PocketLaw | Georgia Code | Authority to Refuse License, Certificate,

Authority to Refuse License, Certificate, or Permit or Issue Discipline; Suspension; Restoration; Investigations; Hearings on Fitness; Immunity; Publication of Final Disciplinary Actions

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The board shall have authority to refuse to grant a license, certificate, or permit to an applicant or to discipline a person regulated under this chapter or any antecedent law upon a finding by the board that the licensee, certificate holder, or permit holder or applicant has:
1. Failed to demonstrate the qualifications or standards for a license, certificate, or permit contained in this chapter or in the rules and regulations of the board. It shall be incumbent upon the applicant to demonstrate to the satisfaction of the board that he or she meets all requirements for the issuance of a license; and, if the board is not satisfied as to the applicant's qualifications, it shall not issue a license, certificate, or permit;
2. Knowingly made misleading, deceptive, untrue, or fraudulent representations in the practice of a profession licensed, certified, or permitted under this chapter or in any document connected therewith; practiced fraud or deceit or intentionally made any false statement in obtaining a license, certificate, or permit under this chapter to practice pursuant to this chapter; or made a false statement or deceptive registration with the board;
3. Been convicted of a felony in the courts of this state or any other state, territory, country, or of the United States. As used in this paragraph, the term "conviction of a felony" shall include a conviction of an offense which if committed in this state would be deemed a felony under either state or federal law, without regard to its designation elsewhere. As used in this paragraph, the term "conviction" shall include a finding or verdict of guilt, a plea of guilty resulting in first offender status, or a plea of nolo contendere in a criminal proceeding, regardless of whether the adjudication of guilt or sentence is withheld or not entered thereon;
4. Committed a crime involving moral turpitude, without regard to conviction; the conviction of a crime involving moral turpitude shall be evidence of the commission of such crime. As used in this paragraph, the term "conviction" shall have the meaning prescribed in paragraph (3) of this subsection. For the purpose of this chapter, a conviction or plea of guilty or of nolo contendere to a charge or indictment by either federal or state government for income tax evasion shall not be considered a crime involving moral turpitude;
5. Had his or her license, certificate, or permit to practice pursuant to this chapter revoked, suspended, or annulled by any lawful licensing authority; had other disciplinary action taken against him or her by any lawful licensing authority; or been denied a license by any lawful licensing authority;
6. Advertised for or solicited patients; obtained a fee or other thing of value on the representation that a manifestly incurable disease can be permanently cured; or made untruthful or improbable statements, or flamboyant or extravagant claims concerning his or her professional excellence or treatment protocols;
7. Engaged in any unprofessional, unethical, deceptive, or deleterious conduct or practice harmful to the public, which need not have resulted in actual injury to any person. As used in this paragraph, the term "unprofessional conduct" shall include any departure from, or failure to conform to, the minimum standards of acceptable and prevailing medical practice and shall also include, but not be limited to, the prescribing or use of drugs, treatment, or diagnostic procedures which are detrimental to the patient as determined by the minimum standards of acceptable and prevailing medical practice or by rule of the board;
8. Performed, procured, or aided or abetted in performing or procuring a criminal abortion;
9. Knowingly maintained a professional connection or association with any person who is in violation of this chapter or the rules or regulations of the board; knowingly aided, assisted, procured, or advised any person to practice pursuant to this chapter contrary to this chapter or to the rules and regulations of the board; knowingly performed any act which in any way aids, assists, procures, advises, or encourages any unlicensed person or entity to practice pursuant to this chapter; or divided fees or agreed to divide fees received for professional services with any person, firm, association, corporation, or other entity for bringing or referring a patient;
10. Violated or attempted to violate a law, rule, or regulation of this state, any other state, the board, the United States, or any other lawful authority without regard to whether the violation is criminally punishable, when such law, rule, or regulation relates to or in part regulates the practice of medicine, when the licensee or applicant knows or should know that such action violates such law, rule, or regulation; or violated a lawful order of the board previously entered by the board in a disciplinary hearing;
11. Committed any act or omission which is indicative of bad moral character or untrustworthiness;
12. Been adjudged mentally incompetent by a court of competent jurisdiction, within or outside this state. Any such adjudication shall automatically suspend the license, certificate, or permit of any such person and shall prevent the reissuance or renewal of any license, certificate, or permit so suspended for as long as the adjudication of incompetence is in effect unless the board, upon a finding that the licensee, certificate holder, or permit holder is mentally competent, orders otherwise. Any applicant who has been so adjudged to be mentally incompetent shall not receive a license, certificate, or permit unless the board, upon a finding that the applicant is mentally competent, orders otherwise;
13. 1. Become unable to practice pursuant to this chapter with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material, or as a result of any mental or physical condition.
  2. In enforcing this paragraph the board may, upon reasonable grounds, require a licensee, certificate holder, permit holder, or applicant to submit to a mental or physical examination by physicians designated by the board. The expense of this examination shall be borne by the licensee, certificate holder, or permit holder or applicant. The results of such examination shall be admissible in any hearing before the board, notwithstanding any claim of privilege under a contrary rule of law or statute, including, but not limited to, Code Section 24-5-501. Every person who shall accept the privilege of practicing a profession regulated under this chapter or who shall file an application for a license to practice a profession regulated under this chapter in this state shall be deemed to have given his or her consent to submit to such mental or physical examination and to have waived all objections to the admissibility of the results in any hearing before the board, upon the grounds that the same constitutes a privileged communication. If a licensee, certificate holder, or permit holder or applicant fails to submit to such an examination when properly directed to do so by the board, unless such failure was due to circumstances beyond his or her control, the board may enter a final order upon proper notice, hearing, and proof of such refusal. Any licensee, certificate holder, permit holder, or applicant who is prohibited from practicing pursuant to this chapter under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate to the board that he or she can resume or begin practice pursuant to this chapter with reasonable skill and safety to patients.
  3. For the purposes of this paragraph, the board and any entity which has entered into a contract with the board pursuant to Code Section 43-34-5.1, if specifically provided for in such contract, may, upon reasonable grounds, obtain any and all records relating to the mental or physical condition of a licensee, certificate holder, or permit holder or applicant, including psychiatric records; and such records shall be admissible in any hearing before the board, notwithstanding any privilege under a contrary rule of law or statute, including, but not limited to, Code Section 24-5-501. Every person who shall accept the privilege of practicing pursuant to this chapter in this state or who shall file an application to practice pursuant to this chapter in this state shall be deemed to have given his or her consent to the board's obtaining any such records and to have waived all objections to the admissibility of such records in any hearing before the board, upon the grounds that the same constitute a privileged communication.
