Chapter 6 Board of Medical Examiners of Nevada
GROUNDS FOR BOARD DISCIPLINE
Offenses Related to a License to Practice Medicine
Prescriptions and Controlled Substances
Misconduct Related to Patients
Misrepresentation and Related Offenses
Miscellaneous Prohibited Conduct
BOARD OF MEDICAL EXAMINERS ENFORCEMENT AUTHORITY
GROUNDS FOR BOARD DISCIPLINE
Nevada Revised Statutes 630.301 through 630.3065 set out the general laws regarding conduct by a physician constituting grounds for the Board of Medical Examiners to initiate disciplinary action or to deny licensure. It is important to note that any sanction imposed upon a physician by the Board may be in addition to any other criminal or civil penalty the physician faces. Conduct constituting grounds for discipline by the Board falls into the following general categories:
1) Criminal Violations;
2) Licensing Violations;
3) Professional Incompetence;
4) Offenses Related to Controlled Substances;
5) Offenses Related to Patient Care;
6) Financial Misconduct;
7) Misrepresentation and Fraud;
8) Record Keeping; and
9) Miscellaneous Administrative Violations.
Although Nevada law terms a medical license as a revocable privilege without any vested right attached, an issued medical license is nonetheless constitutionally protected property right. As such, certain due process rights attach when the state attempts to take or revoke a physicians license. For instance, the Board of Medical Examiners, though possessing broad powers, cannot act recklessly or maliciously when revoking or suspending a physicians license. Mishler v. State Board of Medical Examiners, 896 F.2d 408 (9th Cir. 1989); NRS 630.045. Also, the physician is entitled to have notice of the complaint lodged against him, and to introduce evidence in his defense. The state does, however, have the power to confer jurisdiction upon the Board to restrict or revoke a physicians license under the aegis of the states general police power. Not surprisingly, legislatures and courts justify the broad powers provided medical boards because medical boards are working to enforce the states interest in protecting the publics health and safety. See Boswell v. Board of Medical Examiners, 72 Nev. 20, 293 P.2d 424 (1956). As detailed in this chapter, relevant Nevada laws set out the guidelines, procedures, and protections applicable when a physician faces discipline by the Board of Medical Examiners.
The Board of Medical Examiners begins its investigation and subsequent disciplinary proceedings when it receives information about a physician from a variety of sources. Any person, including a patient who becomes aware that a physician in Nevada has or is about to become engaged in conduct that is grounds for discipline may file a written complaint with the Board. Hospitals, medical facilities, and medical societies are required to report to the Board any changes in a physicians privileges to practice medicine while the physician is under investigation,
and the outcome of any disciplinary action taken against the physician concerning the care of a patient or competency of the physician. Court clerks are required to report to the Board every time there is a finding, judgment, or other determination regarding certain aspects of a physicians conduct. In particular, the clerk must report a finding or determination that the physician is mentally ill or incompetent, if he has been convicted of a felony or any law concerning controlled substances or dangerous drugs, if he is guilty of fraud or abuse under any state or federal health care program, or if he is liable for damages for malpractice or negligence. Physicians also have an obligation to report claims for malpractice against them, and the disposition of those claims. A physicians insurer must also report any claims and their subsequent disposition to the Board. NRS 630.3067. Specifically, the insurer of a physician licensed under this chapter and the physician must report to the board any claim for malpractice or negligence and the settlement, award, judgment or other disposition thereof.
The complaint is received by a committee consisting of at least three members of the Board of Medical Examiners, one of whom cannot be a physician. The committee will review the complaint and conduct an investigation to determine if there is a reasonable basis for the complaint. In conducting its investigation, the committee may order the physician to appear before it, and may order that the physician undergo a mental or physical examination to test his competency to practice medicine. The failure of a physician to submit to the examinations ordered constitutes an almost-automatic admission of the charges against him.
The Board may suspend the license of a physician pending proceedings for disciplinary action. No court can stay the suspension of a physicians license while disciplinary action is pending. NRS 630.329. If a physical or mental examination is ordered and the physicians license suspended, the results of the examination must be available within sixty days of the Boards order. After conducting its investigation, if the committee determines that there is a reasonable basis for the complaint and that a violation of the statutes that govern physicians has occurred, the committee may file a formal complaint with the Board. NRS 630.311.
