OCCUPATIONS AND PROFESSIONS
PHYSICIANS AND SURGEONS
329:17 Disciplinary Action; Remedial Proceedings.
I. The board may undertake disciplinary proceedings (a) upon its own initiative or (b) upon written complaint of any person which charges that a person licensed by the board has committed misconduct as set forth in paragraph VI of this section and which specifies the grounds therefor.
I-a. The board may undertake non-disciplinary remedial proceedings (a) upon its own initiative or (b) upon written complaint of any person which charges that a person licensed by the board is afflicted with a condition as set forth in paragraph VI-a of this section and which specifies the grounds therefor.
II. Every clerk of the superior court shall report to the board the filing and final disposition of any action for medical injury as defined in paragraph III within 30 days after such filing and within 30 days after such final disposition.
III. Every insurer, including self-insurers, providing professional liability insurance to a licensee of the board shall send a complete report to the board as to all reservable claims coincident with medical injury that take place in this state or in any other state within 30 days after establishing the reserve. For the purpose of this paragraph, medical injury means any adverse, untoward or undesired consequences arising out of or sustained in the course of professional services rendered by a medical care provider, whether resulting from negligence, error or omission in the performance of such services; from rendition of such services without informed consent or in breach of warranty or in violation of contract; from failure to diagnose; from premature abandonment of a patient or of a course of treatment; from failure properly to maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.
III-a. The board shall instruct the medical review subcommittee to conduct an investigation of any person licensed by the board who has had 3 reservable claims, written complaints, or actions for medical injury, as defined by paragraph I, II, or III, or any combination thereof, which pertain to 3 different acts or events within any consecutive 5-year period.
III-b. (a) Any referral by the insurance commissioner under RSA 420-J:5-e, VIII or any complaint alleging that a medical director has committed misconduct as set forth in paragraph VI of this section shall be received and reviewed by the board in accordance with the provisions of this section for potential disciplinary action. For the purposes of this paragraph, "medical director" means a physician licensed under this chapter who is employed by a health carrier or medical utilization review entity and is responsible for the utilization review techniques and methods of the health carrier or medical utilization review entity and their administration and implementation.
(b) Any complaint received by the board regarding an insurance coverage decision by a medical director shall be forwarded by the board to the insurance commissioner for review.
IV. Every facility administrator, or designee, for any licensed hospital, health clinic, ambulatory surgical center, or other health care facility within the state shall report to the board any disciplinary or adverse action, within 30 days after such action is taken, including situations in which allegations of misconduct are settled by voluntary resignation without adverse action, against a person licensed by the board. Disciplinary or adverse action shall include the requirement that a licensee undergo counseling or be subject to any policy with regard to disruptive behavior.
V. Every professional society within the state comprised primarily of persons licensed by the board shall report to the board any disciplinary action against a member relating to professional ethics, medical incompetence, moral turpitude, or drug or alcohol abuse within 30 days after such disciplinary action is taken.
V-a. A medical review subcommittee of 13 members shall be nominated by the board of medicine and appointed by the governor and council. The subcommittee shall consist of 13 persons, 9 of whom shall be physicians, one of whom shall be a physician assistant, and 3 of whom shall be public members. One of the physician members shall practice in the area of pain medicine and anesthesiology. No public member of the subcommittee shall be or ever have been a member of the medical profession or the spouse of a member of the medical profession. No public member shall have or ever have had a material financial interest in either the provision of medical services or an activity directly related to medicine, including the representation of the board or profession for a fee. The terms of the public members shall be staggered so that no 2 public members' terms expire in the same year. The subcommittee members shall be appointed for 3-year terms, and shall serve no more than 2 terms. Upon referral by the board, the subcommittee shall review disciplinary actions reported to the board under paragraphs II-V of this section, except that matters concerning a medical director involved in a current internal or external grievance pursuant to RSA 420-J shall not be reviewed until the grievance process has been completed. Following review of each case, the subcommittee shall make recommendations to the board. The state of New Hampshire, by the board and the office of professional licensure and certification, and with the approval of governor and council, shall contract with a qualified physician to serve as a medical review subcommittee investigator.
V-b. When a threat to public health, safety, or welfare may exist, the board of medicine shall notify the facility, a practice's managing physician or administrator, or the hospital chief executive officer of any pending disciplinary proceedings, non-disciplinary remedial proceedings, recommended corrective actions, or concerns for informational purposes or referral to the facility, practice, or hospital's credentials and quality assurance committees or their equivalent. The entity receiving notification shall report back to the board of medicine with a progress or final report within 45 days.
VI. The board, after hearing, may take disciplinary action against any person licensed by it upon finding that the person:
(a) Has knowingly provided false information during any application for professional licensure or hospital privileges, whether by making any affirmative statement which was false at the time it was made or by failing to disclose any fact material to the application.
(b) Is a habitual user of drugs or intoxicants.
(c) Has displayed medical practice which is incompatible with the basic knowledge and competence expected of persons licensed to practice medicine or any particular aspect or specialty thereof.
(d) Has engaged in dishonest or unprofessional conduct or has been grossly or repeatedly negligent in practicing medicine or in performing activities ancillary to the practice of medicine or any particular aspect or specialty thereof, or has intentionally injured a patient while practicing medicine or performing such ancillary activities.
(e) Has employed or allowed an unlicensed person to practice in the licensee's office.
(f) Has failed to provide adequate safeguards in regard to aseptic techniques or radiation techniques.