  4. If any licensee, certificate holder, or permit holder or applicant could, in the absence of this paragraph, invoke a privilege to prevent the disclosure of the results of the examination provided for in subparagraph (B) of this paragraph or the records relating to the mental or physical condition of such licensee, certificate holder, or permit holder or applicant obtained pursuant to subparagraph (C) of this paragraph, all such information shall be received by the board in camera and shall not be disclosed to the public, nor shall any part of the record containing such information be used against any licensee, certificate holder, or permit holder or applicant in any other type of proceeding;
14. Cheated on or attempted to subvert an examination by the board;
15. Committed an act of sexual abuse, misconduct, or exploitation of a patient including guardians and parents of minors;
16. Mistreated or abandoned a patient or his or her records; provided, however, that a physician in compliance with Chapter 33 of Title 31 shall not be considered to have abandoned patient records;
17. Entered into conduct which discredits the profession;
18. Failed to furnish records, including, but not limited to, medical records, to the board in response to a subpoena or failed to answer questions on the renewal of the license, certificate, or permit;
19. Failed to maintain appropriate medical or other records as required by board rule;
20. Failed to follow generally accepted infection control procedures or Occupational Safety and Health Administration standards;
21. Failed to comply with federal laws and standards relating to the practice of medicine or other health care profession regulated under this chapter, the regulations of drugs, the delivery of health care, or other related laws;
22. Failed to comply with an order for child support as defined by Code Section 19-11-9.3; it shall be incumbent upon the applicant, licensee, certificate holder, or permit holder to supply a notice of release to the board from the appropriate child support authorities within the Department of Human Services indicating that the licensee, certificate holder, permit holder, or applicant has come into compliance with an order for child support so that a license, certificate, or permit may be issued if all other conditions for the issuance of a license, certificate, or permit are met; or
23. Except for practice settings identified in paragraph (7) of subsection (g) of Code Section 43-34-25 and arrangements approved by the board prior to July 1, 2009, as set forth in subsection (k) of Code Section 43-34-103, been a physician that has been or is employed by one the physician:
  1. Delegates medical acts to;
  2. Enters a protocol or job description with; or
  3. Is responsible for supervising.
    (a.1)The provisions of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," with respect to emergency action by a professional licensing board and summary suspension of a license are adopted and incorporated by reference into this Code section.
1. When the board finds that any person is unqualified to be granted a license, certificate, or permit or finds that any person should be disciplined pursuant to subsection (a) of this Code section, the board may take any one or more of the following actions:
  1. Refuse to grant a license, certificate, or permit to an applicant;
  2. Place the licensee, certificate holder, or permit holder on probation for a definite or indefinite period with terms and conditions;
  3. Administer a public or private reprimand, provided that a private reprimand shall not be disclosed to any person except the licensee, certificate holder, or permit holder;
  4. Suspend any license, certificate, or permit for a definite or indefinite period;
  5. Limit or restrict any license, certificate, or permit;
  6. Revoke any license, certificate, or permit;
  7. Impose a fine not to exceed $3,000.00 for each violation of a law, rule, or regulation relating to the licensee, certificate holder, permit holder, or applicant;
  8. Impose a fine in a reasonable amount to reimburse the board for the administrative costs;
  9. Require passage of a board approved minimum competency examination;
  10. Require board approved medical education;
  11. Condition the penalty, or withhold formal disposition, which shall be kept confidential unless there is a public order upon the applicant, licensee, certificate holder, or permit holder's submission to the care, counseling, or treatment by physicians or other professional persons, which may be provided pursuant to Code Section 43-34-5.1, and the completion of such care, counseling, or treatment, as directed by the board; or
  12. Require a board approved mental and physical evaluation of all licensees, certificate holders, or permit holders.
2. In addition to and in conjunction with the actions enumerated pursuant to paragraph (1) of this subsection, the board may make a finding adverse to the licensee, certificate holder, permit holder, or applicant but withhold imposition of judgment and penalty; or it may impose the judgment and penalty but suspend enforcement thereof and place the licensee, certificate holder, permit holder, or applicant on probation, which may be vacated upon noncompliance with such reasonable terms as the board may impose.
3. Neither the issuance of a private reprimand nor the denial of a license, certificate, or permit nor the denial of a request for reinstatement of a revoked license, certificate, or permit nor the refusal to issue a previously denied license, certificate, or permit shall be considered to be a contested case within the meaning of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act"; notice and hearing within the meaning of said chapter shall not be required, but the applicant or licensee, certificate holder, or permit holder shall be allowed to appear before the board if he or she so requests. The board may resolve a pending action by the issuance of a letter of concern. Such letter shall not be considered a disciplinary action or a contested case under Chapter 13 of Title 50 and shall not be disclosed to any person except the holder of a license, certificate, or permit or an applicant.
In its discretion, the board may restore and reissue a license, certificate, or permit issued under this chapter or any antecedent law and, as a condition thereof, may impose any disciplinary or corrective measure provided in this chapter.
The executive director is vested with the power and authority to make, or cause to be made through employees or agents of the board, such investigations as he or she, or the board, or any district attorney may deem necessary or advisable in the enforcement of this chapter. Any person properly conducting an investigation on behalf of the board shall have access to and may examine any writing, document, or other material, except that as to which privilege has not been denied or deemed waived by this chapter, and which is deemed by the chairperson of the board, or vice chairperson if the chairperson is not available, to be related to the fitness of any licensee, certificate holder, permit holder, or applicant to practice pursuant to this chapter. The executive director or the chairperson of the board, or vice chairperson if the chairperson is not available, may issue subpoenas to compel such access. When a subpoena is disobeyed, the board may apply to the superior court of the county where the person to whom the subpoena is issued resides for an order requiring obedience. Failure to comply with such order shall be punishable as for contempt of court. The results of any investigations whatsoever shall be reported only to the board, and the records of such investigations shall be kept by the board; no part of any such record shall be released for any purpose other than a hearing before the board and as provided in Chapter 34A of this title; nor shall such records be subject to subpoena. The board shall be authorized to release records that are not otherwise confidential or privileged only to another state or federal enforcement agency or lawful licensing authority and such release shall not alter the confidential or privileged nature of the documents.
