448.02 Authority.

(1) License. The board may grant licenses, including various classes of temporary licenses, to practice medicine and surgery, to practice as an administrative physician, to practice perfusion, to practice as an anesthesiologist assistant, and to practice as a physician assistant.

(2) Certificate. The board may certify respiratory care practitioners.

(3) Investigation; hearing; action.

(a) The board shall investigate allegations of unprofessional conduct and negligence in treatment by persons holding a license or certificate granted by the board. An allegation that a physician has violated s. 253.10 (3), 448.30 or 450.13 (2) or has failed to mail or present a medical certification required under s. 69.18 (2) within 21 days after the pronouncement of death of the person who is the subject of the required certificate or that a physician has failed at least 6 times within a 6-month period to mail or present a medical certificate required under s. 69.18 (2) within 6 days after the pronouncement of death of the person who is the subject of the required certificate is an allegation of unprofessional conduct. Information contained in reports filed with the board under s. 49.45 (2) (a) 12r., 50.36 (3) (b), 609.17 or 632.715, or under 42 CFR 1001.2005, shall be investigated by the board. Information contained in a report filed with the board under s. 655.045 (1), as created by 1985 Wisconsin Act 29, which is not a finding of negligence or in a report filed with the board under s. 50.36 (3) (c) may, within the discretion of the board, be used as the basis of an investigation of a person named in the report. The board may require a person holding a license or certificate to undergo and may consider the results of one or more physical, mental or professional competency examinations if the board believes that the results of any such examinations may be useful to the board in conducting its investigation.

(b) After an investigation, if the board finds that there is probable cause to believe that the person is guilty of unprofessional conduct or negligence in treatment, the board shall hold a hearing on such conduct. The board may use any information obtained by the board or the department under s. 655.17 (7) (b), as created by 1985 Wisconsin Act 29, in an investigation or a disciplinary proceeding, including a public disciplinary proceeding, conducted under this subsection and the board may require a person holding a license or certificate to undergo and may consider the results of one or more physical, mental or professional competency examinations if the board believes that the results of any such examinations may be useful to the board in conducting its hearing. A unanimous finding by a panel established under s. 655.02, 1983 stats., or a finding by a court that a physician has acted negligently in treating a patient is conclusive evidence that the physician is guilty of negligence in treatment. A finding that is not a unanimous finding by a panel established under s. 655.02, 1983 stats., that a physician has acted negligently in treating a patient is presumptive evidence that the physician is guilty of negligence in treatment. A certified copy of the findings of fact, conclusions of law and order of the panel or the order of a court is presumptive evidence that the finding of negligence in treatment was made. The board shall render a decision within 90 days after the date on which the hearing is held or, if subsequent proceedings are conducted under s. 227.46 (2), within 90 days after the date on which those proceedings are completed.

(c) Subject to par. (cm), after a disciplinary hearing, the board may, when it determines that a panel established under s. 655.02, 1983 stats., has unanimously found or a court has found that a person has been negligent in treating a patient or when it finds a person guilty of unprofessional conduct or negligence in treatment, do one or more of the following: warn or reprimand that person, or limit, suspend or revoke any license or certificate granted by the board to that person. The board may condition the removal of limitations on a license or certificate or the restoration of a suspended or revoked license or certificate upon obtaining minimum results specified by the board on one or more physical, mental or professional competency examinations if the board believes that obtaining the minimum results is related to correcting one or more of the bases upon which the limitation, suspension or revocation was imposed.

(cm) The board may initiate disciplinary action against a physician no later than one year after initiating an investigation of an allegation involving the death of a patient and no later than 3 years after initiating an investigation of any other allegation, unless the board shows to the satisfaction of the secretary that a specified extension of time is necessary for the board to determine whether a physician is guilty of unprofessional conduct or negligence in treatment. For purposes of this paragraph, the date that a matter is reopened under sub. (8) (c) is considered the date that an investigation of the matter is initiated.

(e) A person whose license or certificate is limited under this subchapter shall be permitted to continue practice upon condition that the person will refrain from engaging in unprofessional conduct; that the person will appear before the board or its officers or agents at such times and places as may be designated by the board from time to time; that the person will fully disclose to the board or its officers or agents the nature of the person's practice and conduct; that the person will fully comply with the limits placed on his or her practice and conduct by the board; that the person will obtain additional training, education or supervision required by the board; and that the person will cooperate with the board.