The Board may also apply to a court for the following injunctive relief, usually while disciplinary action is pending:
1) To enjoin any prohibited act or other conduct of a physician which the Board deems is harmful to the public;
2) To enjoin any person who is not licensed under this chapter from practicing medicine;
3) To limit the physicians practice or suspend his license to practice medicine; or
4) To enjoin the use of the title M.D.
The court is given the power to issue a temporary restraining order or a preliminary injunction pending proceedings for disciplinary action by the Board without having to find proof of actual damages sustained by any person. NRS 630.333.
If the investigating committee decides to proceed with disciplinary action, it will bring charges against the physician. The Board of Medical Examiners must fix a time and place for a formal hearing and must notify the physician of the charges brought against him and of the time and place of the hearing. Either the full Board or a panel of members designated by the Board (the panel must include at least one member who is not a physician) can hold the formal hearing. NRS 630.339.
The physician must be notified of the charges against him either by personal service or by registered mail at his last known address. If neither is possible, the Board must publish notice of the hearing once a week for four consecutive weeks in a newspaper in the county of the physicians last known address. NRS 630.344.
The Board is not bound by the formal rules of evidence in a hearing. This gives the Board great discretion as to the evidence that can be heard and the weight they may give that evidence. For example, no proof of actual injury need be established, and even incompetent witnesses may testify in the hearing. Further, a certified copy from a court or licensing agency showing a conviction or plea of nolo contendere, or the suspension, revocation, limitation, modification, denial, or surrender of a license to practice medicine is conclusive evidence of its occurrence. This means the physician likely will not have the opportunity to challenge the finding. The standard for finding a violation by a physician is a preponderance of the evidence, a fairly easy standard for the Board to meet. NRS 630.346; 630.352. In essence, this standard merely requires that the Board find that it is more likely than not that a violation occurred, it may proceed with the proceeding.
If the Board, using the preponderance of evidence standard, determines that a violation has occurred, it shall serve on the charged physician a written order containing its findings and any sanctions it imposes. As discussed in Enforcement Authority, below, the Board is allowed a wide range of actions to discipline a physician who it finds in violation of its laws and regulations. If the Board determines that no violation has occurred, it shall dismiss the charges in writing.
Several Nevada cases have addressed various aspects of the Board of Medical Examiners disciplinary proceedings. Courts have generally upheld the evidentiary and proof standards laid down by the statutes. For instance, the jurisdiction of the Board is not affected by improperly received evidence. Therefore, a court that reviewed the proceedings of the Board when it revoked the license of a physician for procuring a criminal abortion could not consider whether the evidence was properly received or not. State ex rel. Kassabian v. Board of Medical Examiners, 68 Nev. 455, 235 P.2d 327 (1951). Similarly a certified copy of a judgment of conviction against a physician was sufficient to sustain, for the purposes of independent Board discipline, a finding that the physician was liable for discipline. Board of Medical Examiners v. Potter, 99 Nev. 162, 659 P.2d 868 (1983).
Expert testimony against a charged physician in a license revocation hearing is treated similarly. For example, even if an out-of-state physician may not testify in court because he is not familiar with local medical practices, the Board may bring in an expert who has never been licensed or practiced in Nevada to testify as their sole witness against the charged physician. Mishler v. State Board of Medical Examiners, 109 Nev. 287, 849 P.2d 291 (1993). Even admission of expert testimony that would be held to be an error in a criminal trial is not necessarily a deprivation of the due process rights of the charged physician. Thus, an expert witness was allowed to testify to the veracity of three complainants, who testified concerning certain alleged acts of sexual misconduct by the physician, although the testimony against the physician would have clearly not been allowed in a court of law. Minton v. Board of Medical Examiners, 110 Nev. 1060, 881 P.2d 1339 (1994).
The physician is not totally without rights in the hearing, however. The Board must give the physician an opportunity to be heard. When a physician, charged with attempting to renew his medical license by fraud and misrepresentation and by false, inaccurate, and incomplete statements, stated during his investigation that he inadvertently checked the wrong box on the application, the Nevada Supreme Court held that the physician should have been given the opportunity to have the Board hear his statement. Instead only the hearing officer heard the statement, and since the physicians credibility was a determining factor, the Board denied the physician his due process rights by not hearing from the physician and by not receiving a report from the hearing officer regarding the physicians veracity. Molnar v. State Board of Medical Examiners, 105 Nev. 213, 773 P.2d 726 (1989).
