Wisconsin Administrative Code
Medical Examining Board
Chapter Med 10 - Unprofessional Conduct
Section Med 10.03 - Unprofessional conduct
Universal Citation: WI Admin Code ยง Med 10.03
Current through August 26, 2024
"Unprofessional conduct" includes the following, or aiding or abetting the same:
(1) DISHONESTY AND CHARACTER.
(a) Violating or attempting to
violate ch. 448, Stats., or any provision, condition, or term of a valid rule
or order of the board.
(b)
Knowingly engaging in fraud or misrepresentation or dishonesty in applying, for
or procuring a medical license, by examination for a medical license, or in
connection with applying for or procuring periodic renewal of a medical
license, or in otherwise maintaining such licensure.
(c) Knowingly giving false, fraudulent, or
deceptive testimony while serving as an expert witness.
(d) Employing illegal or unethical business
practices.
(e) Knowingly,
negligently, or recklessly making any false statement, written or oral, in the
practice of medicine and surgery which creates an unacceptable risk of harm to
a patient, the public, or both.
(f)
Engaging in any act of fraud, deceit, or misrepresentation, including acts of
omission to the board or any person acting on the board's behalf.
(g) Obtaining any fee by fraud, deceit, or
misrepresentation.
(h) Directly or
indirectly giving or receiving any fee, commission, rebate, or other
compensation for professional services not actually and personally rendered,
unless allowed by law. This prohibition does not preclude the legal functioning
of lawful professional partnerships, corporations, or associations.
(i) Representing or claiming as true the
appearance that a physician possesses a medical specialty certification by a
board recognized certifying organization, such as the American Board of Medical
Specialties, or the American Osteopathic Association, if it is not
true.
(j) Engaging in uninvited
in-person solicitation of actual or potential patients who, because of their
particular circumstances, may be vulnerable to undue influence.
(k) Engaging in false, misleading, or
deceptive advertising.
(l) Failure
to adequately supervise delegated medical acts performed by licensed or
unlicensed personnel.
(2) DIRECT PATIENT CARE VIOLATIONS.
(a) Practicing
or attempting to practice under any license when unable or unwilling to do so
with reasonable skill and safety. A certified copy of an order issued by a
court of competent jurisdiction finding that a person is mentally incompetent
is conclusive evidence that the physician was, for any period covered by the
order, unable to practice medicine and surgery with reasonable skill and
safety.
(b) Departing from or
failing to conform to the standard of minimally competent medical practice
which creates an unacceptable risk of harm to a patient or the public whether
or not the act or omission resulted in actual harm to any person.
(c) Prescribing, ordering, dispensing,
administering, supplying, selling, giving, or obtaining any prescription
medication in any manner that is inconsistent with the standard of minimal
competence.
(d) Performing or
attempting to perform any surgical or invasive procedure on the wrong patient,
or at the wrong anatomical site, or performing the wrong procedure on any
patient.
(e) Administering,
dispensing, prescribing, supplying, or obtaining a controlled substance as
defined in s. 961.01 (4),
Stats., other than in the course of legitimate professional practice, or as
otherwise permitted by law.
1. Except as
otherwise provided by law, a certified copy of a relevant finding, order, or
judgment by a state or federal court or agency charged with making legal
determinations shall be conclusive evidence of its findings of facts and
conclusions of law.
2. A certified
copy of a finding, order, or judgment demonstrating the entry of a guilty plea,
nolo contendere plea or deferred adjudication, with or without expungement, of
a crime substantially related to the practice of medicine and surgery is
conclusive evidence of a violation of this paragraph.
(f) Engaging in sexually explicit conduct,
sexual contact, exposure, gratification, or other sexual behavior with or in
the presence of a patient, a patient's immediate family, or a person
responsible for the patient's welfare.
1.
Sexual motivation may be determined from the totality of the circumstances and
shall be presumed when the physician has contact with a patient's intimate
parts without legitimate medical justification for doing so.
2. For the purpose of this paragraph, an
adult receiving treatment shall be considered a patient for 2 years after the
termination of professional services.
3. If the person receiving treatment is a
child, the person shall be considered a patient for the purposes of this
paragraph for 2 years after termination of services or for 2 years after the
patient reaches the age of majority, whichever is longer.
(fm)
1. If
a physician who practices in a hospital or works for any other employer fails
to comply with the rules established by their hospital or employer regarding
chaperones or other observers in patient examinations, then the failure to
follow such rules during an exam in which a violation of par. (f) is alleged
may be considered by the board in determining whether the alleged misconduct
occurred.
2. Physicians who are
self-employed or in other practice settings that do not involve hospitals or
employers shall establish written procedures for the use of chaperones or other
observers in patient examinations and shall comply with these procedures once
established.
3. A copy of any rules
and procedures, or summary thereof, regarding the physician's use of chaperones
or other observers shall be made available and accessible to all patients who
are likely to receive a non-emergency examination of the breasts, genitals, or
rectal area.
4. A physician shall
not be found in violation of this section because of the failure of a
third-party to create a policy regarding chaperones, or to allow posting or
notification of any policy regarding chaperones.
(g) Engaging in any sexual contact or conduct
with or in the presence of a patient or a former patient who lacks the ability
to consent for any reason, including medication or psychological or cognitive
disability.
(h) Engaging in
repeated or significant disruptive behavior or 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.
(i) Knowingly,
recklessly, or negligently divulging a privileged communication or other
confidential patient health care information except as required or permitted by
state or federal law.