In any hearing to determine a licensee's, certificate holder's, permit holder's, or applicant's fitness to practice pursuant to this chapter, any record relating to any patient of the licensee, certificate holder, permit holder, or applicant shall be admissible into evidence, regardless of any statutory privilege which such patient might otherwise be able to invoke. In addition, no such patient may withhold testimony bearing upon a licensee's, certificate holder's, permit holder's, or applicant's fitness to practice pursuant to this chapter on the ground of privilege between such licensee, certificate holder, permit holder, or applicant and such patient. Any testimony or written evidence relating to a patient of a licensee, certificate holder, permit holder, or applicant or to the record of any such patient shall be received by the board in camera and shall not be disclosed to the public.
In any hearing in which the fitness of a licensee, certificate holder, permit holder, or applicant to practice pursuant to this chapter is in question, the board may exclude all persons from its deliberation of the appropriate action to be taken and may, when in its discretion it deems it necessary, speak to a licensee, certificate holder, permit holder, or applicant in private.
A person, partnership, firm, corporation, association, authority, or other entity shall be immune from civil and criminal liability for reporting or investigating the acts or omissions of a licensee, certificate holder, permit holder, or applicant which violate the provisions of subsection (a) of this Code section or any other provisions of law relating to a licensee's, certificate holder's, permit holder's, or applicant's fitness to practice pursuant to this chapter or for initiating or conducting proceedings against such licensee, certificate holder, permit holder, or applicant, if such report is made or action is taken in good faith without fraud or malice. Any person who testifies in good faith without fraud or malice before the board in any proceeding involving a violation of subsection (a) of this Code section or any other law relating to a licensee's, certificate holder's, permit holder's, or applicant's fitness to practice pursuant to this chapter, or who makes a recommendation to the board in the nature of peer review, shall be immune from civil and criminal liability for so testifying.
Peer review conducted pursuant to this Code section shall be subject to the provisions of Article 6 of Chapter 7 of Title 31, relating to medical peer review groups. Any person providing information for purposes of peer review under this Code section and any person providing information to the board under this Code section shall not be criminally or civilly liable in any way for such actions unless:
1. Such information is unrelated to the carrying out of peer review under this Code section; or
2. Such information is false and the person disclosing such information knew that such information was false.
This Code section is enacted in the public welfare and shall be liberally construed.
The board shall investigate a licensee's, certificate holder's, or permit holder's fitness to practice pursuant to this chapter if the board has received a notification, pursuant to Code Section 33-3-27, regarding that licensee, certificate holder, or permit holder of a medical malpractice judgment or settlement in excess of $100,000.00 or a notification pursuant to Code Section 33-3-27 that there have been two or more previous judgments against or settlements with the licensee, certificate holder, or permit holder relating to practice pursuant to this chapter involving an action for medical malpractice. Every licensee, certificate holder, or permit holder shall notify the board of any settlement or judgment, excluding any low payment under a high/low agreement, involving the licensee, certificate holder, or permit holder involving an action for medical malpractice. For purposes of this subsection, the terms "high/low agreement" and "low payment" shall have the same meaning as in Code Section 33-3-27.
The board may conduct an assessment of a licensee's, certificate holder's, or permit holder's fitness to practice pursuant to this chapter if it has disciplined the licensee, certificate holder, or permit holder three times in the last ten years as a result of an action for medical malpractice. The assessment shall include an examination of the licensee's, certificate holder's, or permit holder's entire history with respect to practice pursuant to this chapter and a one-day on-site visit to the licensee's, certificate holder's, or permit holder's current practice location. The assessment shall be completed within six months of the third disciplinary action. As a result of its findings the board may take any action it deems necessary to reduce medical errors and promote patient safety, including revocation, suspension, or limiting the licensee's, certificate holder's, or permit holder's license, certificate, or permit or requiring additional clinical training, additional continuing medical education, proctoring, or referral to appropriate rehabilitation facilities. As used in this subsection, the term "action for medical malpractice" shall have the same meaning as provided in Code Section 9-3-70. The board shall implement this subsection upon the effective date of a specific appropriation of funds for purposes of this subsection as expressed in a line item making specific reference to the full funding of this subsection in an appropriations Act enacted by the General Assembly.
If any licensee, certificate holder, permit holder, or applicant after 30 days' notice fails to appear at any hearing of the board for that licensee, certificate holder, permit holder, or applicant, the board may proceed to hear the evidence against such licensee, certificate holder, permit holder, or applicant and take action as if such licensee, certificate holder, permit holder, or applicant had been present. A notice of hearing, initial or recommended decision, or final decision of the board in a disciplinary proceeding shall be served personally upon the licensee, certificate holder, permit holder, or applicant or served by certified mail, return receipt requested, to the last known address of record with the board. If such material is served by certified mail and is returned marked "unclaimed" or "refused" or is otherwise undeliverable and if the licensee, certificate holder, permit holder, or applicant cannot, after diligent effort, be located, the executive director shall be deemed to be the agent for service for such licensee, certificate holder, permit holder, or applicant for purposes of this Code section, and service upon the executive director shall be deemed to be service upon the licensee, certificate holder, permit holder, or applicant.
The voluntary surrender of a license, certificate, or permit or the failure to renew a license, certificate, or permit by the end of the established penalty period shall have the same effect as a revocation of said license, certificate, or permit, subject to reinstatement in the discretion of the board. The board may restore and reissue a license, certificate, or permit to practice under this chapter and, as a condition thereof, may impose any disciplinary sanction provided by this Code section.
Subsections (a) and (b) of this Code section shall be supplemental to and shall not operate to prohibit the board from acting pursuant to those provisions of law which may now or hereafter authorize other disciplinary grounds and actions for the board. In cases where those other provisions of law so authorize other disciplinary grounds and actions but subsections (a) and (b) of this Code section limit such grounds for action, those other provisions shall apply.
The board shall publish all final public disciplinary actions taken against a licensee, certificate holder, or permit holder pursuant to this chapter on its official website.

