A. The board may refuse to license and may revoke or suspend a license that has been issued by the board or a previous board and may fine, censure or reprimand a licensee upon satisfactory proof being made to the board that the applicant for or holder of the license has been guilty of unprofessional or dishonorable conduct. The board may also refuse to license an applicant who is unable to practice medicine, practice as a physician assistant or an anesthesiologist assistant, practice genetic counseling or engage in the practice of polysomnography, pursuant to Section 61-7-3 NMSA 1978. All proceedings shall be as required by the Uniform Licensing Act [61-1-1 to 61-1-31 NMSA 1978] or the Impaired Health Care Provider Act [Chapter 61, Article 7 NMSA 1978].
B. The board may, in its discretion and for good cause shown, place the licensee on probation on the terms and conditions it deems proper for protection of the public, for the purpose of rehabilitation of the probationer or both. Upon expiration of the term of probation, if a term is set, further proceedings may be abated by the board if the holder of the license furnishes the board with evidence that the licensee is competent to practice, is of good moral character and has complied with the terms of probation.
C. If evidence fails to establish to the satisfaction of the board that the licensee is competent and is of good moral character or if evidence shows that the licensee has not complied with the terms of probation, the board may revoke or suspend the license. If a license to practice in this state is suspended, the holder of the license may not practice during the term of suspension. A person whose license has been revoked or suspended by the board and who thereafter practices or attempts or offers to practice in New Mexico, unless the period of suspension has expired or been modified by the board or the license reinstated, is guilty of a felony and shall be punished as provided in Section 61-6-20 NMSA 1978.
D. "Unprofessional or dishonorable conduct", as used in this section, means, but is not limited to because of enumeration, conduct of a licensee that includes the following:
(1) procuring, aiding or abetting a criminal abortion;
(2) employing a person to solicit patients for the licensee;
(3) representing to a patient that a manifestly incurable condition of sickness, disease or injury can be cured;
(4) obtaining a fee by fraud or misrepresentation;
(5) willfully or negligently divulging a professional confidence;
(6) conviction of an offense punishable by incarceration in a state penitentiary or federal prison or conviction of a misdemeanor associated with the practice of the licensee. A copy of the record of conviction, certified by the clerk of the court entering the conviction, is conclusive evidence;
(7) habitual or excessive use of intoxicants or drugs;
(8) fraud or misrepresentation in applying for or procuring a license to practice in this state or in connection with applying for or procuring renewal, including cheating on or attempting to subvert the licensing examinations;
(9) making false or misleading statements regarding the skill of the licensee or the efficacy or value of the medicine, treatment or remedy prescribed or administered by the licensee or at the direction of the licensee in the treatment of a disease or other condition of the human body or mind;
(10) impersonating another licensee, permitting or allowing a person to use the license of the licensee or practicing as a licensee under a false or assumed name;
(11) aiding or abetting the practice of a person not licensed by the board;
(12) gross negligence in the practice of a licensee;
(13) manifest incapacity or incompetence to practice as a licensee;
(14) discipline imposed on a licensee by another state, including denial, probation, suspension or revocation, based upon acts by the licensee similar to acts described in this section. A certified copy of the record of suspension or revocation of the state making the suspension or revocation is conclusive evidence;
(15) the use of a false, fraudulent or deceptive statement in a document connected with the practice of a licensee;
(16) fee splitting;
(17) the prescribing, administering or dispensing of narcotic, stimulant or hypnotic drugs for other than accepted therapeutic purposes;
(18) conduct likely to deceive, defraud or harm the public;
(19) repeated similar negligent acts;
(20) employing abusive billing practices;
(21) failure to report to the board any adverse action taken against the licensee by:
(a) another licensing jurisdiction;
(b) a peer review body;
(c) a health care entity;
(d) a professional or medical society or association;
(e) a governmental agency;
(f) a law enforcement agency; or
(g) a court for acts or conduct similar to acts or conduct that would constitute grounds for action as defined in this section;
(22) failure to report to the board surrender of a license or other authorization to practice in another state or jurisdiction or surrender of membership on any medical staff or in any medical or professional association or society following, in lieu of and while under disciplinary investigation by any of those authorities or bodies for acts or conduct similar to acts or conduct that would constitute grounds for action as defined in this section;
(23) failure to furnish the board, its investigators or representatives with information requested by the board;
(24) abandonment of patients;
(25) being found mentally incompetent or insane by a court of competent jurisdiction;
(26) injudicious prescribing, administering or dispensing of a drug or medicine;
(27) failure to adequately supervise, as provided by board rule, a medical or surgical assistant or technician or professional licensee who renders health care;
(28) sexual contact with a patient or person who has authority to make medical decisions for a patient, other than the spouse of the licensee;
(29) conduct unbecoming in a person licensed to practice or detrimental to the best interests of the public;
(30) the surrender of a license or withdrawal of an application for a license before another state licensing board while an investigation or disciplinary action is pending before that board for acts or conduct similar to acts or conduct that would constitute grounds for action pursuant to this section;
(31) sexual contact with a former mental health patient of the licensee, other than the spouse of the licensee, within one year from the end of treatment;
(32) sexual contact with a patient when the licensee uses or exploits treatment, knowledge, emotions or influence derived from the previous professional relationship;
(33) improper management of medical records, including failure to maintain timely, accurate, legible and complete medical records;
(34) failure to provide pertinent and necessary medical records to a physician or patient of the physician in a timely manner when legally requested to do so by the patient or by a legally designated representative of the patient;
(35) undertreatment of pain as provided by board rule;
(36) interaction with physicians, hospital personnel, patients, family members or others that interferes with patient care or could reasonably be expected to adversely impact the quality of care rendered to a patient;
(37) soliciting or receiving compensation by a physician assistant or anesthesiologist assistant from a person who is not an employer of the assistant;
(38) willfully or negligently divulging privileged information or a professional secret; or
(39) the use of conversion therapy on a minor.