The Board must also preserve the medical records related to the case for the benefit of the charged physician. Thus, in a license revocation proceeding, where the Board controlled access to the medical records, obstructed the physicians access to those records, and destroyed the records before commencement of the disciplinary proceedings, the Nevada Supreme Court held the Boards failure to marshal and preserve the records for the benefit of the physician warranted dismissal of the charges against him. Mishler v. State Board of Medical Examiners, 109 Nev. 287, 849 P.2d 291 (1993).
The Nevada Revised Statutes set out several specific instances of conduct for which physicians may be disciplined. These are scattered throughout Chapter 630 of the Statutes, and to a lesser extent, in Chapter 630 of the Nevada Administrative Code. Except as otherwise indicated, the section below culls these specific instances of conduct from the Nevada Revised Statutes sections 630.301, 630.304, 630.305, 630.306, 630.3062, and 630.3065 (reproduced at the conclusion of the chapter) and organizes the conduct into categories.
Conviction of any felony, any offense involving moral turpitude, or any offense relating to the practice of medicine, or the ability to practice medicine, is grounds for discipline. For the purposes of discipline by the Board, a plea of nolo contendere by a physician constitutes a conviction.
Conviction of violating any of the provisions of NRS 616D.200, 616D.220, 616D.240, 616D.300, 616D.310, or 616D.350 to 616D.440 inclusive (statutes relating to false statements, fraud and misrepresentation in the areas of insurance, billing, and employment benefits) is also grounds for discipline.
Offenses Related to a License to Practice Medicine
Any physician who obtains, maintains, or renews a license to practice medicine, or attempts to do any of the preceding actions through bribery, fraud, or misrepresentation, or by any false, misleading, inaccurate, or incomplete statement will be subject to the full range of discipline by the Board. Practicing or attempting to practice medicine under another name is specifically forbidden.
If a physician has his license to practice any type of medicine in any other jurisdiction suspended, modified, or limited, he may also have his Nevada license restricted or revoked. Even surrendering a license from another jurisdiction or discontinuing the practice of medicine while under investigation by any licensing authority, medical facility, branch of the Armed Services, insurance company, agency of the federal government, or employer will subject a physicians Nevada license to restrictions or revocation. Further, the failure of either a licensed physician or an applicant to report, within 30 days, the revocation, suspension, or surrender of his license to practice medicine in another jurisdiction is itself a violation of the Boards regulations.
The continual failure by a physician to exercise the skill or diligence or use the methods ordinarily exercised under the same circumstances by physicians in good standing practicing in the same specialty or field constitutes grounds for discipline and sanctions.
If the board has reason to believe that the conduct of any physician has raised a reasonable question as to his competence to practice medicine with reasonable skill and safety to patients, it may order that the physician undergo a physical or mental examination to test his competence to practice medicine. Each physician who applies for a license is deemed to have given his consent to such examinations, and the reports and testimony of the examining physicians are not privileged. NRS 630.318. The failure to be found competent as a result of a physical or medical examination ordered by the Board is grounds for restriction or revocation of a license to practice medicine.
The inability to practice medicine with reasonable skill and safety because of illness, a mental or physical condition, or the use of alcohol, drugs, narcotics, or any other substance that could impair a physician subjects his license to sanctions, including revocation.
A physician cannot practice or offer to practice beyond the scope permitted him by law, nor may he perform services that he knows or has reason to know that he is not competent to perform. He cannot perform any procedure or prescribe any therapy which is experimental, as judged by the current standards of the practice of medicine, without first obtaining the informed consent of the patient (or in appropriate cases, the patients family).
Malpractice by a physician subjects him to discipline. Malpractice may be evidenced by claims settled by a physician. Not only does malpractice constitute conduct that will be disciplined, but the failure to report any claim for malpractice or negligence filed against the physician, and the failure to report the claim within ninety days of the time the claim is filed, and again within ninety days of the disposition of the claim, is itself conduct that will be disciplined.