(b.1)The board shall not suspend the license, certificate, or permit of a person licensed by the board because he or she is a borrower in default who is not in satisfactory repayment status under the Georgia Higher Education Loan Program as determined by the Georgia Higher Education Assistance Corporation or who has been certified by any entity of the federal government for nonpayment or default or breach of a repayment or service obligation under any federal education loan, loan repayment, or service conditional scholarship program.

(Ga. L. 1909, p. 123, § 10; Civil Code 1910, § 1741; Ga. L. 1913, p. 101, § 14; Ga. L. 1918, p. 173, § 8; Code 1933, §§ 84-916, 84-1210; Ga. L. 1957, p. 129, § 1; Ga. L. 1972, p. 673, § 1; Ga. L. 1974, p. 1156, § 6; Ga. L. 1977, p. 317, § 1; Ga. L. 1980, p. 3, § 2; Code 1981, §43-34-37; Ga. L. 1982, p. 3, § 43; Ga. L. 1982, p. 2266, § 5; Ga. L. 1983, p. 3, § 32; Ga. L. 1983, p. 670, §§ 1, 2; Ga. L. 1987, p. 407, § 2; Ga. L. 1992, p. 6, § 43; Ga. L. 1993, p. 91, § 43; Ga. L. 1999, p. 81, § 43; Ga. L. 1999, p. 296, § 25; Ga. L. 2001, p. 192, § 4; Ga. L. 2001, p. 1170, § 3; Ga. L. 2005, p. 1, § 9/SB 3; Ga. L. 2008, p. 324, § 43/SB 455; Code 1981, §43-34-8, as redesignated by Ga. L. 2009, p. 859, § 1/HB 509; Ga. L. 2010, p. 543, § 3/SB 252; Ga. L. 2010, p. 878, § 43/HB 1387; Ga. L. 2011, p. 99, § 74/HB 24; Ga. L. 2017, p. 774, § 43/HB 323; Ga. L. 2019, p. 462, § 1-16/SB 214; Ga. L. 2019, p. 826, § 2/HB 128; Ga. L. 2019, p. 1056, § 43/SB 52.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised language and punctuation in paragraph (a)(2); substituted "had other disciplinary" for "or had other disciplinary" in paragraph (a)(5); substituted "which need not" for "which conduct or practice need not" in the first sentence of paragraph (a)(7); in paragraph (a)(9), substituted "knowingly aided" for "or knowingly aided" near the beginning, and substituted "knowingly performed" for "or knowingly performed" near the middle; near the end of paragraph (a)(10), substituted "when such law, rule, or regulation" for "which law, rule, or regulation", substituted "such action violates" for "such action is violative", and revised punctuation; redesignated former paragraph (a)(13) as subparagraph (a)(13)(A), redesignated former subparagraphs (a)(13)(A) through (a)(13)(C) as subparagraphs (a)(13)(B) through (a)(13)(D), respectively; revised punctuation at the end of subparagraphs (a)(13)(A) through (a)(13)(C); in subparagraph (a)(13)(D), substituted "subparagraph (B)" for "subparagraph (A)" near the beginning and substituted "subparagraph (C)" for "subparagraph (B)" near the end; revised punctuation in paragraph (a)(16) and subparagraph (a)(24)(A); substituted "Occupational Safety and Health Administration standards;" for "Occupational Safety and Health Administration (OSHA) standards;" in paragraph (a)(20); substituted "which shall be kept confidential" for "which actions shall be kept confidential," near the beginning of subparagraph (b)(1)(K); and substituted "which may be vacated" for "which probation may be vacated" near the end of paragraph (b)(2).

