(4) Suspension pending hearing.
The board may summarily suspend any license, certificate or limited permit granted by the board for a period not to exceed 30 days pending hearing, when the board has in its possession evidence establishing probable cause to believe that the holder of the license, certificate or limited permit has violated the provisions of this subchapter and that it is necessary to suspend the license, certificate or limited permit immediately to protect the public health, safety or welfare. The holder of the license, certificate or limited permit shall be granted an opportunity to be heard during the determination of probable cause. The board may designate any of its officers to exercise the authority granted by this subsection to suspend summarily a license, certificate or limited permit, but such suspension shall be for a period of time not to exceed 72 hours. If a license, certificate or limited permit has been summarily suspended by the board or any of its officers, the board may, while the hearing is in progress, extend the initial 30-day period of suspension for an additional 30 days. If the holder of the license, certificate or limited permit has caused a delay in the hearing process, the board may subsequently suspend the license, certificate or limited permit from the time the hearing is commenced until a final decision is issued or may delegate such authority to the hearing examiner.
(5) Voluntary surrender.
The holder of any license, certificate or limited permit granted by the board may voluntarily surrender the license, certificate or limited permit to the secretary of the board, but the secretary may refuse to accept the surrender if the board has received allegations of unprofessional conduct against the holder of the license, certificate or limited permit. The board may negotiate stipulations in consideration for accepting the surrender of licenses.
(6) Restoration of license, certificate or limited permit.
The board may restore any license, certificate or limited permit which has been voluntarily surrendered or revoked under any of the provisions of this subchapter, on such terms and conditions as it may deem appropriate.
Within 30 days of receipt of a report under s. 50.36 (3) (c)
, the board shall notify the licensee, in writing, of the substance of the report. The licensee and the licensee's authorized representative may examine the report and may place into the record a statement, of reasonable length, of the licensee's view of the correctness or relevance of any information in the report. The licensee may institute an action in circuit court to amend or expunge any part of the licensee's record related to the report.
If the board determines that a report submitted under s. 50.36 (3) (c)
is without merit or that the licensee has sufficiently improved his or her conduct, the board shall remove the report from the licensee's record. If no report about a licensee is filed under s. 50.36 (3) (c)
for 2 consecutive years, the licensee may petition the board to remove any prior reports, which did not result in disciplinary action, from his or her record.
Upon the request of a hospital, the board shall provide the hospital with all information relating to a licensee's loss, reduction or suspension of staff privileges from other hospitals and all information relating to the licensee's being found guilty of unprofessional conduct. In this paragraph, "hospital" has the meaning specified under s. 50.33 (2)
After an investigation by the board under sub. (3) (a)
or by the department under s. 440.03 (3m)
, the board may issue a private and confidential administrative warning to a holder of a license, certificate or limited permit if the board determines that there is evidence of misconduct by him or her. The board may issue an administrative warning under this paragraph only if the board determines that no further action is warranted because the matter involves a first occurrence of minor misconduct and the issuance of an administrative warning adequately protects the public by putting the holder of the license, certificate or limited permit on notice that any subsequent misconduct may result in disciplinary action. The board shall review the determination if the holder of the license, certificate or limited permit makes a personal appearance before the board. Following the review, the board may affirm, rescind or modify the administrative warning. A holder of a license, certificate or limited permit may seek judicial review under ch. 227
of an affirmation or modification of an administrative warning by the board.
An administrative warning issued under par. (a)
does not constitute an adjudication of guilt or the imposition of discipline and may not be used as evidence that the holder of a license, certificate or limited permit is guilty of misconduct.
Notwithstanding par. (b)
, if the board receives a subsequent allegation of misconduct about a holder of a license, certificate or limited permit to whom the board issued an administrative warning under par. (a)
, the board may reopen the matter that resulted in the issuance of the administrative warning or use the administrative warning in any subsequent disciplinary hearing under sub. (3) (b)
as evidence that he or she had actual knowledge that the misconduct that was the basis for the administrative warning was contrary to law.
The record that an administrative warning was issued under par. (a)
shall be a public record. The contents of an administrative warning shall be private and confidential.
(9) Judicial review.
No injunction, temporary injunction, stay, restraining order or other order may be issued by a court in any proceeding for review that suspends or stays an order of the board to discipline a physician under sub. (3) (c)
or to suspend a physician's license under sub. (4)
, except upon application to the court and a determination by the court that all of the following conditions are met:
The board has received notice of the application and the court has provided advance notice to the board of the date of the court hearing on the application.
There is a substantial likelihood that the applicant will prevail in the proceeding for review.
The applicant will suffer irreparable harm if the order is not suspended or stayed.
There is no substantial likelihood of harm to patients of the applicant if the board's order is suspended or stayed.