(f) Unless a suspended license or certificate is revoked during the period of suspension, upon the expiration of the period of suspension the license or certificate shall again become operative and effective. However, the board may require the holder of any such suspended license or certificate to pass the examinations required for the original grant of the license or certificate before allowing such suspended license or certificate again to become operative and effective.

(g) The board shall comply with rules of procedure for the investigation, hearing and action promulgated under ss. 440.03 (1) and 448.40.

(h) Nothing in this subsection prohibits the board, in its discretion, from investigating and conducting disciplinary proceedings on allegations of unprofessional conduct by persons holding a license or certificate granted by the board when the allegations of unprofessional conduct may also constitute allegations of negligence in treatment.

(4) Suspension or limitation pending hearing.

(a) The board may summarily suspend or limit any license or certificate granted by the board when the board has in its possession evidence establishing probable cause to believe that the holder of the license or certificate has violated the provisions of this subchapter and that it is necessary to suspend or limit the license or certificate immediately to protect the public health, safety, or welfare. The holder of the license or certificate shall be granted an opportunity to be heard during the determination of probable cause. The board chair and 2 board members designated by the chair or, if the board chair is not available, the board vice-chair and 2 board members designated by the vice-chair, shall exercise the authority granted by this paragraph to summarily suspend or limit a license or certificate in the manner provided under par. (b).

(b) An order of summary suspension or limitation shall be served upon the holder of the license or certificate in the manner provided in s. 801.11 for service of summons. The order of summary suspension or limitation shall be effective upon service or upon actual notice of the summary suspension or limitation given to the holder of the license or certificate or to the attorney of the license or certificate holder, whichever is sooner. A notice of hearing commencing a disciplinary proceeding shall be issued no more than 10 days following the issuance of the order of summary suspension or limitation. The order of summary suspension or limitation remains in effect until the effective date of a final decision and order in the disciplinary proceeding against the holder or until the order of summary suspension or limitation is discontinued by the board following a hearing to show cause. The holder of the license or certificate shall have the right to request a hearing to show cause why the order of summary suspension or limitation should not be continued and the order of summary suspension or limitation shall notify the holder of the license or certificate of that right. If a hearing to show cause is requested by the holder of the license or certificate, the hearing shall be scheduled on a date within 20 days of receipt by the board of the request for the hearing to show cause.

(5) Voluntary surrender. The holder of any license or certificate granted by the board may voluntarily surrender the license or certificate to the secretary of the board, but the secretary may refuse to accept the surrender if the board has received allegations of unprofessional conduct against the holder of the license or certificate. The board may negotiate stipulations in consideration for accepting the surrender of licenses.

(6) Restoration of license or certificate. The board may restore any license or certificate that has been voluntarily surrendered or revoked under any of the provisions of this subchapter, on such terms and conditions as it may deem appropriate.

(7) Hospital reports.

(a) Within 30 days of receipt of a report under s. 50.36 (3) (c), the board shall notify the licensee, in writing, of the substance of the report. The licensee and the licensee's authorized representative may examine the report and may place into the record a statement, of reasonable length, of the licensee's view of the correctness or relevance of any information in the report. The licensee may institute an action in circuit court to amend or expunge any part of the licensee's record related to the report.

(b) If the board determines that a report submitted under s. 50.36 (3) (c) is without merit or that the licensee has sufficiently improved his or her conduct, the board shall remove the report from the licensee's record. If no report about a licensee is filed under s. 50.36 (3) (c) for 2 consecutive years, the licensee may petition the board to remove any prior reports, which did not result in disciplinary action, from his or her record.

(c) Upon the request of a hospital, the board shall provide the hospital with all information relating to a licensee's loss, reduction or suspension of staff privileges from other hospitals and all information relating to the licensee's being found guilty of unprofessional conduct. In this paragraph, “hospital" has the meaning specified under s. 50.33 (2).

(8) Administrative warning.

