A physician, subject to certain limitations, may advise a patient whether or not continued chiropractic care is necessary without engaging in the unauthorized practice of chiropractic. 68 Atty. Gen. 316.
MEDICAL EXAMINING BOARD
Subch. II of ch. 448 Cross-reference
See also Med
, Wis. adm. code.
In this subchapter:
“Anesthesiologist" means a physician who has completed a residency in anesthesiology approved by the American Board of Anesthesiology or the American Osteopathic Board of Anesthesiology, holds an unrestricted license, and is actively engaged in clinical practice.
“Anesthesiologist assistant" means an individual licensed by the board to assist an anesthesiologist in the delivery of certain medical care with anesthesiologist supervision.
“Board" means medical examining board.
“Compact license" means an expedited license granted by the board pursuant to the interstate medical licensure compact under s. 448.980
“Extracorporeal circulation" means the diversion of a patient's blood through a heart-lung machine or a similar device that assumes the functions of the patient's heart or lungs or both.
“Perfusion" means that branch or system of treating the sick that is limited to the operation and management of extracorporeal circulation to support, temporarily replace, measure, treat, or supplement the cardiopulmonary and circulatory system of a patient, including, when necessary to and part of the management and operation of extracorporeal circulation, the use of blood testing and advanced life support techniques and technologies, autotransfusion, and the administration of blood, blood products, and anesthetic and pharmacological agents.
“Perfusionist" means an individual who practices perfusion.
“Respiratory care" means that branch or system of treating the sick which is limited to assisting in the prevention, diagnosis and therapeutic treatment of respiratory disorders by various means, including the administration of medical gases, oxygen therapy, ventilation therapy, artificial airway care, bronchial hygiene therapy, aerosolization of pharmacological agents, respiratory rehabilitation therapy and other treatment, testing, evaluation and rehabilitation procedures performed under the direction of a physician, but not including the use of general anesthetic agents.
“Respiratory care practitioner" means an individual who practices respiratory care.
“Unprofessional conduct" means all of the following:
Those acts or attempted acts of commission or omission defined as unprofessional conduct by the board under the authority delegated to the board by s. 15.08 (5) (b)
“Unprofessional conduct" does not include any of the following:
The board may grant licenses, including various classes of temporary licenses, to practice medicine and surgery, to practice as an administrative physician, to practice perfusion, to practice as an anesthesiologist assistant, and to practice as a physician assistant.
The board may certify respiratory care practitioners.
(3) Investigation; hearing; action. 448.02(3)(a)(a)
The board shall investigate allegations of unprofessional conduct and negligence in treatment by persons holding a license or certificate granted by the board. An allegation that a physician has violated s. 253.10 (3)
or 450.13 (2)
or has failed to mail or present a medical certification required under s. 69.18 (2)
within 21 days after the pronouncement of death of the person who is the subject of the required certificate or that a physician has failed at least 6 times within a 6-month period to mail or present a medical certificate required under s. 69.18 (2)
within 6 days after the pronouncement of death of the person who is the subject of the required certificate is an allegation of unprofessional conduct. Information contained in reports filed with the board under s. 49.45 (2) (a) 12r.
, 50.36 (3) (b)
, or under 42 CFR 1001.2005
, shall be investigated by the board. Information contained in a report filed with the board under s. 655.045 (1)
, as created by 1985 Wisconsin Act 29
, which is not a finding of negligence or in a report filed with the board under s. 50.36 (3) (c)
may, within the discretion of the board, be used as the basis of an investigation of a person named in the report. The board may require a person holding a license or certificate to undergo and may consider the results of one or more physical, mental or professional competency examinations if the board believes that the results of any such examinations may be useful to the board in conducting its investigation.
After an investigation, if the board finds that there is probable cause to believe that the person is guilty of unprofessional conduct or negligence in treatment, the board shall hold a hearing on such conduct. The board may use any information obtained by the board or the department under s. 655.17 (7) (b)
, as created by 1985 Wisconsin Act 29
, in an investigation or a disciplinary proceeding, including a public disciplinary proceeding, conducted under this subsection and the board may require a person holding a license or certificate to undergo and may consider the results of one or more physical, mental or professional competency examinations if the board believes that the results of any such examinations may be useful to the board in conducting its hearing. A unanimous finding by a panel established under s. 655.02
, 1983 stats., or a finding by a court that a physician has acted negligently in treating a patient is conclusive evidence that the physician is guilty of negligence in treatment. A finding that is not a unanimous finding by a panel established under s. 655.02
, 1983 stats., that a physician has acted negligently in treating a patient is presumptive evidence that the physician is guilty of negligence in treatment. A certified copy of the findings of fact, conclusions of law and order of the panel or the order of a court is presumptive evidence that the finding of negligence in treatment was made. The board shall render a decision within 90 days after the date on which the hearing is held or, if subsequent proceedings are conducted under s. 227.46 (2)
, within 90 days after the date on which those proceedings are completed.
Subject to par. (cm)
, after a disciplinary hearing, the board may, when it determines that a panel established under s. 655.02
, 1983 stats., has unanimously found or a court has found that a person has been negligent in treating a patient or when it finds a person guilty of unprofessional conduct or negligence in treatment, do one or more of the following: warn or reprimand that person, or limit, suspend or revoke any license or certificate granted by the board to that person. The board may condition the removal of limitations on a license or certificate or the restoration of a suspended or revoked license or certificate upon obtaining minimum results specified by the board on one or more physical, mental or professional competency examinations if the board believes that obtaining the minimum results is related to correcting one or more of the bases upon which the limitation, suspension or revocation was imposed.
