§ 40-47-117 — Formal complaint; service; answer; formal hearing by panel; filing of report with board; board action; notice.

(A) A formal complaint must be issued by the Office of General Counsel after investigation upon a finding by one or more physicians designated by the board that probable cause exists to believe that professional misconduct may have been committed. Formal complaints must be captioned "In the Matter of (name of respondent)" and signed by an attorney assigned or designated by the Office of General Counsel. The department shall cause to be sent to the respondent or counsel, if any, by certified mail a formal complaint setting forth in summary fashion the alleged misconduct together with a notice requiring that the respondent file with the department an answer to the formal complaint and to serve a copy of the answer upon the attorney assigned or designated by the Office of General Counsel within thirty days after the notice and formal complaint are mailed. The notice mailed to the respondent must state that if the respondent fails to answer, judgment by default may be taken against the respondent. The answer must be signed by the respondent or counsel or by both and may be verified. If no answer has been filed by the respondent or counsel after thirty calendar days from the date of receipt by the respondent of the notice and formal complaint and no extension has been granted, the allegations of the formal complaint must be considered admitted, and the board may proceed and render a default judgment against the respondent. (B)(1) After the respondent's answer has been filed, or the time within which the respondent was required to file the answer has expired, a formal hearing into the matter must be held by a panel of one lay member and not more than three physician members of the Medical Disciplinary Commission, none of which may reside or have a major part of their practice in the same county as the respondent. If the facts are not in dispute, the matter may be presented directly to the board for final decision without need for a panel hearing. The Office of General Counsel or its designee shall prepare and present the matter before the panel and board, as appropriate. Hearings must be held by the panel or board upon thirty days notice to the Office of General Counsel and the respondent or counsel. (2) If the panel finds that the charges in the formal complaint are not supported by the evidence or do not merit taking disciplinary action, the panel shall make a certified report of the proceedings before it, including its findings of fact and conclusions of law, and shall file the report with the department. (3) If the panel finds and determines that the respondent is guilty of misconduct, the panel shall submit a certified report of its proceedings, including its recommendation as to findings of fact, conclusions of law, and mitigating and aggravating circumstances for consideration by the board and shall file this report with the department together with a transcript of the testimony taken and the exhibits put into evidence before the panel. The panel may not recommend to the board whether a sanction should or should not be imposed. (4) A copy of the panel's report must be served upon the Office of General Counsel and the respondent or counsel. (5) In the event of a tie vote by the panel, the matter must be presented to the board for final decision upon separate reports submitted by each side of the tie vote. (C) When the panel has filed its report, the department shall notify the respondent or counsel, if any, of the time and place at which the board will consider the report for the purpose of determining its action on the report, the notice must be given not less than thirty days before the meeting. The respondent and the Office of General Counsel have the right to appear before the board and to submit briefs and be heard in oral argument in opposition to or in support of the recommendations of the panel. (D) Upon consideration of the panel's report and of the showing made to the board, the board may: (1) refer the matter back to a panel for hearing; (2) order a further hearing before the board; or (3) proceed upon the certified report of the prior proceedings before the panel. (E) Upon its final review, the board either may dismiss the complaint or find that the respondent is guilty of misconduct. If the formal complaint is dismissed, the department shall notify the respondent or counsel, if any, and the Office of General Counsel. (F) If the board determines that the respondent is guilty of misconduct meriting sanction, the board shall issue a final order, including its findings of fact, conclusions of law, and decision of sanction, and shall file the report with the department, which promptly shall serve the respondent or counsel, if any, and the Office of General Counsel with a copy of the board's final order. (G) Service of notices conclusively must be presumed thirty days after mailing by first class or certified mail to the respondent to the last address provided to the board by the respondent. (H) When provision is made for the service of any notice, order, report, or other paper or copy of these upon any person in connection with any proceeding, service may be made upon counsel of record for the person, either personally or by first class or certified mail. (I) Service of notice upon a respondent who cannot be found at the last known address provided by the respondent may be made by leaving with the director, or his designee, a copy of the notice and any accompanying documents along with proof of attempted service at the last known address. The board may set aside and reopen a proceeding upon satisfactory showing by the respondent of good cause as to why the respondent did not receive service of the notice.

Legislative History

HISTORY: 2006 Act No. 385, SECTION 1.