CHAPTER 90.
Medicine and Allied Occupations.
ARTICLE 1.
Practice of Medicine.
§90-1. North Carolina Medical Society incorporated.
The association of regularly graduated physicians, calling
themselves the State Medical Society, is hereby declared to be a
body politic and corporate, to be known and distinguished by the
name of The Medical Society of the State of North Carolina. The
name of the society is now the North Carolina Medical Society.
(1858-9, c. 258, s. 1; Code, s. 3121; Rev., s. 4491; C.S., s.
6605; 1981, c. 573, s. 1.)
§ 90-2. Medical Board.
(a) In order to properly regulate the practice of medicine
and surgery for the benefit and protection of the people of North
Carolina, there is established the North Carolina Medical Board.
The Board shall consist of 12 members.
(1) Seven of the members shall be duly licensed
physicians elected and nominated to the Governor by the North
Carolina Medical Society.
(2) Of the remaining five members, all to be
appointed by the Governor, at least three shall be public members
and at least one shall be a physician assistant as defined in
G.S. 90-18.1 or a nurse practitioner as defined in G.S. 90-18.2.
A public member shall not be a health care provider nor the
spouse of a health care provider. For purposes of board
membership, "health care provider" means any licensed health care
professional and any agent or employee of any health care
institution, health care insurer, health care professional
school, or a member of any allied health profession. For purposes
of this section, a person enrolled in a program to prepare him to
be a licensed health care professional or an allied health
professional shall be deemed a health care provider. For purposes
of this section, any person with significant financial interest
in a health service or profession is not a public member.
(b) No member appointed to the Board on or after November
1, 1981, shall serve more than two complete consecutive three-
year terms, except that each member shall serve until his
successor is chosen and qualifies.
(c) In order to establish regularly overlapping terms, the
terms of office of the members shall expire as follows: two on
October 31, 1993; four on October 31, 1994; four on October 31,
1995; and two on October 31, 1996.
(d) Any member of the Board may be removed from office by
the Governor for good cause shown. Any vacancy in the physician
membership of the Board shall be filled for the period of the
unexpired term by the Governor from a list of physicians
submitted by the North Carolina Medical Society Executive
Council. Any vacancy in the public, physician assistant, or nurse
practitioner membership of the Board shall be filled by the
Governor for the unexpired term.
(e) The North Carolina Medical Board shall have the power
to acquire, hold, rent, encumber, alienate, and otherwise deal
with real property in the same manner as any private person or
corporation, subject only to approval of the Governor and the
Council of State as to the acquisition, rental, encumbering,
leasing, and sale of real property. Collateral pledged by the
Board for an encumbrance is limited to the assets, income, and
revenues of the Board. (1858-9, c. 258, ss. 3, 4; Code, s. 3123;
Rev., s. 4492; C.S., s. 6606; Ex. Sess. 1921, c. 44, s. 1; 1981,
c. 573, s. 2; 1991 (Reg. Sess., 1992), c. 787, s. 1; 1993, c.
241, s. 2; 1995, c. 94, s. 1; c. 405, s. 1; 1997-511, s. 1.)
§90-3. Medical Society nominates Board.
The Governor shall appoint as physician members of the Board
physicians elected and nominated by the North Carolina Medical
Society. (1858-9, c. 258, s. 9; Code, s. 3126; Rev., s. 4493;
C.S., s. 6607; 1981, c. 573, s. 3.)
§ 90-4. Board elects officers; quorum.
The North Carolina Medical Board is authorized to elect all
officers and adopt all bylaws as may be necessary. A majority of
the membership of the Board shall constitute a quorum for the
transaction of business. (1858-9, c. 258, s. 11; Code, s. 3128;
Rev., s. 4494; C.S., s. 6608; 1981, c. 573, s. 4; 1995, c. 94, s.
7.)
§ 90-5. Meetings of Board.