The 2019 amendments. The first 2019 amendment, effective July 1, 2019, in subsection (a), added "; or" at the end of paragraph (a)(22), deleted former paragraph (a)(23), which read: "Failed to enter into satisfactory repayment status and is a borrower in default as defined by Code Section 20-3-295; it shall be incumbent upon the applicant, licensee, certificate holder, or permit holder to supply the notice of release to the board from the Georgia Higher Education Assistance Corporation indicating that the licensee, certificate holder, permit holder, or applicant has entered into satisfactory repayment status so that a license, certificate, or permit may be issued or granted if all other conditions for issuance of a license, certificate, or permit are met; or", and redesignated former paragraph (a)(24) as present paragraph (a)(23); and, in subsection (b.1), rewrote the first sentence, which read: "The board shall suspend the license, certificate, or permit of a person licensed by the board who has been certified by a federal agency and reported to the board for nonpayment or default or breach of a repayment or service obligation under any federal education loan, loan repayment, or service conditional scholarship program.", and deleted the second through fifth sentences, which read: "Prior to the suspension, the licensee, certificate holder, or permit holder shall be entitled to notice of the board's intended action and opportunity to appear before the board according to procedures set forth in the board's rules and regulations. A suspension of a license, certificate, or permit under this subsection is not a contested case under Chapter 13 of Title 50, 'Georgia Administrative Procedure Act.' A license, certificate, or permit suspended under this Code section shall not be reinstated or reissued until the person provides the board a written release issued by the reporting agency stating that the person is making payments on the loan or satisfying the service requirements in accordance with an agreement approved by the reporting agency. If the person has continued to meet all other requirements for issuance of a license, certificate, or permit during the period of suspension, reinstatement of the license, certificate, or permit shall be automatic upon receipt of the notice and payment of any reinstatement fee which the board may impose." The second 2019 amendment, effective July 1, 2019, in subsection (j), inserted ", excluding any low payment under a high/low agreement," near the middle of the second sentence, and added the last sentence. The third 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, inserted "the" preceding "'Georgia Administrative Procedure Act.'" in subsection (b.1). See Editor's notes regarding the effect of the amendments.