History: 1975 c. 383
; 1977 c. 418
; 1981 c. 135
; 1983 a. 188
; 1983 a. 189
s. 329 (5)
; 1983 a. 253
; 1985 a. 29
; 1985 a. 146
; 1985 a. 315
; 1987 a. 27
; 1989 a. 229
; 1991 a. 186
; 1993 a. 105
; 1995 a. 309
; 1997 a. 67
; 1999 a. 32
Reading sub. (3) (b) in conjunction with s. 227.46 (2), a "hearing" for purposes of computing the time period for decision includes the taking of evidence and all subsequent proceedings. Sweet v. Medical Examining Board, 147 Wis. 2d 539
, 433 N.W.2d 614
(Ct. App. 1988).
There is a 5-prong test to guide the Board in determining whether a physician improperly treated a patient. The Board must provide written decision that separately identifies the 5 elements and discusses the evidence which relates to each element and provides details of why the evidence supports the Board's findings. Gimenez v. State Medical Examining Board, 203 Wis. 2d 349
, 552 N.W.2d 863
(Ct. App. 1996).
As used in this section, "negligence in treatment" means medical negligence, as defined by Wisconsin courts, which holds a doctor to the standard of reasonable care. The "reasonable physician" is not synonymous with the "average physician". Dept. of Regulation and Licensing v. Medical Examining Board, 215 Wis. 2d 187
, 572 N.W.2d 508
(Ct. App. 1997).
The 90-day direction in sub. (3) (b) for rendering a decision is mandatory. 72 Atty. Gen. 147
The medical examining board does not deny due process by both investigating and adjudicating a charge of professional misconduct. Withrow v. Larkin, 421 US 35.
License or certificate required to practice; use of titles; civil immunity; practice of Christian Science. 448.03(1)(a)(a)
No person may practice medicine and surgery, or attempt to do so or make a representation as authorized to do so, without a license to practice medicine and surgery granted by the board.
No person may practice as a physician assistant unless he or she is licensed by the board as a physician assistant.
(1m) Certificate required to practice.
No person may practice respiratory care, or attempt to do so or make a representation as authorized to do so, without a certificate as a respiratory care practitioner granted by the board.
Nothing in this subchapter shall be construed either to prohibit, or to require, a license or certificate under this subchapter for any of the following:
Any person lawfully practicing within the scope of a license, permit, registration, certificate or certification granted to practice professional or practical nursing or nurse-midwifery under ch. 441
, to practice chiropractic under ch. 446
, to practice dentistry or dental hygiene under ch. 447
, to practice optometry under ch. 449
, to practice acupuncture under ch. 451
or under any other statutory provision, or as otherwise provided by statute.
The performance of official duties by a physician of any of the armed services or federal health services of the United States.
The activities of a medical student, respiratory care student or physician assistant student required for such student's education and training, or the activities of a medical school graduate required for training as required in s. 448.05 (2)
Actual consultation or demonstration by licensed physicians or certified respiratory care practitioners of other states or countries with licensed physicians or certified respiratory care practitioners of this state.
Any person other than a physician assistant who is providing patient services as directed, supervised and inspected by a physician who has the power to direct, decide and oversee the implementation of the patient services rendered.
The gratuitous domestic administration of family remedies.
Any person furnishing medical assistance or first aid at the scene of an emergency.
Any person assisting a respiratory care practitioner in practice under the direct, immediate, on-premises supervision of the respiratory care practitioner.
Any persons other than physician assistants who assist physicians.
No person may use or assume the title "doctor of medicine" or append to the person's name the letters "M.D." unless one of the following applies:
The person possesses the degree of doctor of medicine.
The person is licensed as a physician under this subchapter because the person satisfied the degree requirement of s. 448.05 (2)
by possessing a medical degree that was conferred by a medical school recognized and listed as such by the World Health Organization of the United Nations.
No person not possessing the degree of doctor of osteopathy may use or assume the title "doctor of osteopathy" or append to the person's name the letters "D.O.".
No person may designate himself or herself as a "physician assistant" or use or assume the title "physician assistant" or append to the person's name the words or letters "physician assistant" or "P.A." or any other titles, letters or designation which represents or may tend to represent the person as a physician assistant unless he or she is licensed as a physician assistant by the board.
(5) Civil liability; certain medical procedures and reports. 448.03(5)(a)(a)
No person licensed or certified under this subchapter shall be liable for any civil damages resulting from such person's refusal to perform sterilization procedures or to remove or aid in the removal of a human embryo or fetus from a person if such refusal is based on religious or moral precepts.
No physician shall be liable for any civil damages for either of the following:
Reporting in good faith to the department of transportation under s. 146.82 (3)
a patient's name and other information relevant to a physical or mental condition of the patient which in the physician's judgment impairs the patient's ability to exercise reasonable and ordinary control over a motor vehicle.