The North Carolina Medical Board shall assemble once in
every year in the City of Raleigh, and shall remain in session
from day to day until all applicants who may present themselves
for examination within the first two days of this meeting have
been examined and disposed of; other meetings in each year may be
held at some suitable point in the State if deemed advisable.
(Rev., s. 4495; 1915, c. 220, s. 1; C.S., s. 6609; 1935, c. 363;
1981, c. 573, s. 5; 1995, c. 94, s. 8.)
§ 90-6. Regulations governing applicants for
license, examinations, etc.; appointment of subcommittee.
The North Carolina Medical Board is empowered to prescribe
such regulations as it may deem proper, governing applicants for
license, admission to examinations, the conduct of applicants
during examinations, and the conduct of examinations proper.
The North Carolina Medical Board shall appoint and maintain
a subcommittee to work jointly with a subcommittee of the Board
of Nursing to develop rules and regulations to govern the
performance of medical acts by registered nurses, including the
determination of reasonable fees to accompany an application for
approval not to exceed one hundred dollars ($100.00) and for
renewal of approval not to exceed fifty dollars ($50.00). The fee
for reactivation of an inactive incomplete application shall be
five dollars ($5.00). Rules and regulations developed by this
subcommittee from time to time shall govern the performance of
medical acts by registered nurses and shall become effective when
adopted by both the North Carolina Medical Board and the Board of
Nursing. The North Carolina Medical Board shall have
responsibility for securing compliance with these regulations.
(C.S., s. 6610; 1921, c. 47, s. 5; Ex. Sess. 1921, c. 44, s. 2;
1973, c. 92, s. 2; 1981, c. 665, s. 1; 1983, c. 53; 1995, c. 94,
s. 9; c. 405, s. 2.)
§ 90-7. Bond of secretary.
The secretary of the North Carolina Medical Board shall give
bond with good surety, to the president of the Board, for the
safekeeping and proper payment of all moneys that may come into
his hands. (1858-9, c. 258, s. 17; Code, s. 3134; Rev., s. 4497;
C.S., s. 6611; 1995, c. 94, s. 10.)
§ 90-8. Officers may administer oaths, and subpoena
witnesses, records and other materials.
The president and secretary of the Board may administer
oaths to all persons appearing before it as the Board may deem
necessary to perform its duties, and may summon and issue
subpoenas for the appearance of any witnesses deemed necessary to
testify concerning any matter to be heard before or inquired into
by the Board. The Board may order that any patient records,
documents or other material concerning any matter to be heard
before or inquired into by the Board shall be produced before the
Board or made available for inspection, notwithstanding any other
provisions of law providing for the application of any physician-
patient privilege with respect to such records, documents or
other material. All records, documents, or other material
compiled by the Board are subject to the provisions of G.S. 90-
16. Notwithstanding the provisions of G.S. 90-16, in any
proceeding before the Board, in any record of any hearing before
the Board, and in the notice of charges against any licensee, the
Board shall withhold from public disclosure the identity of a
patient including information relating to dates and places of
treatment, or any other information that would tend to identify
the patient, unless the patient or the representative of the
patient expressly consents to the disclosure. Upon written
request, the Board shall revoke a subpoena if, upon a hearing, it
finds that the evidence the production of which is required does
not relate to a matter in issue, or if the subpoena does not
describe with sufficient particularity the evidence the
production of which is required, or if for any other reason in
law the subpoena is invalid. (1913, c. 20, s. 7; C.S., s. 6612;
Ex. Sess. 1921, c. 44, s. 3; 1953, c. 1248, s. 1; 1975, c. 690,
s. 1; 1979, c. 107, s. 8; 1987, c. 859, s. 5; 1991, c. 348.)
§ 90-9. Examination for license; scope;
conditions and prerequisites.