Cross references.

- Criminal abortion, § 16-12-140 et seq.

Denial, restriction, or revocation of medical staff privileges by public hospital, §§ 31-7-7,31-7-8.

Medical peer review groups, § 31-7-130 et seq.

Requirement to determine probable gestational age of unborn child, § 31-9B-2.

Observance of provisions of "living wills" by physicians and other health-care professionals, § 31-32-7.

Authorization for civil actions for medical malpractice, § 51-1-27.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2009, "Department of Human Services" was substituted for "Department of Human Resources" in paragraph (a)(22), "Section 43-34-25" was substituted for "Section 43-34-26" in paragraph (a)(24), and "of law" was substituted for "are law" in the last sentence of subsection (n).

Pursuant to Code Section 28-9-5, in 2017, "of" was deleted following "such action violates" near the end of paragraph (a)(10).

Editor's notes.

- Ga. L. 2001, p. 1170, § 1, not codified by the General Assembly, provides that: "The General Assembly finds that managed health care has benefited consumers by negotiating contracts with physicians which prohibit such physicians from billing consumers for fees above and beyond the amount paid by the managed care plan. In order to ensure that the consumers of this state continue to receive such benefits, it is imperative that physicians adhere to their contractual obligations to charge only those fees contractually agreed to and not attempt to pass additional or hidden costs along to consumers. The purpose of Section 2 of this Act is to ensure that consumers are not charged fees above and beyond those already contracted for between their physician and their health benefit plans."

Ga. L. 2005, p. 1, § 1/SB 3, not codified by the General Assembly, provides that: "The General Assembly finds that there presently exists a crisis affecting the provision and quality of health care services in this state. Hospitals and other health care providers in this state are having increasing difficulty in locating liability insurance and, when such hospitals and providers are able to locate such insurance, the insurance is extremely costly. The result of this crisis is the potential for a diminution of the availability of access to health care services and a resulting adverse impact on the health and well-being of the citizens of this state. The General Assembly further finds that certain civil justice and health care regulatory reforms as provided in this Act will promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and will thereby assist in promoting the provision of health care liability insurance by insurance providers. The General Assembly further finds that certain needed reforms affect not only health care liability claims but also other civil actions and accordingly provides such general reforms in this Act."

Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Pursuant to the terms of subsection (k), funds were not appropriated at the 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, or 2020 session of the General Assembly.

Ga. L. 2019, p. 1056, § 54(e)/SB 52, not codified by the General Assembly, provides: "In the event of a conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2019 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendment to subsection (b.1) of this Code section by Ga. L. 2019, p. 1056, § 43/SB 52, was not given effect.

Law reviews.

- For article on the effect of nolo contendere plea on conviction, see 13 Ga. L. Rev. 723 (1979). For article, "Georgia's Open Records and Open Meetings Laws: A Continued March Toward Government in the Sunshine," see 40 Mercer L. Rev. 1 (1988). For article on 2005 amendment of this Code section, see 22 Georgia St. U.L. Rev. 221 (2005). For article, "Evidence," see 27 Georgia St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Georgia St. U.L. Rev. 1 (2011). For note discussing application of procedural due process requirements to hearings by administrative tribunals, see 32 Mercer L. Rev. 359 (1980). For note on the 2001 amendment to this Code section, see 18 Georgia St. U.L. Rev. 241 (2001). For note on the 2001 amendment to this Code section, see 18 Georgia St. U.L. Rev. 249 (2001).

JUDICIAL DECISIONS

Constitutionality.

- O.C.G.A. § 43-34-37 (see now O.C.G.A. § 43-34-42) is not unconstitutionally vague. Jackson v. Composite State Bd. of Medical Exmrs., 256 Ga. 264, 347 S.E.2d 581 (1986).

Title of O.C.G.A. § 43-34-37 (see now O.C.G.A. § 43-34-42) which read: "Authority to refuse license or discipline physician; enforcement investigations generally," is descriptive generally of the purposes of the statute and gives sufficient notice of the statute's content pursuant to Ga. Const. 1983, Art. III, Sec. V, Para. III. Jackson v. Composite State Bd. of Medical Exmrs., 256 Ga. 264, 347 S.E.2d 581 (1986).

