Revocation and Suspension of Physician Licenses
The state has the power to revoke a license to practice medicine granted to a physician for good cause. The state power to revoke the license of a medical practitioner stems from the general police power to prescribe all reasonable regulations that necessarily affect the public health, safety, and morals.
A state can revoke a physician’s license if it was improperly issued. Revocation is also justified in instances where the license holder has been guilty of improper or unlawful conduct. Courts have held that the purpose of an action seeking revocation of a doctor’s certificate is not to punish the doctor, but rather to protect the public[i]. However, some courts have held that the provisions relating to revocation of a physician’s license are highly penal in nature and hence must be construed in the physician’s favor.
The state licensing board has wide discretion in the matter of revocation of licenses and may revoke a license without any terms or conditions, leaving no possibility for reinstatement. For instance, in one case, the Board of Medicine found that an acupuncturist, who was not a physician, fraudulently and deceptively used his license by adding initials “M.D.” after his name on an acupuncture registration certificate from another jurisdiction[ii]. The court held that a regulatory requirement that an acupuncturist who is not a licensed physician must register his collaboration with a physician is integral to the licensure scheme for practicing acupuncture, and thus, failure to register is not merely a technical violation, but a valid ground for license revocation.
The general defenses against a revocation of license include denial of due process, violation of equal protection clause, compelling self-incrimination, etc. However, courts have held in a number of cases that the “state had a legitimate interest in protecting its citizens from incompetent physicians, and requiring doctors suspected of being incompetent to attend an investigatory hearing or submit to reexamination was rationally related to that interest, so neither a statute nor a board’s treatment of a physician violated the equal protection clause[iii].” However, such revocation shall be done only after affording sufficient notice and hearing and courts have held that a substantially ex parte proceeding of revocation violates due process.
A statute empowering the state licensing board to revoke licenses shall not be vague and ambiguous. Courts have held that certain acts or conduct that are described in broad general terms are not prima facie objectionable if the general words are accompanied by more specific ones that may be properly construed to limit and make certain the general ones. The legislative purpose of the statute is protecting the public against the unauthorized practice of medicine and courts have held that the Board must be accorded authority to define the grounds for medical discipline on a case-by-case basis[iv].
The Board’s power to revoke licenses includes the power to suspend an erring medical practitioner from practice. Upon a finding of unprofessional conduct warranting revocation, the Board has discretion suspend the practitioner from practice for the period permitted by the statute. The board can also impose conditions during the suspension period and may require a showing of professional competence before reinstating a license[v].
Professional incompetence, bad character, immorality, professional misconduct, dishonorable conduct, conviction of criminal offense, and gross negligence form valid grounds for revocation of license. The valid grounds for revocation of license may often be enlisted in the statute. Acting in excess of one’s professional authority, like for instance, engaging in the general practice of medicine or surgery, or professing to do so, in excess of a license limited to the practice of special branch of medicine warrants the revocation of the limited license.
The board has power to initiate disciplinary action against a physician even in the absence of any complaints from the patients. The board may take action even in the case of a single act of violation and in the absence of proof of injury. For instance, in a Mississippi case, the court held that “if a nursing home resident under a nurse’s aide’s supervision was injured through the aide’s neglect or lack of supervision, intentional or not, that aide was guilty of neglect and subject to removal by the health department from the active register and transfer to the Nurse’s Aide Abuse Registry[vi].”
Courts have held that the revocation of a license is proper if the physician has been found guilty of drug abuse or was suffering from mental disability. Similarly, if a licensed physician’s voluntary settlement agreement recites that the physician suffers from alcohol abuse and is in need of treatment, it is sufficient to establish probable cause for revocation[vii].
The procedure for revocation may be established by statute and state legislatures generally delegate to an administrative tribunal the power of revocation or suspension, together with the power to hear and determine charges. “A trial and conviction in a court of competent jurisdiction is not a condition precedent to a proceeding by the state board of health against a physician to revoke his license for any of the causes provided by statute[viii].”
Generally, statutes of limitation are not applicable to disciplinary proceedings and courts have held that due process does not require the application of a statute of limitations to such proceedings. However, due process requires the application of the doctrine of laches, albeit narrowly to license revocation proceedings[ix]. Courts have held that this has to be done without jeopardizing the public interest.
The physician must be given reasonable notice of the proceeding and reasonable opportunity to appear and make a defense. For instance, a court has held that a statute requiring hearings to be upon 20 days’ written notice personally served upon the physician against whom charges are made, containing an exact statement of the charges and the date and place set for hearing, is reasonable.
However, the full protections of procedural due process will not be available to a physician in a probable cause hearing[x].
Moreover, the evidence must unequivocally indicate that the conduct of the licensee did not conform to the conduct of a member of the same profession exercising reasonable care and skill, supplemented by testimony to the effect that other professionals would have utilized a different procedure is insufficient to establish negligence or incompetence[xi].
The burden of proof is on the applicant seeking restoration of a medical license. The applicant must adduce sufficient evidence so ineluctable in its implications that it would compel restoration of license by the Board. There is conflict of opinion regarding the burden of proof. One view is that issues of fact in a revocation or suspension proceeding do not have to be shown beyond a reasonable doubt, but only by a preponderance of the evidence. On the other hand, some courts have held that the board is required to use clear and convincing evidence due to the plenary nature of the proceedings[xii].
Courts will review the conclusions of law de novo. While reviewing the sanctions imposed by the licensing board, the court defers to the board’s expertise and will not generally substitute its discretion for that of the board. The physician can seek mandamus as an available and appropriate remedy for wrongful revocation if no other method of review has been provided by the statute. However, mandamus is not the proper remedy if the statute provides another adequate remedy, such as appeal.
[i] Younge v. State Bd. of Registration for Healing Arts, 451 S.W.2d 346 (Mo. 1969).
[ii] Faulkenstein v. District of Columbia Bd. of Medicine, 727 A.2d 302 (D.C. 1999).
[iii] Artman v. State Bd. of Registration for Healing Arts, 918 S.W.2d 247 (Mo. 1996).
[iv] State Bd. of Medical Examiners v. McCroskey, 880 P.2d 1188 (Colo. 1994).
[v] Board of Dental Examiners v. Hufford, 461 N.W.2d 194 (Iowa 1990).
[vi] Ricks v. Mississippi State Dept. of Health, 719 So. 2d 173 (Miss. 1998).
[vii] Paulson v. Board of Medical Examiners of State of Iowa, 592 N.W.2d 677 (Iowa 1999).
[viii] Bandeen v. Howard, 299 S.W.2d 249 (Ky. 1956)
[ix] Sinha v. Ambach, 91 A.D.2d 703, 457 N.Y.S.2d 603 (3d Dep’t 1982).
[x] Artman v. State Bd. of Registration for Healing Arts, 918 S.W.2d 247 (Mo. 1996).
[xi] Sizemore v. Texas State Bd. of Dental Examiners, 747 S.W.2d 389 (Tex. App. Dallas 1987).
[xii] Painter v. Abels, 998 P.2d 931 (Wyo. 2000).