In good faith, not reporting to the department of transportation under s. 146.82 (3)
a patient's name and other information relevant to a physical or mental condition of the patient which in the physician's judgment does not impair the patient's ability to exercise reasonable and ordinary control over a motor vehicle.
A physician who in good faith provides the board with information concerning an allegation that another physician has engaged in unprofessional conduct or acted negligently in treating a patient is immune from liability for any damage that results from any act or omission in providing the information and may not be disciplined by the board for providing the information. In any administrative or court proceeding, the good faith of a physician who provides such information shall be presumed.
(6) Practice of Christian Science.
No law of this state regulating the practice of medicine and surgery may be construed to interfere with the practice of Christian Science. A person who elects Christian Science treatment in lieu of medical or surgical treatment for the cure of disease may not be compelled to submit to medical or surgical treatment.
Restrictions on business corporations providing medical, legal and dental services is discussed. 75 Atty. Gen. 200
Classes of license; certificate of licensure. 448.04(1)(a)(a)
License to practice medicine and surgery.
A person holding a license to practice medicine and surgery may practice as defined in s. 448.01 (9)
Temporary license to practice medicine and surgery. 448.04(1)(b)1.1.
An applicant for license to practice medicine and surgery who has passed an examination satisfactory to the board, or who is a graduate of a medical school in this state, and who more than 30 days prior to the date set by the board for the holding of its next examination has complied with all the requirements of s. 448.05 (2)
may, at the discretion of the board, be granted a temporary license to practice medicine and surgery. Such temporary license shall expire 60 days after the next examination for license is given or on the date following the examination on which the board grants or denies such applicant a license, whichever occurs first; but the temporary license shall automatically expire on the first day the board begins its examination of applicants after granting such license, unless its holder submits to examination on such date. The board may require an applicant for temporary licensure under this subdivision to appear before a member of the board for an interview and oral examination. A temporary license shall be granted under this subsection only once to the same person.
An applicant who is a graduate of a foreign medical school and who, because of noteworthy professional attainment, is invited to serve on the academic staff of a medical school in this state as a visiting professor, may be granted a temporary license to practice medicine and surgery if the applicant does not have an arrest or conviction record, subject to ss. 111.321
. Such license shall remain in force only while the holder is serving full-time on the academic staff of a medical school, and the holder's entire practice is limited to the duties of the academic position. Such license shall expire 2 years after its date of granting and may be renewed at the discretion of the board. The board may require an applicant for licensure under this subdivision to appear before a member of the board for an interview.
The board may grant a temporary license to practice medicine and surgery for a period not to exceed 90 days to a nonresident physician who is serving on a full-time or temporary basis in a camp or other recreational facility, or to a physician temporarily maintaining the practice of another physician. In either case, the applicant for such temporary license must satisfy the board that the applicant is needed in the area in which the applicant wishes to serve and that the applicant holds a license granted upon written examination in another licensing jurisdiction of the United States or Canada. The board may renew such temporary license for additional periods of 90 days each but may not renew such license more than 3 consecutive times. The board may require an applicant for such temporary license to appear before a member of the board for interview.
Temporary educational permit to practice medicine and surgery.
Application for a temporary educational permit to practice medicine and surgery may be made to the board by a person who meets the requirements of s. 448.05 (2)
. Such permit may be issued for a period not to exceed one year and may be renewed annually for not more than 4 years. Such permit shall entitle the holder to take postgraduate educational training in a facility approved by the board. The holder of such permit may, under the direction of a person licensed to practice medicine and surgery in this state, perform services requisite to the training authorized by this section. Acting under such direction, the holder of such permit shall also have the right to prescribe drugs other than narcotics and to sign any certificates, reports or other papers for the use of public authorities which are required of or permitted to persons licensed to practice medicine and surgery. The holder of such permit shall confine training and practice to the facility in which the holder is taking the training. The purpose of this paragraph is solely to provide opportunities in this state for the postgraduate education of certain persons having training in medicine and surgery satisfactory to the board, without compliance with the licensure requirements of this subchapter. Nothing in this paragraph changes in any respect the requirements for licensure to practice medicine and surgery in this state. The violation of this paragraph by the holder of such permit shall constitute cause for the revocation of the permit. All holders of such permits shall be subject to such provisions of this subchapter as the board, by rule, determines are appropriate and to any penalties applicable to those with a temporary or regular license to practice medicine and surgery. The board may require an applicant for licensure under this paragraph to appear before a member of the board for an interview and oral examination.
Physician assistant license.
The board shall license as a physician assistant an individual who meets the requirements for licensure under s. 448.05 (5)
. The board may, by rule, provide for various classes of temporary licenses to practice as physician assistants.
Certificate as respiratory care practitioner.