(a) After an investigation by the board under sub. (3) (a) or by the department under s. 440.03 (3m) or (5), the board may issue a private and confidential administrative warning to a holder of a license or certificate if the board determines that there is evidence of misconduct by him or her. The board may issue an administrative warning under this paragraph only if the board determines that no further action is warranted because the matter involves minor misconduct and the issuance of an administrative warning adequately protects the public by putting the holder of the license or certificate on notice that any subsequent misconduct may result in disciplinary action. The board shall review the determination if the holder of the license or certificate makes a personal appearance before the board. Following the review, the board may affirm, rescind or modify the administrative warning. A holder of a license or certificate may seek judicial review under ch. 227 of an affirmation or modification of an administrative warning by the board.

(b) An administrative warning issued under par. (a) does not constitute an adjudication of guilt or the imposition of discipline and may not be used as evidence that the holder of a license or certificate is guilty of misconduct.

(c) Notwithstanding par. (b), if the board receives a subsequent allegation of misconduct about a holder of a license or certificate to whom the board issued an administrative warning under par. (a), the board may reopen the matter that resulted in the issuance of the administrative warning or use the administrative warning in any subsequent disciplinary hearing under sub. (3) (b) as evidence that he or she had actual knowledge that the misconduct that was the basis for the administrative warning was contrary to law.

(d) The record that an administrative warning was issued under par. (a) shall be a public record. The contents of an administrative warning shall be private and confidential.

(9) Judicial review. No injunction, temporary injunction, stay, restraining order or other order may be issued by a court in any proceeding for review that suspends or stays an order of the board to discipline a physician under sub. (3) (c) or to suspend or limit a physician's license under sub. (4), except upon application to the court and a determination by the court that all of the following conditions are met:

(a) The board has received notice of the application and the court has provided advance notice to the board of the date of the court hearing on the application.

(b) There is a substantial likelihood that the applicant will prevail in the proceeding for review.

(c) The applicant will suffer irreparable harm if the order is not suspended or stayed.

(d) There is no substantial likelihood of harm to patients of the applicant if the board's order is suspended or stayed.

History: 1975 c. 383, 421; 1977 c. 418; 1981 c. 135, 375, 391; 1983 a. 188 s. 10; 1983 a. 189 s. 329 (5); 1983 a. 253, 538; 1985 a. 29; 1985 a. 146 s. 8; 1985 a. 315, 332, 340; 1987 a. 27, 399, 403; 1989 a. 229; 1991 a. 186; 1993 a. 105, 107; 1995 a. 309; 1997 a. 67, 175, 191, 311; 1999 a. 32, 180; 2001 a. 89; 2009 a. 382; 2011 a. 160; 2013 a. 240; 2017 a. 328.

Reading sub. (3) (b) in conjunction with s. 227.46 (2), a “hearing" for purposes of computing the time period for rendering a decision includes the taking of evidence and all subsequent proceedings. Sweet v. Medical Examining Board, 147 Wis. 2d 539, 433 N.W.2d 614 (Ct. App. 1988).

There is a 5-prong test to guide the Board in determining whether a physician improperly treated a patient. The Board must provide a written decision that separately identifies the 5 elements and discusses the evidence that relates to each element and provides details of why the evidence supports the Board's findings. Gimenez v. State Medical Examining Board, 203 Wis. 2d 349, 552 N.W.2d 863 (Ct. App. 1996), 95-2641.

As used in this section, “negligence in treatment" means medical negligence, as defined by Wisconsin courts, which holds a doctor to the standard of reasonable care. The “reasonable physician" is not synonymous with the “average physician." Dept. of Regulation and Licensing v. Medical Examining Board, 215 Wis. 2d 188, 572 N.W.2d 508 (Ct. App. 1997), 97-0452.

The 5-pronged test of Gimenez does not apply to cases in which fraud and misrepresentation are alleged. Gimenez expressly limits the application of the test to cases where the medical professional is charged with choosing a course of treatment that is dangerous or detrimental to his or her patient or the public. It does not apply to allegations of unprofessional conduct by perpetrating a fraud on a patient in an attempt to obtain compensation. Krahenbuhl v. Wisconsin Dentistry Examining Board, 2006 WI App 73, 292 Wis. 2d 154, 713 N.W.2d 152, 05-1376.

The 90-day direction in sub. (3) (b) for rendering a decision is mandatory. 72 Atty. Gen. 147.

The medical examining board does not deny due process by both investigating and adjudicating a charge of professional misconduct. Withrow v. Larkin, 421 U.S. 35, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975).