It is the duty of the North Carolina Medical Board to
examine for license to practice medicine or surgery, or any of
the branches thereof, every applicant who complies with the
following provisions: the applicant shall, before admittance to
examination, satisfy the Board of possession of academic
education equal to the entrance requirements of the University of
North Carolina, or furnish a certificate from the superintendent
of public instruction of the county that the applicant has passed
an examination upon literary attainments to meet the requirements
of entrance in the regular course of the State University. The
applicant shall exhibit a diploma or furnish satisfactory proof
of graduation from a medical college or an osteopathic college
approved by the American Osteopathic Association at the time of
graduation, dated from January 1, 1960, to the present, and whose
medical and osteopathic schools shall require an attendance of
not less than four years or for a lesser period of time approved
by the Board, and supply these facilities for clinical and
scientific instruction as meet the approval of the Board. An
applicant shall have graduated from a medical college approved by
the Liaison Commission on Medical Education or osteopathic
college that has been approved by the American Osteopathic
Association; or, if graduated from any other medical or
osteopathic college, the applicant shall be enrolled in a
graduate medical education and training program in North Carolina
that has been approved by the Board. An applicant who has
graduated from a medical college not approved by the Liaison
Commission on Medical Education or osteopathic college that has
not been approved by the American Osteopathic Association and who
has not enrolled in a graduate medical education and training
program in North Carolina which has been approved by the Board
shall satisfy the Board that the applicant has successfully
completed three years of graduate medical education in a training
program approved by the Board. No applicant from a medical or
osteopathic college that has been disapproved by the Board is
eligible to take the examination.
The examination shall cover the branches of medical science
and subjects which the Board considers necessary to determine
competence to practice medicine. The Board may divide the
examination into parts or components.
The Board shall grant the applicant a license authorizing
the applicant to practice medicine in any of its branches if the
Board determines that the applicant has successfully passed the
examination, is of good moral character, and is:
(1) a graduate of a medical college approved by the
Liaison Commission on Medical Education or an osteopathic college
approved by the American Osteopathic Association and has
successfully completed one year of training in a medical
education program approved by the Board after graduation from
medical school;
(2) a graduate of a medical college approved by the
Liaison Commission on Medical Education or an osteopathic college
approved by the American Osteopathic Association, is a dentist
licensed to practice dentistry under Article 2 of Chapter 90 of
the General Statutes, and has been certified by the American
Board of Oral and Maxillofacial Surgery after having completed a
residency in an Oral and Maxillofacial Surgery Residency Program
approved by the Board before completion of medical school; or
(3) a graduate of a medical college that has not
been approved by the Liaison Commission on Medical Education or
an osteopathic college that has not been approved by the American
Osteopathic Association and has successfully completed three
years of training in a medical education program approved by the
Board after graduation from medical school.
Applicants shall be examined by number only; names and other
identifying information shall not appear on examination papers.
(Rev., s. 4498; 1913, c. 20, ss. 2, 3, 6; C.S., s. 6613; 1921, c.
47, s. 1; 1969, c. 612, s. 1; c. 929, s. 1; 1971, c. 1150, s. 1;
1977, c. 838, s. 1; 1981, c. 573, s. 6; 1985, c. 739, ss. 1-3;
1993, c. 190, s. 1; 1995, c. 94, s. 11.)
§90-10. Provision in lieu of examination.
In lieu of the above examination, the Board may grant a
license to an applicant who is found to have passed the
examination given by the National Board of Medical Examiners, or
who has passed such other examination which the Board deems to be
equivalent to the examination given by the Board, provided the
applicant meets the other qualifications set forth in this
Article. (C.S., s. 6614; 1921, c. 41, s. 2; Ex. Sess. 1921, c.
44, s. 4; 1969, c. 612, s. 2; c. 929, s. 2; 1971, c. 1150, s. 2;
1975, c. 690, s. 2.)
§ 90-11. Qualifications of applicant for
license.
Every applicant for a license to practice medicine or to
perform medical acts, tasks, and functions as a physician
assistant in the State shall satisfy the North Carolina Medical
Board that the applicant is of good moral character and meets the
other qualifications for the issuance of a license before any
such license is granted by the Board to the applicant. (C.S., s.
