Section 34-24-361

Investigations; reporting offenses; proceedings and actions; privileged information.

(a)(1) The State Board of Medical Examiners on its own motion may investigate any evidence which appears to show that a physician or osteopath holding a certificate of qualification to practice medicine or osteopathy in the State of Alabama is or may be guilty of any of the acts, offenses, or conditions set out in Section 34-24-360. As part of its investigation, the board may require a criminal history background check of the physician or osteopath. In such event, the physician or osteopath shall submit a complete set of fingerprints to the State Board of Medical Examiners. The board shall submit the fingerprints provided by the physician or osteopath to the Alabama Bureau of Investigation (ABI). The fingerprints shall be forwarded by the ABI to the Federal Bureau of Investigation (FBI) for a national criminal history record check. Costs associated with conducting a criminal history background check shall be borne by the physician or osteopath. The State Board of Medical Examiners shall keep information received pursuant to this section confidential, except that such information received and relied upon in an investigation by the board may be disclosed to the physician or osteopath.

(2) The board may, within its discretion and for cause, order and direct that a physician or osteopath successfully complete a course or courses of continuing medical education on subjects related to the findings of the investigation of the board. The course or courses of continuing medical education ordered by the board may not exceed 50 credit hours of instruction within the calendar year in which the order is entered. Failure or refusal to comply with the order or directive of the board entered pursuant to this subdivision shall constitute grounds, after notice and a hearing, for the suspension of the license to practice medicine of the physician or osteopath in question by the Medical Licensure Commission which shall continue in effect until such time the physician or osteopath has complied with the order or directive or the board has rescinded or withdrawn the order or directive.

(b) Any physician or osteopath holding a certificate of qualification to practice medicine or osteopathy in the State of Alabama shall and is hereby required to, and any other person may, report to the board or the commission any information such physician, osteopath, or other person may have which appears to show that any physician or osteopath holding a certificate of qualification to practice medicine or osteopathy in the State of Alabama may be guilty of any of the acts, offenses, or conditions set out in Section 34-24-360, and any physician, osteopath, or other person who in good faith makes such a report to the board or to the commission shall not be liable to any person for any statement or opinion made in such report.

(c) If in the opinion of the board it appears that such information provided to it under the provisions of this section may be true, the board may request a formal interview with the physician or osteopath.

(d) If the physician or osteopath invited to a formal interview before the board refuses to appear for such interview, the commission shall have grounds to suspend or revoke the certificate of qualification of such physician or osteopath.

(e) Any proceeding for suspension or revocation of a license to practice medicine or osteopathy in the State of Alabama shall be conducted in accord with the following procedures:

(1) A written administrative complaint signed by any member of the State Board of Medical Examiners, any duly licensed physician or osteopath, the executive officers of the commission, or any other person shall be filed with the Medical Licensure Commission.

(2) The executive officer of the commission shall set a date for the hearing of the administrative complaint, shall notify the physician or osteopath against whom the administrative complaint was filed of the time and place of the hearing, and shall forward to such physician or osteopath a copy of the administrative complaint filed against him or her.

(3) Such notice shall be served upon the physician or osteopath against whom the complaint was filed at least 20 days prior to the hearing date.

(4) The notice may be served by any sheriff of the State of Alabama or by any person designated by the executive officer of the commission, and if served by a person designated by the executive officer, the return of service shall be sworn to by that person before some officer authorized to administer oaths.

(5) If the physician or osteopath against whom a complaint has been filed is out of the state, or evades service, or cannot be served in person, then the service shall be made by mailing a copy of the complaint and of the notice to that person at his or her last known post office address in this state, and the return shall show that service has been made in this manner.

(6) The investigation shall be held with as little publicity as practicable, consistent with a fair and impartial hearing.

(7) At the hearing, the physician or osteopath against whom the complaint has been filed shall have the right to be represented by counsel and shall have the right to call any witnesses germane to the issues under consideration.

(8) The administrative complaint may be amended without leave of the commission at any time more than 45 days before the first setting of the case for hearing. Thereafter, the commission may permit the administrative complaint to be amended but no amendments shall be permitted that are not germane to the acts, offenses, or conditions originally charged or that materially alters the nature of any act, offense, or condition charged; provided, however, that amendments to conform to the evidence may be allowed in conformance with Rule 15(b), Alabama Rules of Civil Procedure.

(9) The commission shall have the right to determine all questions as to the sufficiency of the complaint, as to procedure, and as to the admissibility and weight of evidence.

(10) If a person whose qualifications are under consideration absents himself or herself, or does not appear after having been given the required notice, the hearing may proceed in his or her absence.

(f) The commission shall, temporarily, suspend the license of a physician or osteopath without a hearing simultaneously with the institution of proceedings for a hearing provided under this section on the request of the State Board of Medical Examiners if the board finds that evidence in its possession indicates that the physician's or osteopath's continuation in practice may constitute an immediate danger to his or her patients or to the public. The commission may meet by telephone conference call to act upon any such request.

