Chapter 37 Unprofessional Conduct
CRIMINAL ACTS… 37:2
IMMORAL ACTS 37:2
BUSINESS RELATED ACTS… 37:2
VIOLATION OF MEDICAL PRACTICES………….. 37:4
Quality of Care.. 37:4
Negligent Practices………….. 37:5
Administrative Errors/Omissions…….. 37:6
The opportunity to practice medicine is a privilege granted by the state to a physician. In Nevada, the law defines this privilege as a revocable privilege, in which a person has no vested interested. NRS 630.045. The primary purpose of medical licensing is to protect the public health and safety and the general welfare of the people, rather than to protect the physicians interest.
Whenever a revocable right or privilege is bestowed on an individual, there must be a standard or set of standards that defines conduct which may result in a loss of that privilege. Chapter 630 of the Nevada Revised Statutes generally codifies the conduct of physicians that will generate grounds for discipline. In general terms, acts that may be characterized as unprofessional fall into four categories: illegal or criminal acts, immoral acts, business related acts, and acts that violate acceptable medical practices. This chapter examines the four general categories of unprofessional conduct, and the statutory basis for imposing punishment under that category. The statutes grant that the medical profession in Nevada great latitude in policing its own trusting that the highest quality of care will made available to the people of the state.
In addition to the penalties imposed by the legal system for a criminal conviction, a physician may also be disciplined and lose his medical license based solely on the fact that he was convicted for a crime or offense. In general, a conviction under any of the following circumstances constitutes grounds for discipline or the denial of a license:
- a) Conviction of a felony, of any offense involving moral turpitude, or of any offense relating to the practice of medicine or the ability to practice medicine. A plea of nolo contendere constitutes a conviction for the purposes of this subsection.
- b) Conviction of violating any of the provisions of the statutes dealing with industrial insurance and related reporting procedures.
Immoral acts, as they concern professional discipline for physicians, generally fall into the limited category of sexual activity with individuals that may be patients. A physician may be disciplined or denied a license for engaging . . . in any sexual activity with a patient who is currently being treated by the practitioner. NRS 630.301. The key element of this offense is the status of the patient. If the person is a current patient of the physician, the physician may be disciplined. Physicians must take care not to become romantically involved with patients, whether or not the relationship affects the patients treatment.
Under NRS 630.304, influencing a patient in order to engage in sexual activity with the patient or with others is sufficient grounds to discipline or deny licensure to a physician. This undue influence erodes the patient-doctor relationship and trust, and is harmful to the reputation of the profession as a whole.
BUSINESS RELATED ACTS
The Nevada Revised Statutes contain numerous acts, loosely identifiable as business related acts, that may lead to disciplinary action. Though not all contained in a single statute, nor specifically classified as business related, these acts all relate to the operation of the business, not the quality of the care rendered, or the character of the physician.
It is a disciplinary violation to obtain, maintain, or renew a license to practice medicine by bribery, fraud or misrepresentation, or to attempt the same. NRS 630.304. The use of false, misleading, inaccurate or incomplete statements, in an attempt to renew or to obtain a license may result in disciplinary action or denial of a license. NRS 630.304(1). By the same token, aiding, assisting, employing or advising, either directly or indirectly, any unlicensed person to engage in the practice of medicine constitutes grounds for disciplinary action. NRS 630.305.
Physicians must be especially careful to verify and validate the credentials of an individual before supporting the individuals efforts to practice medicine.
One of the business areas of practice in which a physician must be especially vigilant concerns kickbacks, fee-splitting, and payments from patients. It is a disciplinary violation for a physician to engage in any of the following:
- Receive compensation (in the form of fee, commission, rebate or others) which is intended to influence the physicians objective evaluation or treatment;
- Charge for visits which did not occur, or services not rendered or documented in the patients records; or
Divide fees amongst licensees, unless the patient is informed of the division, and the division is in proportion to the services performed, and the responsibilities assumed, by each licensee.
NRS 630.305; 630.395.
There are a myriad of other business related offenses which may result in disciplinary action or denial of a license. A brief list of actions that could lead to discipline by the Board includes:
- False, deceptive or misleading advertising;
- Practicing or attempting to practice medicine under another name;
- Failure to inform patients of a potential conflict of interest;
- Referring a patient to a health facility, medical laboratory or commercial establishment in which the doctor has a financial interest (in violation of NRS 439B.425); and
- Attempting to retain or obtain a patient, or discourage a second opinion, through the use of intimidation, coercion or deception. This influence may be direct or indirect.
A business related offense will occur if the requirement to initiate the performance of public service within a year (when the public service was required as a term and condition for receiving government loans or scholarships) is not timely begun . NRS 630.305.
VIOLATION OF MEDICAL PRACTICES
There are numerous events or activities, related more to the practice of medicine than to the physicians character or business dealings, that may result in disciplinary actions. For the purposes of this summary, three separate categories of conduct will be reviewed: acts associated with the quality of care provided; acts associated with negligent practices; and, acts that are purely administrative in nature. There is, of course, cross over between the categories. Nevada statutes also contain a catch all provision under which a physician may be disciplined or denied a license for engaging in any conduct which:
- is intended to deceive;
- the [medical] board has determined to be a violation of any standard of practice established by the board;
- is a violation of any regulation established by the state board of pharmacy.