6615; 1921, c. 47, s. 3; Ex. Sess. 1921, c. 44, s. 5; 1971, c.
1150, s. 3; 1981, c. 573, s. 7; 1995, c. 94, s. 12; 1997-511, s.
2.)
§ 90-12. Limited license; limited volunteer
license.
(a) The Board may, whenever in its opinion the conditions
of the locality where the applicant resides are such as to render
it advisable, make any modifications of the requirements of G.S.
90-9, 90-10, and 90-11 as in its judgment the interests of the
people living in that locality may demand, and may issue to the
applicant a special license, to be entitled a "Limited License,"
authorizing the holder of the limited license to practice
medicine and surgery within the limits only of the districts
specifically described therein. A resident's training license
shall expire at the time its holder ceases to be a resident in
the training program or obtains any other license to practice
medicine issued by the Board. The holder of the limited license
practicing medicine or surgery beyond the boundaries of the
districts as laid down in said license shall be guilty of a Class
3 misdemeanor, and upon conviction shall only be fined not less
than twenty-five dollars ($25.00) nor more than fifty dollars
($50.00) for each and every offense; and the Board may revoke the
limited license, in its discretion, after due notice.
(b) As used in subsection (a) of this section:
(1) "Limited license" includes a resident's
training license.
(2) "Resident training license" means a license to
practice in a medical education and training program, approved by
the Board, for the purpose of education or training.
(c) The Board shall issue to an applicant a special license
to be entitled a "Limited Volunteer License," authorizing the
holder of the limited license to practice medicine and surgery
only at clinics which specialize in the treatment of indigent
patients. The holder of a limited license issued pursuant to this
subsection may not receive compensation for services rendered at
clinics specializing in the care of indigent patients. The Board
shall issue a limited license under this subsection to an
applicant who:
(1) Has a license to practice medicine and surgery
in another state;
(2) Produces a letter from the state of licensure
indicating the applicant is in good standing; and
(3) Is authorized to treat personnel enlisted in
the United States armed services or veterans.
The Board shall issue a limited license under this subsection
within 30 days after an applicant provides the Board with
information satisfying the requirements of this subsection.
The holder of a limited license issued pursuant to this
subsection who practices medicine or surgery at places other than
clinics which specialize in the treatment of indigent patients
shall be guilty of a Class 3 misdemeanor and, upon conviction,
shall only be fined not less than twenty-five dollars ($25.00)
nor more than fifty dollars ($50.00) for each and every offense;
and the Board may revoke the limited license, in its discretion,
after due notice. (1909, c. 218, s. 1; C.S., s. 6616; 1967, c.
691, s. 42; 1981, c. 573, s. 8; 1993, c. 539, s. 614; 1994, Ex.
Sess., c. 24, s. 14(c); 1995, c. 405, s. 3; 1995 (Reg. Sess.,
1996), c. 634, s. 2.)
§ 90-12.1. Physician assistant limited
volunteer license.
The Board shall issue a limited volunteer license which
shall authorize a physician assistant to perform medical acts,
tasks, and functions without payment or other compensation if the
physician assistant meets one of the following:
(1) Holds a current license or registration in
another state and submits proof of this status to the Board.
(2) Holds a current license in this State and is
not currently employed as a physician assistant.
(3) Is a member of the United States armed services
or is employed by the Veterans' Administration or another federal
agency. (1997-511, s. 3.)
§ 90-13. When license without examination
allowed.
The North Carolina Medical Board shall in their discretion
issue a license to any applicant to practice medicine and surgery
in this State without examination if said applicant exhibits a
diploma or satisfactory proof of graduation from a medical or
osteopathic college, approved as provided in G.S. 90-9 and
requiring an attendance of not less than four years or for such
lesser period of time approved by the Board, and a license issued
to him to practice medicine and surgery by the Board of Medical
Examiners of another state, and has successfully completed one
year of training after his graduation from medical college in a
medical education and training program approved by the Board, in
which program the Board may permit him to practice medicine. An
applicant for licensing under this section who was graduated from
a medical college not approved by the Liaison Commission on
Medical Education or osteopathic college that has not been
approved by the American Osteopathic Association shall have
successfully completed three years of training in a medical
education and training program approved by the Board after
graduation. The Board may grant a license under this section for
any period of time and with any conditions it deems appropriate.