Prescriptions and Controlled Substances
A physician may not engage in any conduct that violates a regulation promulgated by the State Board of Pharmacy. He may not administer, dispense, or prescribe any controlled substance or dangerous drug (prescription drug) to or for himself or to others except as authorized by law. In particular, signing a blank prescription form will expose a physician to Board discipline.
As stated above under Professional Incompetence, a physician impaired by the use of alcohol, drugs, or any other substance may have his license restricted or revoked, in addition to other sanctions by the Board. Habitual intoxication from alcohol or dependency on controlled substances is given separate consideration, and is also conduct that will be disciplined.
Misconduct Related to Patients
Unprofessional conduct relating to the treatment of patients falls into two basic categories: patient care, and sexual misconduct with a patient.
Physicians may not attempt, either directly or indirectly, by way of intimidation, coercion, or deception, to obtain or retain a patient. Similarly, physicians may not discourage a patient from seeking a second opinion.
Physicians may not abandon their patients without ensuring their continued care. Terminating the medical care of a patient without adequate notice or without making other arrangements for the continued care of the patient will result in discipline from the Board. Nor may a physician delegate responsibility for a patients care to another person if the physician knows, or has reason to know, that the person is not qualified to undertake responsibility for the patients care.
A practitioner who engages in any sexual activity with a patient who he is currently treating is subject to discipline by the Board. Even influencing a patient for the purpose of engaging in sexual activity with the patient or with others is forbidden.
Financial misconduct by physicians is interwoven with several other areas of professional misconduct, particularly as it relates to the potential to affect patient care.
Kickbacks and fee-splitting are globally prohibited. A physician may not receive from any person or entity any fee, commission, rebate, or any other form of compensation, either directly or indirectly, if that compensation is intended to influence, or even if it merely has a tendency to influence, the physicians objective evaluation or treatment of a patient. Similarly, a physician may not refer a patient to a health facility, a medical laboratory, or commercial establishment in which he has a financial interest, if the referral is in violation of NRS 439B.425. Referrals to entities in which the physician has a financial interest may be made under certain conditions, such as if the service or goods provided are not otherwise available within a thirty mile radius of the physicians office, or if the referral is made to a member of a group practice to which the physician belongs. NRS 439B.425.
In general, a physician must disclose to a patient any financial or any other conflict of interest that the physician faces relating to the care of that patient. Fees can only be divided by physicians if the patient is informed of the division, and the division is made in proportion to the services personally performed and the responsibility assumed by each physician. Physicians may not, of course, charge for office visits that did not occur, or for services which were not rendered and documented in the records of the patient.
The Board has established several broad record-keeping requirements, the violation of any of which will subject the physician to sanctions. Physicians must maintain adequate records relating to the diagnosis, treatment, and care of a patient. Physicians cannot alter the medical records of a patient, or fail to make a patients medical records available for inspection and copying. A physician may not willfully disclose any communication that is privileged pursuant to a statute or court order without facing the possibility of sanctions.
Misrepresentation and Related Offenses
A physician may not engage in any conduct that is intended to deceive. Specifically, he is prohibited from making or filing a report which he knows to be false or failing to file a record or report as required by law or regulation. The willful obstruction or inducement of another to obstruct a required filing constitutes separate grounds for discipline.
Advertising the practice of medicine in a false, deceptive, or misleading manner is likewise prohibited. (See also the sections on record keeping, and misconduct related to patient care and financial matters for additional specific examples of prohibited misrepresentation.)
Miscellaneous Prohibited Conduct
It is a physicians duty to report to the Board of Medical Examiners any person that he knows, or has reason to know, is in violation of any of the laws or regulations of the Board. Further, the willful failure to comply with a regulation, subpoena, or order of the Board or a committee designated by the Board to investigate a complaint against a physician, or a court order relating to investigation or discipline of a physician, is itself an offense as is the willful failure to perform a statutory or other legal obligation imposed upon a physician. It is interesting to note that Nevada courts have found that a physician who criticizes other physicians, even in harshly critical language, is not guilty of unprofessional conduct under the reasoning that the physicians conduct did not in any way harm the public health. Boswell v. Board of Medical Examiners, 72 Nev. 20, 293 P.2d 424 (1956) (decided under an older version of the current statutes). Nonetheless, knowingly made false criticism, made as fact rather than opinion, may subject the speaking or writing physician to a civil defamation action for monetary damages.
