or sexual relationship developing.17.7.2 Sexual involvement with former patients is misconduct when the licensee exploits knowledge or information obtained from the previous physician-patient relationship. Sexual or romantic relationships between physicians and their patients may exploit the vulnerability of the patient and may obscure the physician's objective judgment concerning the patient's health care. Sexual misconduct between a physician and a patient is never diagnostic or therapeutic. Romantic or intimate relationships may impede the physician's ability to confront the patient about noncompliance with treatment or to bring up unpleasant medical information. Physicians must set aside their own needs or interests in the service of addressing the patient's needs. The physician-patient relationship depends upon the ability of the patient to have absolute confidence and trust in the physician, and a patient has the right to believe that a physician is dedicated solely to the patient's best interests. When considering action related to sexual involvement with a former patient the Board should consider the extent, if any, to which the (medical provider) exploited the previous patient-provider relationship.17.7.3 Sexual impropriety may include, but is not limited to, sexually suggestive behavior, gestures, expressions, statements, and it may include failing to respect a patient's privacy such as in the following examples:17.7.3.1 failing to employ disrobing or draping practices that respect the patient's privacy (except in the case of examination in an emergency setting);17.7.3.2 examination or touching of a patient's genital region without donning gloves without clinical justification;17.7.3.3 inappropriate comments to a patient about the patient's body, sexual orientation, or potential sexual performance during the examination; and17.7.3.4 performing an intimate examination without clinical justification17.7.4 Sexual misconduct may include, but is not limited to, physical contact such as: 17.7.4.1 touching breasts, genitals, or other body part without clinical justification; and17.7.4.2 offering clinical services or prescriptions in exchange for sexual favors.17.7.5 Sexual Relations with a Patient - a range from 6 months suspensions to revocation17.7.6 Sexual Impropriety Involving Current Patients - education on boundary issues and a range of minimum $1,000 fine to maximum $10,000 fine to suspension - §1731(b)(23)17.7.7 Sexual Harassment Associated with Practice (employees) - education on sexual harassment and a $1,000 fine and a letter of reprimand17.8 Billing/Business Issues, includes but is not limited to, charging grossly exorbitant fees for services, failure to report laboratory costs and failure to disclose to the patient a financial interest. 17.8.1 Financial Exploitation of Patients or Fraud of Others - a range from a minimum $1,000 fine to 6 months probation - §1731(b)(8); §1731(b)(18); § 176917.8.2 Other Wrongful Transactions - education on billing and a $1,000 fine and letter of reprimand17.9 False Advertising, includes but is not limited to, false or prohibited statements, exploitation, or economic injury - $1,000 fine and letter of reprimand - §1731(b)(7); §1731(b)(8)17.10 Impairment is a condition which renders the licensee unable to practice medicine with reasonable skill or safety. Impaired licensees are not only at risk of causing patient harm but are also at risk of causing significant personal endangerment. Impairments include drug abuse, alcohol abuse, and mental or physical conditions that impede the licensee's ability to practice with reasonable skill and safety. 17.10.1 Not cooperating with remediation or non-remediable - a range from 6 months suspension to indefinite suspension until treatment is deemed to be effective17.10.2 Appears remediable but discipline needed - appropriate treatment with probation and/or suspension until remediation is proven to the Board17.11 Administrative Misconduct is conduct that fails to adhere to the standards required for the regulation of the profession. All licensees in their practice have not only professional medical requirements but administrative requirements that are integral to their performance as a licensed physician. Administrative misconduct includes, but is not limited to, disregard of continuing medical education requirements. 