No license may be granted to any applicant who was graduated from
a medical or osteopathic college which has been disapproved by
the Board. (1907, c. 890; 1913, c. 20, s. 3; C.S., s. 6617; 1969,
c. 612, s. 3; 1971, c. 1150, s. 4; 1975, c. 690, s. 3; 1977, c.
838, s. 2; 1985, c. 739, s. 4; 1995, c. 94, s. 13.)
§ 90-14. Revocation, suspension, annulment or
denial of license.
(a) The Board shall have the power to deny, annul, suspend,
or revoke a license, or other authority to practice medicine in
this State, issued by the Board to any person who has been found
by the Board to have committed any of the following acts or
conduct, or for any of the following reasons:
(1) Immoral or dishonorable conduct.
(2) Producing or attempting to produce an abortion
contrary to law.
(3) Made false statements or representations to the
Board, or who has willfully concealed from the Board material
information in connection with an application for a license.
(4) Repealed by Session Laws 1977, c. 838, s. 3.
(5) Being unable to practice medicine with
reasonable skill and safety to patients by reason of illness,
drunkenness, excessive use of alcohol, drugs, chemicals, or any
other type of material or by reason of any physical or mental
abnormality. The Board is empowered and authorized to require a
physician licensed by it to submit to a mental or physical
examination by physicians designated by the Board before or after
charges may be presented against the physician, and the results
of the examination shall be admissible in evidence in a hearing
before the Board.
(6) Unprofessional conduct, including, but not
limited to, departure from, or the failure to conform to, the
standards of acceptable and prevailing medical practice, or the
ethics of the medical profession, irrespective of whether or not
a patient is injured thereby, or the committing of any act
contrary to honesty, justice, or good morals, whether the same is
committed in the course of the physician's practice or otherwise,
and whether committed within or without North Carolina. The Board
shall not revoke the license of or deny a license to a person
solely because of that person's practice of a therapy that is
experimental, nontraditional, or that departs from acceptable and
prevailing medical practices unless, by competent evidence, the
Board can establish that the treatment has a safety risk greater
than the prevailing treatment or that the treatment is generally
not effective.
(7) Conviction in any court of a crime involving
moral turpitude, or the violation of a law involving the practice
of medicine, or a conviction of a felony; provided that a felony
conviction shall be treated as provided in subsection (c) of this
section.
(8) By false representations has obtained or
attempted to obtain practice, money or anything of value.
(9) Has advertised or publicly professed to treat
human ailments under a system or school of treatment or practice
other than that for which the physician has been educated.
(10) Adjudication of mental incompetency, which
shall automatically suspend a license unless the Board orders
otherwise.
(11) Lack of professional competence to practice
medicine with a reasonable degree of skill and safety for
patients. In this connection the Board may consider repeated acts
of a physician indicating the physician's failure to properly
treat a patient. The Board may, upon reasonable grounds, require
a physician to submit to inquiries or examinations, written or
oral, by members of the Board or by other physicians licensed to
practice medicine in this State, as the Board deems necessary to
determine the professional qualifications of such licensee.
(12) Promotion of the sale of drugs, devices,
appliances or goods for a patient, or providing services to a
patient, in such a manner as to exploit the patient, and upon a
finding of the exploitation, the Board may order restitution be
made to the payer of the bill, whether the patient or the
insurer, by the physician; provided that a determination of the
amount of restitution shall be based on credible testimony in the
record.