(g) Has included in advertising any statement of a character tending to deceive or mislead the public or any statement claiming professional superiority.
(h) Has advertised the use of any drug or medicine of an unknown formula or any system of anesthetic that is unnamed, misnamed, misrepresented, or not in reality used.
(i) Has willfully or repeatedly violated any provision of this chapter or any substantive rule of the board.
(j) Has been convicted of a felony under the laws of the United States or any state.
(k) Has failed to maintain adequate medical record documentation on diagnostic and therapeutic treatment provided or has unreasonably delayed medical record transfer, or violated RSA 332-I.
(l) Has knowingly obtained, attempted to obtain or assisted a person in obtaining or attempting to obtain a prescription for a controlled substance without having formed a valid physician-patient relationship pursuant to RSA 329:1-c.
VI-a. The board may take non-disciplinary remedial action against any person licensed by it upon finding that the person is afflicted with physical or mental disability, disease, disorder, or condition deemed dangerous to the public health. Upon making an affirmative finding, the board, may take non-disciplinary remedial action:
(a) By suspension, limitation, or restriction of a license for a period of time as determined reasonable by the board.
(b) By revocation of license.
(c) By requiring the person to submit to the care, treatment, or observation of a physician, counseling service, health care facility, professional assistance program, or any combination thereof which is acceptable to the board.
(d) By requiring the person to practice under the direction of a physician in a public institution, public or private health care program, or private practice for a period of time specified by the board.
VII. The board, upon making an affirmative finding under paragraph VI, may take disciplinary action in any one or more of the following ways:
(a) By reprimand.
(b) By suspension, limitation, or restriction of a license or probation for a period of time as determined reasonable by the board.
(c) By revocation of license.
(d) By requiring the person to submit to the care, treatment, or observation of a physician, counseling service, health care facility, professional assistance program, or any combination thereof which is acceptable to the board.
(e) By requiring the person to participate in a program of continuing medical education in the area or areas in which the person has been found deficient.
(f) By requiring the person to practice under the direction of a physician in a public institution, public or private health care program, or private practice for a period of time specified by the board.
(g) By assessing administrative fines in amounts established by the board which shall not exceed $3,000 per offense, or, in the case of continuing offenses, $300 for each day that the violation continues, whichever is greater.
VII-a. The board may issue a nondisciplinary confidential letter of concern to a licensee advising that while there is insufficient evidence to support disciplinary action, the board believes the physician or physician assistant should modify or eliminate certain practices, and that continuation of the activities which led to the information being submitted to the board may result in action against the licensee's license. This letter shall not be released to the public or any other licensing authority, except that the letter may be used as evidence in subsequent disciplinary proceedings by the board, and shall be sent to a physician assistant's supervising physician.
VIII. Disciplinary or non-disciplinary remedial action taken by the board under this section may be appealed to the supreme court under RSA 541.
IX. No civil action shall be maintained against the board or any member of the board or its agents or employees with regard to any action or activity taken in the performance of any duty or authority established by this chapter. No civil action shall be maintained against any organization or its members or against any other person for or by reason of any good faith statement, report, communication, or testimony to the board or determination by the board in relation to proceedings under this chapter.
IX-a. Any persons who have had their licenses to practice medicine revoked or suspended shall be barred from practicing any other human health care activities, including psychotherapy, whether or not such other activity is licensed or certified by another licensing agency.
X, XI. [Repealed.]
XII. Allegations of professional misconduct or other violations of this chapter enforceable by the board shall be brought within 5 years from the time the board could reasonably have discovered the act, omission or failure complained of, except that conduct which resulted in a criminal conviction or in a disciplinary action by a relevant licensing authority in another jurisdiction may be considered by the board without time limitation in making licensing or disciplinary decisions if the conduct would otherwise be a ground for discipline under this chapter. The board may also consider licensee conduct without time limitation when the ultimate issue before the board involves a pattern of conduct or the cumulative effect of conduct which becomes apparent as a result of conduct which has occurred within the 5-year limitation period prescribed by this paragraph.
XIII. When an investigation of a complaint against a licensee is determined to be unfounded, the board shall dismiss the complaint and explain in writing to the complainant its reason for dismissing the complaint. The board may destroy all information collected during the course of the investigation in accordance with the retention policy established by the office of professional licensure and certification. The board shall retain a record only noting that an investigation was conducted and that the board determined the complaint to be unfounded. For the purpose of this paragraph, a complaint shall be deemed to be unfounded if it does not fall within the jurisdiction of the board, does not relate to the actions of the licensee, or is determined by the board to be frivolous.
Source. 1915, 167:13. PL 204:14. RL 250:14. 1951, 27:7. RSA 329:17. 1955, 71:1. 1975, 186:11. 1977, 417:18. 1981, 396:3; 483:6, 9. 1983, 377:9, 10. 1986, 219:15-18. 1991, 382:16, 17. 1992, 179:5-8, 14, III. 1993, 179:6-8, 15; 264:1, 2. 1995, 286:17-19. 1998, 170:2. 2000, 18:1, 2. 2001, 228:9. 2005, 154:2-7; 248:1. 2006, 249:1, 2. 2008, 21:4; 217:8. 2009, 206:14. 2015, 276:63. 2016, 2:10, eff. Jan. 21, 2016. 2018, 102:1, 2, eff. Jan. 1, 2019. 2019, 254:2, eff. Sept. 17, 2019. 2021, 197:75, 76, eff. July 1, 2021.