The board may initiate disciplinary action against a physician no later than one year after initiating an investigation of an allegation involving the death of a patient and no later than 3 years after initiating an investigation of any other allegation, unless the board shows to the satisfaction of the secretary that a specified extension of time is necessary for the board to determine whether a physician is guilty of unprofessional conduct or negligence in treatment. For purposes of this paragraph, the date that a matter is reopened under sub. (8) (c)
is considered the date that an investigation of the matter is initiated.
A person whose license or certificate is limited under this subchapter shall be permitted to continue practice upon condition that the person will refrain from engaging in unprofessional conduct; that the person will appear before the board or its officers or agents at such times and places as may be designated by the board from time to time; that the person will fully disclose to the board or its officers or agents the nature of the person's practice and conduct; that the person will fully comply with the limits placed on his or her practice and conduct by the board; that the person will obtain additional training, education or supervision required by the board; and that the person will cooperate with the board.
Unless a suspended license or certificate is revoked during the period of suspension, upon the expiration of the period of suspension the license or certificate shall again become operative and effective. However, the board may require the holder of any such suspended license or certificate to pass the examinations required for the original grant of the license or certificate before allowing such suspended license or certificate again to become operative and effective.
The board shall comply with rules of procedure for the investigation, hearing and action promulgated under ss. 440.03 (1)
Nothing in this subsection prohibits the board, in its discretion, from investigating and conducting disciplinary proceedings on allegations of unprofessional conduct by persons holding a license or certificate granted by the board when the allegations of unprofessional conduct may also constitute allegations of negligence in treatment.
See also ch. Med 10
, Wis. adm. code.
The board may summarily suspend any license or certificate granted by the board when the board has in its possession evidence establishing probable cause to believe that the holder of the license or certificate has violated the provisions of this subchapter and that it is necessary to suspend the license or certificate immediately to protect the public health, safety, or welfare. The holder of the license or certificate shall be granted an opportunity to be heard during the determination of probable cause. The board chair and 2 board members designated by the chair or, if the board chair is not available, the board vice-chair and 2 board members designated by the vice-chair, shall exercise the authority granted by this paragraph to suspend summarily a license or certificate in the manner provided under par. (b)
An order of summary suspension shall be served upon the holder of the license or certificate in the manner provided in s. 801.11
for service of summons. The order of summary suspension shall be effective upon service or upon actual notice of the summary suspension given to the holder of the license or certificate or to the attorney of the license or certificate holder, whichever is sooner. A notice of hearing commencing a disciplinary proceeding shall be issued no more than 10 days following the issuance of the order of summary suspension. The order of summary suspension remains in effect until the effective date of a final decision and order in the disciplinary proceeding against the holder or until the order of summary suspension is discontinued by the board following a hearing to show cause. The holder of the license or certificate shall have the right to request a hearing to show cause why the order of summary suspension should not be continued and the order of summary suspension shall notify the holder of the license or certificate of that right. If a hearing to show cause is requested by the holder of the license or certificate, the hearing shall be scheduled on a date within 20 days of receipt by the board of the request for the hearing to show cause.
(5) Voluntary surrender.
The holder of any license or certificate granted by the board may voluntarily surrender the license or certificate 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 or certificate. The board may negotiate stipulations in consideration for accepting the surrender of licenses.
(6) Restoration of license or certificate.
The board may restore any license or certificate that 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 or certificate 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 or certificate on notice that any subsequent misconduct may result in disciplinary action. The board shall review the determination if the holder of the license or certificate 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 or certificate 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 or certificate is guilty of misconduct.
Notwithstanding par. (b)
, if the board receives a subsequent allegation of misconduct about a holder of a license or certificate 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
; 2001 a. 89
; 2009 a. 382
; 2011 a. 160
; 2013 a. 240
See also Med
, Wis. adm. code.
Reading sub. (3) (b) in conjunction with s. 227.46 (2), a “hearing" for purposes of computing the time period for rendering a 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 a written decision that separately identifies the 5 elements and discusses the evidence that 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), 95-2641
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 188
, 572 N.W.2d 508
(Ct. App. 1997), 97-0452
The 5-pronged test of Gimenez
does not apply to cases in which fraud and misrepresentation are alleged. Gimenez
expressly limits the application of the test to cases where the medical professional is charged with choosing a course of treatment that is dangerous or detrimental to his or her patient or the public. It does not apply to allegations of unprofessional conduct by perpetrating a fraud on a patient in an attempt to obtain compensation. Krahenbuhl v. Wisconsin Dentistry Examining Board, 2006 WI App 73
, 292 Wis. 2d 154
, 713 N.W.2d 152
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 U.S. 35
, 95 S. Ct. 1456
, 43 L. Ed. 2d 712
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.
No person may practice perfusion, attempt to do so, or make a representation as authorized to do so, without a license to practice perfusion granted by the board.
No person may practice as an anesthesiologist assistant unless he or she is licensed by the board as an anesthesiologist 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 midwifery under subch. XIII of ch. 440
, 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 or perfusionist of any of the armed services or federal health services of the United States.
The activities of a medical student, respiratory care student, perfusion student, anesthesiologist assistant 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 perfusionists or certified respiratory care practitioners of other states or countries with licensed physicians or perfusionists or certified respiratory care practitioners of this state.
Any person other than a physician assistant or an anesthesiologist 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, anesthesiologist assistants, or perfusionists, who assist physicians.
A person performing autotransfusion or blood conservation techniques under the direction and supervision of a licensed physician.
A person practicing perfusion for not more than 30 days in a year, if the person is certified or eligible to be certified as a clinical perfusionist by the American Board of Cardiovascular Perfusion.
A person employed as a perfusionist by a federal agency, as defined in s. 59.57 (2) (c) 1.
, if the person provides perfusion services solely under the direction or control of the federal agency by which he or she is employed.