(13) Having a license to practice medicine or the
authority to practice medicine revoked, suspended, restricted, or
acted against or having a license to practice medicine denied by
the licensing authority of any jurisdiction. For purposes of this
subdivision, the licensing authority's acceptance of a license to
practice medicine voluntarily relinquished by a physician or
relinquished by stipulation, consent order, or other settlement
in response to or in anticipation of the filing of administrative
charges against the physician's license, is an action against a
license to practice medicine.
(14) The failure to respond, within a reasonable
period of time and in a reasonable manner as determined by the
Board, to inquiries from the Board concerning any matter
affecting the license to practice medicine.
(15) The failure to complete an amount not to
exceed 150 hours of continuing medical education during any three
consecutive calendar years pursuant to rules adopted by the
Board.
For any of the foregoing reasons, the Board may deny the
issuance of a license to an applicant or revoke a license issued
to a physician, may suspend such a license for a period of time,
and may impose conditions upon the continued practice after such
period of suspension as the Board may deem advisable, may limit
the accused physician's practice of medicine with respect to the
extent, nature or location of the physician's practice as the
Board deems advisable. The Board may, in its discretion and upon
such terms and conditions and for such period of time as it may
prescribe, restore a license so revoked or rescinded, except that
no license that has been revoked shall be restored for a period
of two years following the date of revocation.
(b) The Board shall refer to the State Medical Society
Physician Health and Effectiveness Committee all physicians whose
health and effectiveness have been significantly impaired by
alcohol, drug addiction or mental illness.
(c) A felony conviction shall result in the automatic
revocation of a license issued by the Board, unless the Board
orders otherwise or receives a request for a hearing from the
person within 60 days of receiving notice from the Board, after
the conviction, of the provisions of this subsection. If the
Board receives a timely request for a hearing in such a case, the
provisions of G.S. 90-14.2 shall be followed.
(d) The Board and its members and staff may release
confidential or nonpublic information to any health care
licensure board in this State or another state about the
issuance, denial, annulment, suspension, or revocation of a
license, or the voluntary surrender of a license by a Board-
licensed physician, including the reasons for the action, or an
investigative report made by the Board. The Board shall notify
the physician within 60 days after the information is
transmitted. A summary of the information that is being
transmitted shall be furnished to the physician. If the physician
requests, in writing, within 30 days after being notified that
such information has been transmitted, he shall be furnished a
copy of all information so transmitted. The notice or copies of
the information shall not be provided if the information relates
to an ongoing criminal investigation by any law-enforcement
agency, or authorized Department of Health and Human Services
personnel with enforcement or investigative responsibilities.
(e) The Board and its members and staff shall not be held
liable in any civil or criminal proceeding for exercising, in
good faith, the powers and duties authorized by law. (C.S., s.
6618; 1921, c. 47, s. 4; Ex. Sess. 1921, c. 44, s. 6; 1933, c.
32; 1953, c. 1248, s. 2; 1969, c. 612, s. 4; c. 929, s. 6; 1975,
c. 690, s. 4; 1977, c. 838, s. 3; 1981, c. 573, ss. 9, 10; 1987,
c. 859, ss. 6-10; 1993, c. 241, s. 1; 1995, c. 405, s. 4; 1997-
443, s. 11A.118(a); 1997-481, s. 1.)
§ 90-14.1. Judicial review of Board's decision
denying issuance of a license.