These are fairly broad categories of acts for which a physician may be disciplined, especially considering the subjective nature of the language of the statute.
Quality of Care
Many of the violations codified in Chapter 630 of the Nevada Code relate to the level of skill, the qualifications, and the competency of the physician. In general, a physician may be disciplined for his inability to render care with reasonable skill and safety due to:
- llness (mental or physical), a physical condition, or (improper) use of drugs, narcotics, alcohol or other substances (NRS 630.306(1));
- Offering services and treatment that are either beyond the scope of the law, or that the physician knows, or has reason to know, are beyond his competency level (NRS 603.306(5));
- Failure, on a continual basis, to use the skill, diligence or methodologies ordinarily used/demonstrated by physicians in good standing in his/her particular field or specialty (NRS 630.306(7));
- Habitual intoxication from alcohol, or a dependency on controlled substances (NRS 630.306(10));
- A failure to be found competent as a result of a determination based on NRS 630.318 (NRS 630.306(12));
- Malpractice, as evidenced by claims settled against the physician (NRS 630.301(4));
- Delegating the care of a patient to a person the physician knows, or has reason to know, is not qualified to assume the responsibility delegated (NRS 630.305(1)(f)).
There are very specific acts for which a treating physician may be disciplined or denied a license. Under NRS 630.306(3), a physician may be disciplined for [administering, dispensing, or prescribing any controlled substance, or any dangerous drug …to or for himself or to others except as authorized by law. Additionally, the injection of liquid silicone into the body, or simply advising or assisting another to inject silicone into the body (except when used to repair retinal detachment) is a violation of Chapter 630 (NRS 630.306(4)).
Notice and consent issues may lead to troubles. Under NRS 630.304(7), the termination of medical care, without adequate prior notice, or before making other arrangements for the patients care, can lead to discipline or denial of license. Likewise, performing or prescribing procedures or therapy that are considered by the profession to be experimental, without first obtaining the consent of the patient or his/her family, is a violation of NRS 630.306(6).
Any one of these violations of the Nevada Administrative Code, all of which also constitute violations of acceptable standards of care, may result in disciplinary action. Many of the prohibited actions are objective and easily assessed. Some, however, are very subjective in nature, and the physician must take care to steer clear of anything approaching the prohibited conduct. Regardless of the degree of subjectivity, a physician can be disciplined or denied a license if the Board determines a violation has occurred.
Closely related to providing health care that is of poor quality, is the negligent execution of ones duties. While Nevada law does not make this distinction, the offenses addressed in this section correctly fall under the title of negligent practices because they deal with the way the doctor performs his duties, not the quality of the care provided.
Under NRS 630.301(3), the suspension, modification, or limitation of the license …by any other jurisdiction or the surrender of the license or the discontinuing the practice of medicine while under investigation by any number of medical, insurance, government or military organization may result in discipline.
The use and maintenance of records, while actually a cross between negligent practices and administrative errors, can result in discipline. With regards to medical records, a physician may be disciplined for:
- Failure to maintain records of a patient, relating to diagnosis, treatment and care (NRS 630.3062(1));
- Altering medical records (NRS 630.3062(2));
- Failure to make medical records available for inspection per NRS 620.061 (NRS 630.3062(4));
Careful attention to appropriate documentation is critical.
NRS 630.3062(3) makes it a violation to make or file a false report, or to fail to file a report or record required by law (See also NRS 630.306(8)). Obstructing or inducing others to obstruct such a filing is also a punishable offense. Signing a blank prescription form is an offense for which the physician may be disciplined or denied a license. NRS 630.304(4).
Finally, NRS 630.3065 deals with willful misconduct, ranging from the release of privileged communications, to willful failures to comply with subpoenas, board or committee orders, court orders of other provisions of Chapter 630. Willful failure to perform statutorily imposed duties is also a violation of the law.
Certain tasks are more administrative in nature than they are substantive. Similar to the requirements for proper maintenance of records are the rules with regard to reporting. Failure to report a claim for malpractice or negligence filed against the licensee, or the subsequent disposition of such a claim, is a violation of Chapter 630 (NRS 630.3062(5)) (See also NRS 630.3067). Failure to report any person who a physician knows, or whom the physician would have reason to know, is in violation of Chapter 630 or other medical board regulations, is punishable under NRS 630.3062(6). NRS 630.3067 is dedicated to the filing of complaints and the reporting of information concerning the competence of a physician. Persons, medical schools and medical facilities must report persons committing acts which warrant disciplinary action. NRS 630.3067(1) & (2). Even the courts, or the clerk of the courts, must report findings, judgments and determinations of the court relating to a physicians mental condition, conviction of a felony, conviction under a law dealing with controlled substances and dangerous drugs, fraudulent conduct, or liability for malpractice/negligence. NRS 630.3067(3).
In many instances, the conduct resulting in disciplinary action is clearly defined. In others, it is left to the interpretation of a reviewing board. In all cases, the penalties may be harsh, to include the denial or revocation of a license. Physicians must take care to ensure that their conduct is ethical, treatment is competent and professional, and that compliance with the self imposed requirements of the profession cannot be impugned.