E. As used in this section:
(1) "conversion therapy" means any practice or treatment that seeks to change a person's sexual orientation or gender identity, including any effort to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward persons of the same sex. "Conversion therapy" does not mean:
(a) counseling or mental health services that provide acceptance, support and understanding of a person without seeking to change gender identity or sexual orientation; or
(b) mental health services that facilitate a person's coping, social support, sexual orientation or gender identity exploration and development, including an intervention to prevent or address unlawful conduct or unsafe sexual practices, without seeking to change gender identity or sexual orientation;
(2) "fee splitting" includes offering, delivering, receiving or accepting any unearned rebate, refunds, commission preference, patronage dividend, discount or other unearned consideration, whether in the form of money or otherwise, as compensation or inducement for referring patients, clients or customers to a person, irrespective of any membership, proprietary interest or co-ownership in or with a person to whom the patients, clients or customers are referred;
(3) "gender identity" means a person's self-perception, or perception of that person by another, of the person's identity as a male or female based upon the person's appearance, behavior or physical characteristics that are in accord with or opposed to the person's physical anatomy, chromosomal sex or sex at birth;
(4) "minor" means a person under eighteen years of age; and
(5) "sexual orientation" means heterosexuality, homosexuality or bisexuality, whether actual or perceived.
F. Licensees whose licenses are in a probationary status shall pay reasonable expenses for maintaining probationary status, including laboratory costs when laboratory testing of biological fluids are included as a condition of probation.
History: 1953 Comp., § 67-5-9; Laws 1969, ch. 46, § 6; 1979, ch. 63, § 3; 1983, ch. 260, § 2; 1978 Comp., § 61-6-14, recompiled as § 61-6-15 by Laws 1989, ch. 269, § 11; 1991, ch. 148, § 3; 1994, ch. 80, § 7; 1997, ch. 221, § 1; 2001, ch. 96, § 4; 2003, ch. 19, § 15; 2005, ch. 159, § 4; 2008, ch. 53, § 12; 2008, ch. 54, § 13; 2017, ch. 132, § 3.
ANNOTATIONSRepeals. — Laws 1989, ch. 269, § 32 repealed former 61-6-15 NMSA 1978, as amended by Laws 1973, ch. 361, § 7, relating to definition of "practice of medicine" and exceptions from this article, effective July 1, 1989.
The 2017 amendment, effective June 16, 2017, included the use of conversion therapy on a minor in the list of acts that are deemed unprofessional or dishonorable conduct under this section, provided that the New Mexico medical board may revoke or suspend any license issued by the board if any licensee is guilty of using conversion therapy on a minor, and defined certain terms as used in this section; in Subsection A, after "anesthesiologist assistant", deleted "or"; in Subsection D, added Paragraph D(39); and in Subsection E, added Paragraph E(1) and paragraph designation "(2)" preceding the remaining language from former Subsection E, and added Paragraphs E(3) through E(5).
2008 Multiple Amendments. — Laws 2008, ch. 54, § 13, effective July 1, 2008, in Subsection A, after "anesthesiologist assistant", added "or engage in the practice of polysomnography".
Laws 2008, ch. 53, § 12, effective July 1, 2009, in Subsection A, after "anesthesiologist assistant", added "or practice genetic counseling".
The 2005 amendment, effective April 5, 2005, in Subsection D(14), added that "unprofessional or dishonorable conduct" includes the denial of a license by another state; and in Subsection D(28), deleted the qualification that the licensee represent or infer that the activity is a legitimate part of the patient's treatment.