Whenever the North Carolina Medical Board has determined
that a person who has duly made application to take an
examination to be given by the Board showing his education,
training and other qualifications required by said Board, or that
a person who has taken and passed an examination given by the
Board, has failed to satisfy the Board of his qualifications to
be examined or to be issued a license, for any cause other than
failure to pass an examination, the Board shall immediately
notify such person of its decision, and indicate in what respect
the applicant has so failed to satisfy the Board. Such applicant
shall be given a formal hearing before the Board upon request of
such applicant filed with or mailed by registered mail to the
secretary of the Board at Raleigh, North Carolina, within 10 days
after receipt of the Board's decision, stating the reasons for
such request. The Board shall within 20 days of receipt of such
request notify such applicant of the time and place of a public
hearing, which shall be held within a reasonable time. The burden
of satisfying the Board of his qualifications for licensure shall
be upon the applicant. Following such hearing, the Board shall
determine whether the applicant is qualified to be examined or is
entitled to be licensed as the case may be. Any such decision of
the Board shall be subject to judicial review upon appeal to the
Superior Court of Wake County upon the filing with the Board of a
written notice of appeal with exceptions taken to the decision of
the Board within 20 days after service of notice of the Board's
final decision. Within 30 days after receipt of notice of appeal,
the secretary of the Board shall certify to the clerk of the
Superior Court of Wake County the record of the case which shall
include a copy of the notice of hearing, a transcript of the
testimony and evidence received at the hearing, a copy of the
decision of the Board, and a copy of the notice of appeal and
exceptions. Upon appeal the case shall be heard by the judge
without a jury, upon the record, except that in cases of alleged
omissions or errors in the record, testimony may be taken by the
court. The decision of the Board shall be upheld unless the
substantial rights of the applicant have been prejudiced because
the decision of the Board is in violation of law or is not
supported by any evidence admissible under this Article, or is
arbitrary or capricious. Each party to the review proceeding may
appeal to the Supreme Court as hereinafter provided in G.S. 90-
14.11. (1953, c. 1248, s. 3; 1995, c. 94, s. 14.)
§90-14.2. Hearing before revocation or suspension of a
license.
Before the Board shall revoke, restrict or suspend any
license granted by it, the licensee shall be given a written
notice indicating the general nature of the charges, accusation,
or complaint made against him, which notice may be prepared by a
committee or one or more members of the Board designated by the
Board, and stating that such licensee will be given an
opportunity to be heard concerning such charges or complaint at a
time and place stated in such notice, or at a time and place to
be thereafter designated by the Board, and the Board shall hold a
public hearing not less than 30 days from the date of the service
of such notice upon such licensee, at which such licensee may
appear personally and through counsel, may cross examine
witnesses and present evidence in his own behalf. A physician who
is mentally incompetent shall be represented at such hearing and
shall be served with notice as herein provided by and through a
guardian ad litem appointed by the clerk of the court of the
county in which the physician has his residence. Such licensee or
physician may, if he desires, file written answers to the charges
or complaints preferred against him within 30 days after the
service of such notice, which answer shall become a part of the
record but shall not constitute evidence in the case. (1953, c.
1248, s. 3; 1975, c. 690, s. 5.)
§ 90-14.3. Service of notices.
Any notice required by this Chapter may be served either
personally or by an officer authorized by law to serve process,
or by registered or certified mail, return receipt requested,
directed to the licensee or applicant at his last known address
as shown by the records of the Board. If notice is served
personally, it shall be deemed to have been served at the time
when the officer delivers the notice to the person addressed.
Where notice is served by registered or certified mail, it shall
be deemed to have been served on the date borne by the return
receipt showing delivery of the notice to the addressee, showing
refusal of the addressee to accept the notice, or showing failure
to locate the addressee at the last known address as shown by the
records of the Board. (1953, c. 1248, s. 3; 1995, c. 405, s. 5.)
§90-14.4. Place of hearings for revocation or suspension of
license.
Upon written request of the accused physician to the
secretary of the Board within 20 days after service of the
charges or complaints against him, a hearing for the purpose of
determining revocation or suspension of his license shall be
conducted in the county in which such physician maintains his
residence, or at the election of the Board, in any county in
which the act or acts complained of occurred. In the absence of
such request, the hearing shall be held at a place designated by
the Board, or as agreed upon by the physician and the Board.
(1953, c. 1248, s. 3; 1981, c. 573, s. 11.)
§90-14.5. Use of trial examiner or depositions.