Right to practice medicine is conditional and subordinate to state's power and duty to safeguard public health, and it is the universal rule that in performance of such duty and in exercise of such power, the state may regulate and control practice of medicine and those who engage therein, subject only to limitation that measures adopted must be reasonable, necessary, and appropriate to accomplish legislature's valid objective of protecting health and welfare of its inhabitants. Geiger v. Jenkins, 316 F. Supp. 370 (N.D. Ga. 1970), aff'd, 401 U.S. 985, 91 S. Ct. 1236, 28 L. Ed. 2d 525 (1971).

Investigation prior to fitness hearing not subject to due process protections.

- When investigator is attempting to gain information concerning doctor's fitness to practice medicine, due process does not require at this stage of the matter that the doctor be informed of nature of charges that have been made to board or names of doctor's accusers, nor is the doctor denied due process because the doctor is not permitted to participate in selecting documents to be collected by investigator or to participate in deliberations prior to decision to initiate proceedings against the doctor. Gilmore v. Composite State Bd. of Medical Exmrs., 243 Ga. 415, 254 S.E.2d 365 (1979).

Licensee must be allowed access to information.

- Licensee facing the possibility of the loss of a license/livelihood must be allowed access to information held by the board that is exculpatory in order for the application of O.C.G.A. §§ 43-1-19(h)(2) and43-34-37(d) (see now O.C.G.A. § 43-34-42) to reach a constitutional result. Wills v. Composite State Bd. of Medical Exmrs., 259 Ga. 549, 384 S.E.2d 636 (1989).

Release of file to prepare for hearing was not prohibited.

- When plaintiff sought portions of the Composite State Board of Medical Examiner's (now Georgia Composite Medical Board) file for the express purpose of preparing for a hearing before the board, the release of the file was not prohibited under O.C.G.A. §§ 43-1-19(h)(2) and43-34-37(d) (see now O.C.G.A. § 43-34-42). Wills v. Composite State Bd. of Medical Exmrs., 259 Ga. 549, 384 S.E.2d 636 (1989).

Board's authority to revoke license is permissive.

- When statute in permissive terms, as by use of word "may," authorizes privation of valuable right and imposition of penalty, the permissive terms are not mandatory, and conferee of power has discretion in exercising the power. Smith v. State Bd. of Medical Exmrs., 46 Ga. App. 456, 167 S.E. 769 (1933).

Physician's acts constituted making of a medical decision.

- Conduct of physician, including going to hospital, reviewing patient's chart, determining that necessary tests had been made and that patient was asleep, constituted making a medical decision, and when this was done under influence of alcohol and drugs, disciplinary action was warranted. Composite State Bd. of Medical Exmrs. v. Hertell, 163 Ga. App. 665, 295 S.E.2d 223 (1982).

Driving under influence unrelated to practice of medicine.

- Trial court was correct in ruling that the physician's alleged act of driving under the influence of alcohol and drugs was not conduct encompassed by O.C.G.A. § 43-34-37(a)(7) (see now O.C.G.A. § 43-34-42); the conduct was unrelated to practice of medicine, and therefore insufficient as a matter of law to warrant disciplinary action. Composite State Bd. of Medical Exmrs. v. Hertell, 163 Ga. App. 665, 295 S.E.2d 223 (1982).

Tardiness of appellant in filing brief and enumeration of errors is not grounds for dismissal under O.C.G.A. § 43-34-37(b) (see now O.C.G.A. § 43-34-42). Composite State Bd. of Medical Exmrs. v. Hertell, 163 Ga. App. 665, 295 S.E.2d 223 (1982).

Appeal from superior court's review of use and enforcement of investigative powers of the Composite State Board of Medical Examiners (now Georgia Composite Medical Board) required discretionary appeal procedures. Rankin v. Composite State Bd. of Medical Exmrs., 220 Ga. App. 421, 469 S.E.2d 500 (1996).

Cited in Wall v. American Optometric Ass'n, 379 F. Supp. 175 (N.D. Ga. 1974); Morton v. Skrine, 242 Ga. 844, 252 S.E.2d 408 (1979); Morton v. Gardner, 242 Ga. 852, 252 S.E.2d 413 (1979); Rogers v. Composite State Bd. of Medical Exmrs., 245 Ga. 364, 265 S.E.2d 1 (1980); Morton v. Stewart, 153 Ga. App. 636, 266 S.E.2d 230 (1980); United States v. Composite State Bd. of Medical Exmrs., 656 F.2d 131 (5th Cir. 1981); American Ass'n of Cab Cos. v. Olukoya, 233 Ga. App. 731, 505 S.E.2d 761 (1998).

OPINIONS OF THE ATTORNEY GENERAL

Circumstances determining if distance too great between prescription and nurse's administration.

- Whether distance, both in time as well as space, between physician prescribing and nurse administering medication or treatment would subject physician to disciplinary proceedings depends on circumstances of each individual case and a determination by the Composite State Board of Medical Examiners (now Georgia Composite Medical Board) as to whether that practice conforms to minimal standards of acceptable and prevailing medical practice. 1979 Op. Att'y Gen. No. 79-2.