A physician may not assist, aid, employ, or advise any unlicensed person to engage in the practice of medicine in violation of the regulations of the Board of Medical Examiners.
Any physician who is an active licensee and who changes the location of his office must notify the Board of the change before he begins practicing at the new location. Licensees who close their offices in Nevada must notify the Board within fourteen days of the closure, and must keep the Board apprised of the location of the medical records of his patients for a period of five years. NRS 630.254.
In addition, the Board will not renew a physicians license (or issue a new license) if he is not in compliance with an order or plan enforcing child support payments or fails to submit the statement required to ensure compliance when renewing his license. NRS 630.197.
If a physician is required to perform public service as a condition of receiving loans or scholarships, the failure to initiate the public service within one year of the date it was required to begin will constitute cause for discipline.
BOARD OF MEDICAL EXAMINERS ENFORCEMENT AUTHORITY
When commencing an investigation, the Board may suspend a physicians license and may seek injunctive relief pending disciplinary proceedings (see the section entitled Complaint above). Once the Board of Medical Examiners has determined, using a preponderance of evidence standard, that a violation has occurred, it has broad powers to sanction a physician. The board may do any of (or any combination of) the following:
1) Place the physician on probation for a specified period of time, with restrictive conditions imposed during the probationary period;
2) Administer a public reprimand;
3) Limit the scope of the physicians practice, or exclude one or more specified branches of medicine from the physicians practice;
4) Suspend the physicians license to practice medicine, either for a specified period or until the board orders reinstatement;
5) Revoke his license to practice medicine;
6) Require him to participate in a program to correct alcohol or drug dependence or any other impairment;
7) Require that his practice be supervised and monitored;
8) Impose a fine not to exceed $5000;
9) Require him to perform public service without compensation;
10) Require him to take a physical or mental examination testing his competence;
11) Require him to fulfill certain training or educational requirements; and
12) Require him to pay all costs incurred by the board relating to his disciplinary proceedings.
In addition, if the Board finds that the physician has made a patient referral to an entity in which the physician has a financial interest, without meeting the exceptions outlined in NRS 439B.425, the physicians license shall be suspended for a specified period of time or until the board orders reinstatement (in addition to the penalties required by the statute).
Chapters 630 of the Nevada Revised Statutes and the Nevada Administrative Code contain the requirements for issuance, retention, and revocation of a license to practice medicine in Nevada. In general, only U.S. citizens or those lawfully admitted to work in the United States who have received the degree of Doctor of Medicine from a properly accredited medical school qualify for a license. The applicant must have passed all parts of the examination given by the National Board of Medical Examiners, or another examination specified in the statute.
The applicant for a license must have completed three years of graduate education as a resident or approved fellowship training. The applicant must also pass a written and/or oral examination as to his qualifications to practice medicine and must provide the Board with a description of the clinical program that he completed which demonstrates that the applicants clinical training met the requirements approved by the Board. NRS 630.160.
The applicant must submit to the Board on a form provided by the Board a written application accompanied by an affidavit stating that:
- a) The applicant is the person named in the proof of graduation and that it was obtained without fraud or misrepresentation or mistake of which the applicant is aware; and
- b) The information is complete and correct.
The application submitted must include the social security number of the applicant. The applicant bears the burden of proving and documenting his qualifications for licensure. NRS 630.165.
Finally, the Board may require further evidence of the mental, physical, or other qualifications of the applicants qualifications. The Board may employ specialists, consultants, or examining services in these exams. NRS 630.180.
 The United States Constitution recognizes the right of States to promulgate laws in furtherance of protecting their citizens health, safety, and welfare (and historically, morals).
 Preponderance of the evidence means anything more than fifty percent. Hence, if there is evidence just slightly more evidence, in the determination of the Boards finders of fact, that a violation occurred than did not occur, the standard of proof is met. This is the same standard of proof used in negligence lawsuits such as medical malpractice. Many States require a more rigorous clear and convincing evidence standard to apply when revoking/suspending an issued license.