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Indicates Matter Stricken
Indicates New Matter
AMENDED
May 12, 2005
H. 3108
Introduced by Reps. M.A. Pitts, Barfield, Taylor, Mahaffey, Duncan, Umphlett and Whipper
S. Printed 5/12/05--S. [SEC 5/16/05 10:30 AM]
Read the first time March 3, 2005.
TO AMEND SECTION 40-47-211, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE MEDICAL DISCIPLINARY COMMISSION OF THE STATE BOARD OF MEDICAL EXAMINERS, SO AS TO ADD TWO LAY MEMBERS FROM EACH CONGRESSIONAL DISTRICT TO BE ELECTED BY THE GENERAL ASSEMBLY, AND TO PROVIDE THAT EACH MEDICAL DISCIPLINARY COMMISSION PANEL FROM A CONGRESSIONAL DISTRICT HEARING AND INVESTIGATING COMPLAINTS AGAINST A PARTICULAR PHYSICIAN OR PHYSICIANS MUST CONTAIN AT LEAST ONE LAY MEMBER OF THE COMMISSION FROM THAT CONGRESSIONAL DISTRICT.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 40-47-211 of the 1976 Code, as last amended by an act bearing ratification no. 33, is further amended to read:
"Section 40-47-211. (A) There is created the Medical Disciplinary Commission of the State Board of Medical Examiners to be composed of forty-eight members. Of these, thirty-six must be licensed physicians practicing their profession. Five physician commissioners must be elected from each of the six congressional districts, and six physician members of the commission must be elected at large from across the State. The board shall conduct the elections, and the elections for the physician members shall provide for participation by any physician currently licensed and actively practicing medicine in South Carolina and residing in the congressional district in which the election is held. At-large physician members must be currently licensed and actively practicing medicine in South Carolina and must reside within the State at the time of election and throughout their terms. One physician commissioner initially elected from each district shall serve for a term of one year and until his successor is elected and qualifies, one physician commissioner initially elected from each district shall serve for a term of two years and until his successor is elected and qualifies, and one physician commissioner initially elected from each district shall serve for a term of three years and until his successor is elected and qualifies. The successors of the initial physician commissioners shall serve for terms of three years or until their successors are elected and qualify. The members of the commission are limited to three terms. The members appointed to the board may not simultaneously serve as a commissioner. In case of any vacancy by way of death, resignation, or otherwise, the board shall appoint a successor to serve for the unexpired term. Where justice, fairness, or other circumstances so require, the board may appoint past commissioners to hear complaints in individual cases.
(B) Twelve members of the commission must be lay commissioners who each must have, at a minimum, a baccalaureate degree or the equivalent, and have no ascertainable ties to the health care industry higher, must not be employed in, or have a member of their immediate family employed in, a health care related field, and must not have been convicted of a felony or a crime of moral turpitude. Two lay commissioners must be appointed by the Governor from each of the six congressional districts, with the advice and consent of the Senate. Each lay commissioner must be a registered voter and reside in the congressional district he represents throughout his term. Each lay commissioner initially elected from each district shall serve for a term of three years and until his successor is elected and qualifies. The lay commissioners are limited to three consecutive terms. Vacancies must be filled in the manner of the original appointment for the remainder of the unexpired term. The Governor may appoint a lay commissioner to serve a full term; however, a lay commissioner may not serve more than three terms.
(C) The commission is empowered to investigate and hear those complaints against physicians (medical and osteopathic) filed with the board pursuant to Section 40-47-200. The hearing must be conducted in accordance with Act 176 of 1977 (Administrative Procedures Act) and with regulations promulgated by the board and must be before a panel composed of at least three commissioners designated by the board, and one of those three commissioners must be a lay member. The panel is empowered to hear the matters complained of and to make findings of fact and recommendations as to disposition of those matters to the board. The panel shall make a certified report of the proceedings before it, including its findings of fact, conclusions, and recommendations, which must be filed together with a transcript of the testimony taken and exhibits as may have been in evidence before it with the administrator of the board, and a copy of the report must be delivered to the office of general counsel and the licensee or his counsel."
SECTION 2. Section 40-47-213 of the 1976 Code is amended to read:
"Section 40-47-213. (A)(1) No A person connected with any complaint, investigation, or other proceeding before the board, including, but not limited to, any witness, counsel, counsel's secretary staff, board member, board employee, court reporter, or investigator, may not mention the existence of the complaint, investigation, or other proceeding or disclose any information pertaining to the complaint, investigation, or other proceeding, tending to identify the initial complainant or a witness, or discuss any testimony or other evidence in the complaint, investigation, or other proceeding, except as otherwise provided in this section.
(2) Information may be disclosed to persons involved and having a direct interest in the complaint, investigation, or other proceeding, and then only to the extent necessary for the proper disposition of the complaint, investigation, or other proceeding. The name of the initial complainant must be provided to the licensee who is the subject of the complaint, investigation, or proceeding unless the board, hearing officer, or panel determines there is good cause to withhold that information.
(3) However, whenever When the board receives information in any complaint, investigation, or other proceeding before it indicating a violation of state or federal law, the board may provide that information, to the extent the board considers necessary, to the appropriate state or federal law enforcement agency or regulatory body.
(B) When a formal complaint is made regarding allegations of misconduct, the formal complaint and an answer must become available for public inspection and copying ten days after the filing of the answer or, if no answer is filed, ten days after the expiration of the time to answer. Once the formal complaint becomes available for public inspection and copying, subsequent records and proceedings relating to the misconduct allegations must be open to the public except as otherwise provided in this section.
(1) Patient records and identities shall remain confidential unless the patient or legal representative of the patient consents in writing to the release of the records.
(2) If allegations of incapacity of licensee due to physical or mental causes are raised in the complaint or answer, all records, information, and proceedings, relating to those allegations of incapacity must remain confidential; provided, however, any order relating to the licensee's authorization to practice must be made public, but the order must not disclose the nature of the incapacity.
(C) Once a proceeding becomes public as provided in this section, there is a presumption that any hearing, other proceeding, or record must remain public unless a party to a proceeding makes a showing on the record before the board, hearing officer, or panel that closure of the hearing or the record, in whole or in part, is essential to protect patients, witnesses, or the respondent from unreasonable disclosure of personal or confidential information. Public notice must be given of the request or motion to close any portion of a hearing or record, and the board, hearing officer, or panel shall provide an opportunity for a person opposing the closure to be heard prior to the decision on closure being made.
(D) Subject to the right of public access and utilizing the procedure regarding closure described in this section, a witness in a proceeding or a patient whose care is at issue in a proceeding may petition the board, hearing officer, or panel for an order to close the hearing or record, in whole or part, to protect the witness or patient from unreasonable disclosure of personal or confidential information; provided, however, the identity of a minor or sexual boundary victim must remain confidential without a motion being made.
(E) Upon a finding on the record that the health or safety or the personal privacy of a witness or patient would be put at risk unreasonably by the public disclosure of identifying information or of other personal information, the board, hearing officer, or panel may issue an order to protect the witness or patient from the harm shown to be probable from public disclosure.
Nothing contained in this section may be construed so as to prevent the board from making public a copy of its final order in any proceeding as authorized or required by law."
SECTION 3. This act takes effect upon approval by the Governor.
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