The 2003 amendment, effective June 20, 2003, rewrote this section to the extent that a detailed comparison is impracticable.
The 2001 amendment, effective April 2, 2001, inserted "or conviction of a misdemeanor associated with the practice of medicine" in Paragraph D(6).
The 1997 amendment, effective June 20, 1997, substituted "Impaired Health Care Provider Act" for "Impaired Physician Act" at the end of Subsection A, substituted "discipline imposed on a licensee to practice medicine by another state, including probation, suspension or revocation" for "the suspension or revocation by another state of a license to practice medicine" at the beginning of Paragraph D(14), added Paragraph D(30), and made minor stylistic changes in Subsections B and D.
The 1994 amendment, effective May 18, 1994, added the second sentence and added "or the Impaired Physician Act" in the last sentence in Subsection A; substituted "the physician" for "he" in Subsection B; substituted "the" for "his" preceding "period of suspension" and "the physician's" for "his" preceding "license reinstated" in Subsection C; substituted "the physician" for "him" in Subsection D(2); deleted "annual" preceding "renewal" in Subsection D(8); substituted "the physician" for "his" twice and "the physician" for "him" in Subsection D(9); substituted "the physician's" for "his" in Subsection D(10); added "administering or dispensing" following "prescribing" in Subsection D(17); substituted "the physician" for "him" in Subsection D(21); added "administering or dispensing of any drug or medicine" in Subsection D(26); and substituted "for" for "of" following "inducement" in Subsection E.
The 1991 amendment, effective June 14, 1991, in Subsection D, added Paragraphs (27) and (28), redesignated former Paragraph (27) as Paragraph (29) and made a related stylistic change and made a minor stylistic change in Subsection A.
The 1989 amendment, effective July 1, 1989, renumbered this section, which formerly was 61-6-14 NMSA 1978, inserted in the section heading "licensee may be fined, censured or reprimanded", "unprofessional and dishonorable conduct defined", and "fees and expenses"; in Subsection A twice substituted "may" for "shall" and inserted "and may fine, censure or reprimand any licensee" in the first sentence, and deleted "in connection with the issuance, renewal, suspension or revocation of licenses" following "proceedings" in the second sentence; designated the former third and fourth sentences of Subsection A as present Subsection B; designated the former fifth and sixth sentences of Subsection A as present Subsection C, while substituting "61-6-20" for "61-6-18" at the end of the last sentence therein; redesignated former Subsection B as present Subsection D; substituted "confidence" for "secret" in Subsection D(5); substituted all of the present language of Subsection D(8) beginning with "annual" for "an annual registration"; added all of the language of Subsection D(10) following "registration"; substituted the present provisions of Subsection D(15) for "making a fraudulent claim"; added present Subsections D(18) through D(26); redesignated former Subsection D(18) as present Subsection D(27); redesignated former Subsection C as present Subsection E; deleted former Subsection D, relating to hospital report of loss of physician's privilege; added Subsections F and G; redesignated former Subsection E as present Subsection H; in Subsection H substituted "entity" for "company", inserted "or indemnifying physicians for professional liability", and substituted "settlements or judgments" for "malpractice claims"; and made minor stylistic changes throughout the section.
Due process. — Former Subsection D(27) (now Subsection D(29)) of this section, defining "unprofessional or dishonorable conduct" to include conduct unbecoming in one licensed to practice medicine or detrimental to the best interests of the public, is not void for vagueness. McDaniel v. N.M. Bd. of Med. Exam'rs, 1974-NMSC-062, 86 N.M. 447, 525 P.2d 374.
Terms of probation not unconstitutionally vague. — Where one of the terms of probation imposed by the board on a physician found guilty of unprofessional conduct for falsely prescribing demerol for the alleged use of another when in fact the drug was for personal use was that the doctor not take or have in the doctor's possession "any dangerous drugs" without the consent of a psychiatrist, and the physician thereafter prescribed the drug ritalin for a patient and diverted some of it for personal use, revocation of the physician's license for violating probation was justified, as under the facts the terms thereof were not unconstitutionally vague. McDaniel v. N.M. Bd. of Med. Exam'rs, 1974-NMSC-062, 86 N.M. 447, 525 P.2d 374.
Prior judicial determination unnecessary. — An administrative determination of "unlawful, illegal or unauthorized" conduct sufficient to support a conclusion of "unprofessional conduct," as provided in this section, is not dependent upon a prior judicial determination of criminal guilt. Strance v. N.M. Bd. of Med. Exam'rs, 1971-NMSC-081, 83 N.M. 15, 487 P.2d 1085.