(g) A physician or osteopath may surrender his or her certificate of qualification or request in writing to the State Board of Medical Examiners that a restriction be placed upon his or her certificate of qualification to practice medicine or osteopathy. The board may accept a surrender or grant such a request for restriction and shall have the authority, if it deems appropriate, to attach such restrictions to the certificate of qualification of the physician or osteopath to practice medicine or osteopathy within the State of Alabama. Removal of a voluntary restriction on a certificate of qualification shall be done only with the approval of the State Board of Medical Examiners. If the board accepts the surrender of a certificate of qualification, it shall notify the commission and the commission shall withdraw the physician's or osteopath's license to practice medicine or osteopathy in the State of Alabama. If the board attaches restrictions to a physician's or osteopath's certificate of qualification, it shall notify the commission of the restrictions and the commission shall also place the restrictions on the physician's or osteopath's license to practice medicine or osteopathy in the State of Alabama. If the board denies a request by an applicant for reinstatement of his or her certificate of qualification or for removal of a voluntary restriction, the applicant shall have the right of appeal to the commission which has the authority to either affirm the board's action or order the board to modify its action as the commission deems appropriate. Applications requesting reinstatement of a certificate of qualification filed with the Board of Medical Examiners within 24 months of the effective date of the applicant's voluntary surrender of the certificate of qualification may be dismissed by the board as prematurely filed. An application as described above which is filed with the board more than 24 months following the effective date of the voluntary surrender may be granted or may be set for a hearing before the board. The hearing shall be conducted as a contested case under the Alabama Administrative Procedure Act. The Board of Medical Examiners shall be without jurisdiction to reinstate the certificate of qualification of a physician or osteopath whose certificate of qualification was voluntarily surrendered while under investigation or during the pendency of the administrative hearing if the application for reinstatement of the certificate of qualification is received by the board more than five years after the effective date of the surrender of the certificate of qualification. In the event the Medical Licensure Commission is without jurisdiction to reinstate a license to practice medicine or osteopathy or the Board of Medical Examiners is without jurisdiction to reinstate the certificate of qualification, any existing, corresponding certificate of qualification of any licensee over whom the commission or board has lost the aforementioned jurisdiction, shall become null and void.

(h) Subsequent to the holding of a hearing and the taking of evidence by the commission as provided for in this section, the commission shall request and consider but not be bound by a recommendation from the State Board of Medical Examiners. After receipt of the board's recommendation, if the commission finds that a physician or osteopath is guilty of any of the acts, offenses, or conditions enumerated in Section 34-24-360, the commission may take any of the following actions or any combinations of the following actions:

(1) Enter a judgment and impose a penalty.

(2) Suspend imposition of judgment and penalty.

(3) Order that the respondent physician or osteopath pay to the board such costs, fees, and expenses as the commission shall deem appropriate.

(4) Impose judgment and penalty, but suspend enforcement thereof by placing the physician or osteopath on probation, which probation shall be revocable if the commission finds the conditions of the probation order are not followed by the physician or osteopath.

(5) As a condition of probation the commission may require the physician or osteopath to submit to care, counseling, or treatment by physicians designated by the commission. The expense of such care, counseling, or treatment shall be borne by the physician or osteopath on probation.

(6) If a license to practice medicine or osteopathy is suspended, revoked, or a licensee placed on probation, the commission may order, as a condition for lifting the suspension or reinstating the license, or as a condition of probation, that the licensee, at his or her own expense, be evaluated or tested for mental or physical impairment, drug or alcohol impairment, medical competence, sexual misconduct or addiction, or behavioral problems. The results of such evaluation or testing may be considered by the commission in making any further or additional orders or rulings with regard to such physician's or osteopath's license.

(7) The commission may at any time modify the conditions of the probation and may include among them any reasonable condition for the purpose of the protection of the public or for the purpose of the rehabilitation of the probationer or both.

(8) If a license to practice medicine or osteopathy in the State of Alabama is suspended, the holder of the license shall not practice during the term of suspension.

(9) Applications for reinstatement of a license to practice medicine or osteopathy which have been revoked or suspended by the commission and applications for modification or termination of probation or removal or modification of restrictions concerning a license to practice medicine or osteopathy filed with the commission within 24 months from the effective date of the commission's order may, within the discretion of the commission, be dismissed by the commission as prematurely filed, subject to the right of the applicant to refile the application at a later date. An application as described above which is filed with the commission more than 24 months following the effective date of the commission's order may be granted, or may be set for a hearing before the commission, and such hearing shall be conducted as a contested case under the Alabama Administrative Procedure Act. The Medical Licensure Commission shall be without jurisdiction to reinstate the license to practice medicine or osteopathy of a physician or osteopath whose license was revoked by the commission or voluntarily surrendered while under investigation or during the pendency of an administrative hearing if the application for reinstatement is received more than five years after the effective date of the revocation or surrender of the license.

(i) Complaints submitted for hearing before the Medical Licensure Commission under this section or before the State Board of Medical Examiners or testimony with respect thereto shall be absolutely privileged and no lawsuit predicated thereon may be instituted. Members of the State Board of Medical Examiners, the Medical Licensure Commission, any agent, employee, consultant, or attorney of the board or the commission, the members of any committee of physicians impaneled by the board or the commission, any person making any report or rendering any opinion or supplying any evidence or information or offering any testimony to the board or to the commission in connection with an investigation or hearing conducted by the board or the commission as authorized in this article shall be immune from suit for any conduct in the course of their official duties with respect to such investigations or hearings.

(Acts 1981, No. 81-218, p. 273, §20; Acts 1986, No. 86-442, p. 807, §1; Act 2002-140, p. 359, §3; Act 2005-297, 1st Sp. Sess., p. 556, §1; Act 2007-402, p. 807, §1; Act 2008-397, p. 771, §1.)