Reporting payments in medical malpractice case.

- A physician licensed by the Georgia Composite Medical Board is required to report to the Board a payment made as a result of a high-low agreement in a medical malpractice case, even if there is a judgment in favor of the physician. 2016 Op. Att'y Gen. No. 16-6.

RESEARCH REFERENCES

Am. Jur. 2d.

- 51 Am. Jur. 2d, Licenses and Permits, §§ 36, 37, 56 et seq. 61 Am. Jur. 2d, Physicians, Surgeons, and Other Healers, §§ 26 et seq., 51 et seq., 74 et seq.

C.J.S.

- 53 C.J.S., Licenses, § 58 et seq. 70 C.J.S., Physicians, Surgeons, and Other Health-Care Providers, § 11 et seq.

ALR.

- Validity of statute providing for revocation of license of physician, surgeon, or dentist, 5 A.L.R. 94; 79 A.L.R. 323.

Grounds for revocation of valid license of physician, surgeon, or dentist, 82 A.L.R. 1184.

What offenses involve moral turpitude within statute providing grounds for denying or revoking license of dentist, physician, or surgeon, 109 A.L.R. 1459.

What amounts to conviction or satisfies requirement as to showing of conviction, within statute making conviction a ground for refusing to grant or for canceling license or special privilege, 113 A.L.R. 1179.

Practice of medicine, dentistry, or law through radio broadcasting stations, newspapers, or magazines, 114 A.L.R. 1506.

Effect of acquittal or dismissal in criminal prosecution to bar revocation of license of physician or disbarment of attorney, 123 A.L.R. 779.

Pardon as defense to proceeding for suspension or cancellation of license of physician, surgeon, or dentist, 126 A.L.R. 257.

Hearsay in proceeding for suspension or revocation of license to conduct business or profession, 142 A.L.R. 1388.

Statutory power to revoke or suspend license of physician, dentist, or attorney for "unprofessional conduct" as exercisable without antecedent adoption of regulation as to what shall constitute such conduct, 163 A.L.R. 909.

Conviction as proof of grounds for revocation or suspension of license of physician, surgeon, or dentist, where conviction of such is not an independent cause, 167 A.L.R. 228.

Alcoholism, narcotics addiction, or misconduct with respect to alcoholic beverages or narcotics, as ground for revocation or suspension of license to practice medicine or dentistry, 93 A.L.R.2d 1398.

Revocation or suspension of physician's or surgeon's license for false claims, medical reports, or bills for medical services in personal injury litigation, 95 A.L.R.2d 873.

Professional incompetency as ground for disciplinary measure against physician or dentist, 28 A.L.R.3d 487.

Pretrial discovery in disciplinary proceedings against physician, 28 A.L.R.3d 1440.

Criminal prosecution or disciplinary action against medical practitioner for fraud in connection with claims under Medicaid, Medicare, or similar welfare program for providing medical services, 50 A.L.R.3d 549; 70 A.L.R.4th 132.

Entrapment as defense in proceedings to revoke or suspend license to practice law or medicine, 61 A.L.R.3d 357.

Physician's liability for causing patient to become addicted to drugs, 16 A.L.R.4th 999.

Wrongful or excessive prescription of drugs as ground for revocation or suspension of physician's or dentist's license to practice, 22 A.L.R.4th 668; 19 A.L.R.6th 577.

Physician's or other healer's conduct, or conviction of offense not directly related to medical practice, as ground for disciplinary action, 34 A.L.R.4th 609.

Physician's or other healer's conduct in connection with defense of or resistance to malpractice action as ground for revocation of license or other disciplinary action, 44 A.L.R.4th 248.

Improper or immoral sexually related conduct toward patient as ground for disciplinary action against physician, dentist, or other licensed healer, 59 A.L.R.4th 1104.

Filing of false insurance claims for medical services as ground for disciplinary action against dentist, physician, or other medical practitioner, 70 A.L.R.4th 132.

Necessity of expert evidence in proceeding for revocation or suspension of license of physician, surgeon, or dentist, 74 A.L.R.4th 969.

Existence, nature, and application to medical professional disciplinary board of privilege against disclosure of identity of informer, 86 A.L.R.4th 1024.

Rights as to notice and hearing in proceeding to revoke or suspend license to practice medicine, 10 A.L.R.5th 1.

Medical malpractice: negligent catheterization, 31 A.L.R.5th 1.

False or fraudulent statements or nondisclosures in application for issuance or renewal of license to practice as ground for disciplinary action against, or refusal to license, medical practitioner, 32 A.L.R.5th 57.

Pretrial discovery in disciplinary proceedings against physician, 65 A.L.R.6th 295.

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