(j)
Performing an act constituting the practice of medicine and surgery without
required informed consent under s.
448.30, Stats.
(k) Aiding or abetting the practice of
medicine by an unlicensed, incompetent, or impaired person or allowing another
person or organization to use his or her license to practice medicine. This
provision does not prohibit a Wisconsin physician or any other practitioner
subject to this chapter from providing outpatient services ordered by a
physician licensed in another state, if the physician who wrote the order saw
the patient in the state in which the physician is licensed and the physician
who wrote the order remains responsible for the patient.
(l) Violating the practice standards under s.
Cos 2.03
to practice medicine and surgery while serving as a medical director or
physician who delegates and supervises services performed by non-physicians,
including aiding or abetting any person's violation of s.
Cos 2.03.
(m)
Prescribing a controlled substance to oneself as described in s.
961.38 (5),
Stats.
(n) Practicing medicine in
another state or jurisdiction without appropriate licensure. A physician has
not violated this paragraph if, after issuing an order for services that
complies with the laws of Wisconsin, his or her patient requests that the
services ordered be provided in another state or jurisdiction.
(o) Patient abandonment occurs when a
physician without reasonable justification unilaterally withdraws from a
physician-patient relationship by discontinuing a patient's treatment regimen
when further treatment is medically indicated and any of the following occur:
1. The physician fails to give the patient at
least 30 days notice in advance of the date on which the physician's withdrawal
becomes effective.
2. The physician
fails to allow for patient access to or transfer of the patient's health record
as required by law.
3. The
physician fails to provide for continuity of prescription medications between
the notice of intent to withdraw from the physician-patient relationship and
the date on which the physician-patient relationship ends, if the prescription
medications are necessary to avoid unacceptable risk of harm.
4. The physician fails to provide for
emergency care during the period between the notice of intent to withdraw from
the physician-patient relationship and the date on which the physician-patient
relationship ends. Nothing in this section shall be interpreted to impose upon
the physician a greater duty to provide emergency care to a patient than
otherwise required by law.
(3) LAW VIOLATIONS, ADVERSE ACTION, AND REQUIRED REPORTS TO THE BOARD.
(a) Failing,
within 30 days, to report to the board any final adverse action taken against
the licensee's authority to practice medicine and surgery by another licensing
jurisdiction concerned with the practice of medicine and surgery.
(b) Failing, within 30 days, to report to the
board any adverse action taken by the Drug Enforcement Administration against
the licensee's authority to prescribe controlled substances.
(c) Having any credential pertaining to the
practice of medicine and surgery or any act constituting the practice of
medicine and surgery become subject to adverse determination by any agency of
this or another state, or by any federal agency or authority.
(d) Failing to comply with state and federal
laws regarding access to patient health care records.
(e) Failing to establish and maintain timely
patient health care records, including records of prescription orders, under s.
Med 21.03, or
as otherwise required by law.
(f)
Violating the duty to report under s.
448.115, Stats.
(g) After a request by the board, failing to
cooperate in a timely manner with the board's investigation of a complaint
filed against a license holder. There is a rebuttable presumption that a
credential holder who takes longer that 30 days to respond to a request of the
board has not acted in a timely manner.
(h) Failing, within 48 hours of the entry of
judgment of conviction of any crime, to provide notice to the department of
safety and professional services as required under s.
SPS 4.09 (2), or failing, within 30 days
of conviction of any crime, to provide the board with certified copies of the
criminal complaint and judgment of conviction.
(i) Except as provided in par. (j), a
violation or conviction of any laws or rules of this state, or of any other
state, or any federal law or regulation that is substantially related to the
practice of medicine and surgery.
1. Except
as otherwise provided by law, a certified copy of a relevant decision by a
state or federal court or agency charged with determining whether a person has
violated a law or rule relevant to this paragraph is conclusive evidence of
findings of facts and conclusions of law contained therein.
2. The department has the burden of proving
that the circumstances of the crime are substantially related to the practice
of medicine and surgery.
(j) Violating or being convicted of any of
the conduct listed in Table 10.03, any successor statute criminalizing the same
conduct, or if in another jurisdiction, any act which, if committed in
Wisconsin would constitute a violation of any statute listed in Table 10.03:
Table 10.03
Violations or Convictions Cited by Statute
|
Statute Section |
Description of Violation or Conviction |
|
940.01 |
First degree intentional homicide |
|
940.02 |
First degree reckless homicide |
|
940.03 |
Felony murder |
|
940.05 |
Second degree intentional homicide |
|
940.12 |
Assisting suicide |
|
940.19 (2), (4), (5), or (6) |
Battery, substantial battery, or aggravated battery |
|
940.22 (2) or (3) |
Sexual exploitation by therapist; duty to report |
|
940.225(1), (2), or (3) |
First, second, or third degree sexual assault |
|
940.285 (2) |
Abuse of individuals at risk |
|
940.29 |
Abuse of residents of penal facilities |
|
940.295 |
Abuse and neglect of patients and residents |
|
948.02(1) or (2) |
First and second degree sexual assault of a child |
|
948.03 (2) |
Physical abuse of a child, intentional causation of bodily harm |
|
948.05 |
Sexual exploitation of a child |
|
948.051 |
Trafficking of a child |
|
948.055 |
Causing a child to view or listen to sexual activity |
|
948.06 |
Incest with a child |
|
948.07 |
Child enticement |
|
948.08 |
Soliciting a child for prostitution |
|
948.085 |
Sexual assault of a child placed in substitute care |
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