Restraint of proceedings. — Board of medical examiners has exclusive jurisdiction regarding the granting and revoking of certificates admitting physicians and surgeons to practice, and as statutes do not provide for disqualification of board members, proceedings before the board may not be restrained merely by reason of the fact that the board itself initiated the proceedings against a physician and was, therefore, an interested party. Seidenberg v. N.M. Bd. of Med. Exam'rs, 1969-NMSC-028, 80 N.M. 135, 452 P.2d 469.
Subsection D(5) does not create privilege; it only describes ethical constraints placed upon a physician. Trujillo v. Puro, 1984-NMCA-050, 101 N.M. 408, 683 P.2d 963, cert. denied, 101 N.M. 362, 683 P.2d 44.
Reinstatement after revocation. — Board of medical examiners has the power to suspend a license inherent in its power to revoke, but when revocation is accomplished, the only method of reinstating revoked licensee to full privileges is by the means of reapplication. 1953 Op. Att'y Gen. No. 53-5839.
Under former law, the legislature did not define unprofessional conduct, nor prohibit advertising by physicians; former statute did not go far enough to give power to the board of medical examiners to revoke the license of a physician for advertising unless said advertising was false, immoral and against the public welfare. 1939 Op. Att'y Gen. No. 39-3048.
No lay control of professional medical judgments. — An entity, such as a clinic, hospital or other similar corporate entity employing physicians, may not engage in conduct amounting to the practice of medicine by exerting lay control of professional medical judgments. 1987 Op. Att'y Gen. No. 87-39.
Law reviews. — For article, "New Mexico's 1969 Criminal Abortion Law," see 10 Nat. Res. J. 591 (1970).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 61 Am. Jur. 2d Physicians, Surgeons and Other Healers §§ 74 to 100.
Validity of statute providing for revocation of license of physician or surgeon, 5 A.L.R. 94, 79 A.L.R. 323.
Liquor law, violation of, as infamous crime or offense involving moral turpitude for which physician's license may be revoked, 40 A.L.R. 1049, 71 A.L.R. 217.
Advertising by physician, surgeon or other person professing healing arts, constitutionality of statute or ordinance prohibiting or regulating, 54 A.L.R. 400.
Grounds for revocation of valid license of physician or surgeon, 54 A.L.R. 1504, 82 A.L.R. 1184.
Moral turpitude, what offenses involve, within statute providing grounds for denying license, 109 A.L.R. 1459.
Conviction, what amounts to within statute making conviction ground for refusing license, 113 A.L.R. 1179.
Practice of medicine, dentistry or law through radio broadcasting stations, newspapers or magazines, 114 A.L.R. 1506.
Acquittal or dismissal in criminal prosecution, effect of, on revocation of license of physician, 123 A.L.R. 779.
Statutory power to revoke or suspend license of physician for "unprofessional conduct" as exercisable without antecedent adoption of regulation as to what shall constitute such conduct, 163 A.L.R. 909.
Revocability of license for fraud or other misconduct before or at the time of its issuance, 165 A.L.R. 1138.
Conviction as proof of ground for revocation or suspension of license of physician or surgeon where conviction as such is not an independent cause, 167 A.L.R. 228.
Governing law as to existence or character of offense for which one has been convicted in a federal court or court of another state, as bearing upon his qualification to practice as physician or surgeon, 175 A.L.R. 803.
Professional incompetency as ground for disciplinary measure, 28 A.L.R.3d 487.
Duty of physician or surgeon to warn or instruct nurse or attendant, 63 A.L.R.3d 1020.
Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.
Use, in attorney or physician disciplinary proceeding, of evidence obtained by wrongful police action, 20 A.L.R.4th 546.
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.
Imposition of civil penalties, under state statute, upon medical practitioner for fraud in connection with claims under medicaid, medicare, or similar welfare programs for providing medical services, 32 A.L.R.4th 671.
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.
Recovery for emotional distress resulting from statement of medical practitioner or official, allegedly constituting outrageous conduct, 34 A.L.R.4th 688.
Applicability of statute of limitations or doctrine of laches to proceeding to revoke or suspend license to practice medicine, 51 A.L.R.4th 1147.
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.
Liability of doctor or other health practitioner to third party contracting contagious disease from doctor's patient, 3 A.L.R.5th 370.
Rights as to notice and hearing in proceeding to revoke or suspend license to practice medicine, 10 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.
Denial by hospital of staff privileges or referrals to physician or other health care practitioner as violation of Sherman Act (15 USCS § 1 et seq.), 89 A.L.R. Fed. 419.
70 C.J.S. Physicians, Surgeons, and Other Health-Care Providers §§ 24, 35 to 43, 50, 53 to 57.