The board may certify as a respiratory care practitioner any individual who meets the qualifications for certification under s. 448.05 (5r)
and passes the examination required under s. 448.05 (6)
. The board may, by rule, provide for a temporary certificate to practice respiratory care to be granted to any individual who meets the requirements of s. 448.05 (5r)
but has not passed the examination required by s. 448.05 (6)
. Temporary certificates may be issued for a period not to exceed one year and may not be renewed.
(2) Certificate of licensure.
Each license granted by the board shall be attested by a certificate of licensure.
Any person holding a license or certificate granted under this subchapter, which is lost, stolen or destroyed, may apply to the board for a duplicate thereof. Such application shall be made in such manner as the board may designate and shall be accompanied by an affidavit setting out the circumstances of loss. The board shall then issue a duplicate bearing on its face the word "duplicate".
Discussion of circumstances under which physical therapist may practice without a referral under (1) (e). 75 Atty. Gen. 217
Qualification for licensure or certification; examinations; application. 448.05(1)
To be qualified for the grant of any license or certificate by the board, an applicant must:
Meet the specific requirements as set out in this section for that class of license or certificate for which applying.
Achieve a passing grade in the examinations required in this section.
Be found qualified by three-fourths of the members of the board, except that an applicant for a temporary license under s. 448.04 (1) (b) 1.
must be found qualified by 2 members of the board.
(2) License to practice medicine and surgery.
An applicant for any class of license to practice medicine and surgery must supply evidence satisfactory to the board that the applicant is a graduate of and possesses a diploma from a medical or osteopathic college approved by the board and has completed postgraduate training of 12 months in a facility approved by the board. If an applicant is a graduate of a foreign medical school which has not been approved by the board, and if such applicant has had postgraduate training in this country in a 12-month program approved by the board or has had other professional experience which the board deems has given the applicant the education and training substantially equivalent, and if such applicant has passed the examinations given by the educational council for foreign medical graduates or its successors, the board may make such additional inquiry including a personal interview as satisfies it that the applicant has had such education and training. If a majority of the board is so satisfied, the applicant may then be admitted to examination for a license to practice medicine and surgery. If an applicant is a graduate of a foreign medical school not approved by the board, and such foreign medical school requires either social service or internship or both of its graduates, and if such applicant has not completed such requirements but has completed a 12-month supervised clinical training program under the direction of a medical school approved by the board and has complied with all other requirements of this subsection for graduates of foreign medical schools not approved by the board, the applicant may then be admitted to examination for a license to practice medicine and surgery.
The board shall promulgate rules establishing licensing standards and practice standards for physician assistants and shall license persons under those rules. The board may not grant a license as a physician assistant to an applicant unless the applicant submits evidence satisfactory to the board of all of the following:
That the applicant has passed the certifying examination administered by the National Commission on Certification of Physician Assistants.
That the applicant has satisfactorily completed a physician assistant training program that is accredited by the American Medical Association's Committee on Allied Health Education and Accreditation or its successor.
(5r) Certificate as respiratory care practitioner.
An applicant for a certificate or a temporary certificate to practice respiratory care shall submit evidence satisfactory to the board that the applicant is a graduate of a school with a course of instruction in respiratory care approved by the commission on accreditation of allied health education programs of the American Medical Association.
The board shall examine each applicant it finds eligible under this section in such subject matters as the board deems applicable to the class of license or certificate which the applicant seeks to have granted. Examinations may be both written and oral. In lieu of its own examinations, in whole or in part, the board may make such use as it deems appropriate of examinations prepared, administered, and scored by national examining agencies, or by other licensing jurisdictions of the United States or Canada. The board shall specify passing grades for any and all examinations required.
The board may require an applicant who fails to appear for or to complete the required examinations to reapply for licensure or certification before being admitted to subsequent examinations.
An applicant who fails to achieve a passing grade in the required examinations may request reexamination, and may be reexamined not more than twice at not less than 4-month intervals, and shall pay a reexamination fee for each such reexamination. An applicant who fails to achieve a passing grade on the 2nd such reexamination may not be admitted to further examination until the applicant reapplies for licensure or certification and also presents to the board evidence of further professional training or education as the board may deem appropriate.
Application for any class of license or certificate shall be made as a verified statement in a form provided by the department and at such time and place as the board may designate, and shall be accompanied by satisfactory evidence setting out the qualifications imposed by this section. Application for any class of license to practice medicine and surgery also shall be accompanied by a verified statement that the applicant is familiar with the state health laws and the rules of the department of health and family services as related to communicable diseases.
License, certificate or limited permit granted, denied. 448.06(1)(1)
Grant of license, certificate or limited permit.
If three-fourths of the members of the board find that an applicant who has passed the required examinations is qualified, the board shall so notify the applicant and shall grant the license, certificate or limited permit.