17.11.1 Failure to comply with other administrative requirements of the Board - $1,000 fine and letter of reprimand - §1763; § 1769; § 1769A17.11.2 Failure to comply with CME requirements - $1,000 fine and requirement to complete CME within 60 days and license suspended until CME completed, if not completed within 60 days.17.11.3 Violation of a Board Order (§1731(b)(17)) - Suspension until compliance of Board Order is accomplished to revocation17.12 Inappropriate Prescribing is prescribing that fails to follow medically accepted standards to ensure the patients health and safety. It includes, but is not limited to, misconduct as the failure to follow required procedures that have been established to ensure prescriptions are legitimate, prescribing to family or friends who suffer from addiction or misuse, diversion for self use, and criminal trafficking in dangerous drugs.17.12.1 No legitimate medical purpose - education in pharmacology and a range from a letter of reprimand to suspension - §1731(b)(6)17.12.2 Failure to follow requirements - $1,000 fine and/or a letter of reprimand - §1731(b)(21)17.12.3 Failure to follow the Board's Regulations for the Use of Controlled Substances for the Treatment of Pain - education in pharmacology of pain management and a range from $1,000 fine and probation to revocation17.13 Patient Records Violations - Patient records consist of documentation that reflects the physician-patient relationship and any misuse of the documentation constitutes a patient records violation. Failure to adequately maintain patient records includes, but is not limited to, misconduct such as the failure to adequately document evaluation and/or treatment of the patient, failure to adequately maintain or store the records, and failure to allow the patient or the patient's authorized representative access to the records.17.13.1 False documentationlteration - a range from $2,000 fine and letter of reprimand to 6 months probation17.13.2 Poor documentation - letter of reprimand17.13.3 Confidentiality Issues/HIPPA - education on confidentiality/HIPAA and letter of reprimand - §1731(b)(12)17.13.4 Problems with access to patient records which impedes continuity of care - letter of reprimand - § 176117.13.5 Notice requirement of Office Closure - letter of reprimand - § 176117.13.6 Practice Abandonment - Suspension to revocation17.13.7 Falsely Documenting a Death Certificate - a range from $2,000 fine and letter of reprimand to 6 months probation - §1731(b)(20)17.14 Aggravating (worsening) factors when determining the degree of discipline, the board may consider certain factors, including but not limited to the following: 17.14.1 Prior Disciplinary Offenses17.14.2 Past Disciplinary Record17.14.3 Frequency of Acts17.14.4 Nature and (extreme) gravity of the allegation17.14.5 False evidence, false statements, other deceptive practices during disciplinary process or proceedings and during the investigative process17.14.6 Dishonest or selfish motive17.14.7 Motivation; criminal dishonest; or personal gain17.14.8 Different multiple offenses17.14.9 Failing to comply with rules or orders17.14.10 Refusal to acknowledge wrongful nature of conduct and vulnerability of the victim17.14.13 Consensus about blameworthiness of conduct17.14.14 No consent of patient/Against patient's will17.14.15 Age capacity or vulnerability of patient or victim of licensee's misconduct17.14.16 Severe injury caused by misconduct17.14.17 Potential for injury ensuing from act17.14.18 Practitioner present competence in medical skills17.14.19 Pattern of misconduct17.14.21 Heinousness of actions17.14.22 Ill repute upon profession17.14.23 Public's perception of protection17.15 Mitigating (lessening) factors when determining the degree of discipline, the board may consider certain factors, including but not limited to the following: 17.15.1 Absence of prior disciplinary record17.15.3 Nature and (minimal) gravity of the allegation17.15.4 Voluntary restitution or other actions taken to remedy the misconduct17.15.5 Remorse and/or consciousness of wrongful conduct17.15.6 Absence of dishonest or selfish motive17.15.7 Timely good faith effort to rectify consequences of misconduct17.15.8 Interim rehabilitation17.15.9 Remoteness of prior offenses17.15.10 Length of time that has elapsed since misconduct17.15.12 Consent of patient17.15.13 No apparent vulnerability of patient17.15.14 No significant injury caused by misconduct17.15.15 No significant potential for injury ensuing from act17.15.16 No evidence of motivation of criminal; dishonest or personal gain17.15.17 Mental or physical health; weak health; cancer17.15.18 Personal circumstances17.15.19 Present fitness of the practitioner17.15.20 Potential for successful rehabilitation17.15.21 Practitioner's present competence in medical skills17.15.22 Personal problems (if there is a connection to violation)17.15.23 Emotional problems (If there is a connection to violation)17.15.24 Isolated incident unlikely to reoccur17.15.25 Public's perception of protection17.16 Applicability: These guidelines are applicable to all professions or occupations regulated under the Medical Practice Act. The guidelines will be construed to apply to any substantially similar violations or offenses under the specific statutory or regulatory provisions applicable to those professions or occupations regardless of whether the code section or regulation is specifically referenced herein.24 Del. Admin. Code § 1700-17.0