38-178. Disciplinary actions; grounds.

Except as otherwise provided in sections 38-1,119 to 38-1,123, a credential to practice a profession may be denied, refused renewal, or have other disciplinary measures taken against it in accordance with section 38-185 or 38-186 on any of the following grounds:

(1) Misrepresentation of material facts in procuring or attempting to procure a credential;

(2) Immoral or dishonorable conduct evidencing unfitness to practice the profession in this state;

(3) Abuse of, dependence on, or active addiction to alcohol, any controlled substance, or any mind-altering substance;

(4) Failure to comply with a treatment program or an aftercare program, including, but not limited to, a program entered into under the Licensee Assistance Program established pursuant to section 38-175;

(5) Conviction of (a) a misdemeanor or felony under Nebraska law or federal law, or (b) a crime in any jurisdiction which, if committed within this state, would have constituted a misdemeanor or felony under Nebraska law and which has a rational connection with the fitness or capacity of the applicant or credential holder to practice the profession;

(6) Practice of the profession (a) fraudulently, (b) beyond its authorized scope, (c) with gross incompetence or gross negligence, or (d) in a pattern of incompetent or negligent conduct;

(7) Practice of the profession while the ability to practice is impaired by alcohol, controlled substances, drugs, mind-altering substances, physical disability, mental disability, or emotional disability;

(8) Physical or mental incapacity to practice the profession as evidenced by a legal judgment or a determination by other lawful means;

(9) Illness, deterioration, or disability that impairs the ability to practice the profession;

(10) Permitting, aiding, or abetting the practice of a profession or the performance of activities requiring a credential by a person not credentialed to do so;

(11) Performing or offering to perform scleral tattooing as defined in section 38-10,172 by a person not credentialed to do so;

(12) Having had his or her credential denied, refused renewal, limited, suspended, revoked, or disciplined in any manner similar to section 38-196 by another state or jurisdiction based upon acts by the applicant or credential holder similar to acts described in this section;

(13) Use of untruthful, deceptive, or misleading statements in advertisements, including failure to comply with section 38-124;

(14) Conviction of fraudulent or misleading advertising or conviction of a violation of the Uniform Deceptive Trade Practices Act;

(15) Distribution of intoxicating liquors, controlled substances, or drugs for any other than lawful purposes;

(16) Violations of the Uniform Credentialing Act or the rules and regulations relating to the particular profession;

(17) Unlawful invasion of the field of practice of any profession regulated by the Uniform Credentialing Act which the credential holder is not credentialed to practice;

(18) Violation of the Uniform Controlled Substances Act or any rules and regulations adopted pursuant to the act;

(19) Failure to file a report required by section 38-1,124, 38-1,125, or 71-552;

(20) Failure to maintain the requirements necessary to obtain a credential;

(21) Violation of an order issued by the department;

(22) Violation of an assurance of compliance entered into under section 38-1,108;

(23) Failure to pay an administrative penalty;

(24) Unprofessional conduct as defined in section 38-179; or

(25) Violation of the Automated Medication Systems Act.

Source

Cross References

Annotations

"Grossly immoral" and "dishonorable" conduct under subdivision (2) of this section contemplates conduct that shows that a person guilty of it either is intellectually or morally incompetent to practice the profession or morally incompetent to practice the profession or has committed an act or acts of a nature likely to jeopardize the interest of the public; it does not authorize revocation for trivial reasons or for a mere breach of the generally accepted ethics of the profession. Poor v. State, 266 Neb. 183, 663 N.W.2d 109 (2003).

Pursuant to subsection (5)(d) of this section (subdivision (6)(d) of section 38-178), a district court is correct in concluding that a record lacks the quantum of evidence necessary to support a reasonable inference that a physician was grossly incompetent in treatment of a patient when: Experts testified that they would have found other procedures preferable, assessed the situation more thoroughly, or acted earlier in the course of treatment; experts agreed that the physician's actions were not contrary to the indications and information he or she had received at the time; and positive assessments of the physician's basic skill level were not contradicted by any evidence in the record. Pursuant to subsection (5)(d) of this section (subdivision (6)(d) of section 38-178), the term "gross incompetence" connotes such an extreme deficiency on the part of a physician in the basic knowledge and skill necessary for diagnosis and treatment that one may reasonably question the physician's ability to practice medicine at the threshold level of professional competence. Langvardt v. Horton, 254 Neb. 878, 581 N.W.2d 60 (1998).

Under subsection (10) of this section (as it existed in 1993), the word "includes" is restricted by the language which specifies the sources referred to. Thus, a violation of standards of the medical profession not defined by the statute or rules and regulations does not define unprofessional conduct for the purposes of the statute. Curry v. State ex rel. Stenberg, 242 Neb. 695, 496 N.W.2d 512 (1993).

Section is permissive, revocation following conviction for a serious criminal act was not abuse of discretion. State ex rel. Meyer v. Eyen, 184 Neb. 848, 172 N.W.2d 617 (1969).

A physician's license may be revoked for unprofessional conduct before conviction in a competent court. Mathews v. Hedlund, 82 Neb. 825, 119 N.W. 17 (1908).

In proceedings to revoke a physician's license on grounds of producing a criminal abortion, trial and conviction of such a charge by a competent court is not a condition precedent to said proceedings. Munk v. Frink, 81 Neb. 631, 116 N.W. 525 (1908), 17 L.R.A.N.S. 439 (1908).

State does not have to prove that a federal felony conviction under subsection (4) of this section (subdivision (5) of section 38-178) is also a violation of Nebraska law. Sedivy v. State ex rel. Stenberg, 5 Neb. App. 745, 567 N.W.2d 784 (1997).

The judiciary will not interfere with executive officers in the performance of duties which are discretionary in their nature or involve the exercise of judgment; there exists no power in the courts to act upon the officer so as to interfere with the exercise of that judgment while the matter is properly before the officer for action. Roseberry v. Wright, 2 Neb. App. 248, 508 N.W.2d 867 (1993).