Where the licensee requests that the hearing herein provided
for be held by the Board in a county other than the county
designated for the holding of the meeting of the Board at which
the matter is to be heard, the Board may designate in writing one
or more of its members to conduct the hearing as a trial examiner
or trial committee, to take evidence and report a written
transcript thereof to the Board at a meeting where a majority of
the members are present and participating in the decision.
Evidence and testimony may also be presented at such hearings and
to the Board in the form of depositions taken before any person
designated in writing by the Board for such purpose or before any
person authorized to administer oaths, in accordance with the
procedure for the taking of depositions in civil actions in the
superior court. (1953, c. 1248, s. 3.)
§90-14.6. Evidence admissible.
In proceedings held pursuant to this Article the Board shall
admit and hear evidence in the same manner and form as prescribed
by law for civil actions. A complete record of such evidence
shall be made, together with the other proceedings incident to
such hearing. (1953, c. 1248, s. 3.)
§90-14.7. Procedure where person fails to request or appear
for hearing.
If a person who has requested a hearing does not appear, and
no continuance has been granted, the Board or its trial examiner
or committee may hear the evidence of such witnesses as may have
appeared, and the Board may proceed to consider the matter and
dispose of it on the basis of the evidence before it. For good
cause, the Board may reopen any case for further hearing. (1953,
c. 1248, s. 3.)
§90-14.8. Appeal from Board's decision revoking or suspending
a license.
A physician whose license is revoked or suspended by the
Board may obtain a review of the decision of the Board in the
Superior Court of Wake County or in the superior court in the
county in which the hearing was held or upon agreement of the
parties to the appeal in any other superior court of the State,
upon filing with the secretary of the Board a written notice of
appeal within 20 days after the date of the service of the
decision of the Board, stating all exceptions taken to the
decision of the Board and indicating the court in which the
appeal is to be heard.
Within 30 days after the receipt of a notice of appeal as
herein provided, the Board shall prepare, certify and file with
the clerk of the superior court in the county to which the
appeal is directed the record of the case comprising a copy of
the charges, notice of hearing, transcript of testimony, and
copies of documents or other written evidence produced at the
hearing, decision of the Board, and notice of appeal containing
exceptions to the decision of the Board. (1953, c. 1248, s. 3;
1981, c. 573, s. 12.)
§ 90-14.9. Appeal bond; stay of Board
order.
(a) The person seeking the review shall file with the clerk
of the reviewing court a copy of the notice of appeal and an
appeal bond of two hundred dollars ($200.00) at the same time the
notice of appeal is filed with the Board. Subject to subsection
(b) of this section, at any time before or during the review
proceeding the aggrieved person may apply to the reviewing court
for an order staying the operation of the Board decision pending
the outcome of the review, which the court may grant or deny in
its discretion.
(b) No stay shall be granted under this section unless the
Board is given prior notice and an opportunity to be heard in
response to the application for an order staying the operation of
the Board decision. (1953, c. 1248, s. 3; 1995, c. 405, s. 6.)
§90-14.10. Scope of review.
Upon the review of the Board's decision revoking or
suspending a license, the case shall be heard by the judge
without a jury, upon the record, except that in cases of alleged
omissions or errors in the record, testimony thereon may be taken
by the court. The court may affirm the decision of the Board or
remand the case for further proceedings; or it may reverse or
modify the decision if the substantial rights of the accused
physician have been prejudiced because the findings or decisions
of the Board are in violation of substantive or procedural law,
or are not supported by competent, material, and substantial
evidence admissible under this Article, or are arbitrary or
capricious. At any time after the notice of appeal has been
filed, the court may remand the case to the Board for the hearing
of any additional evidence which is material and is not
cumulative and which could not reasonably have been presented at
the hearing before the Board. (1953, c. 1248, s. 3.)
§ 90-14.11. Appeal; appeal bond.
(a) Any party to the review proceeding, including the
Board, may appeal from the decision of the superior court under
rules of procedure applicable in other civil cases. No appeal
bond shall be required of the Board. Subject to subsection (b) of
this section, the appealing party may apply to the superior court
for a stay of that court's decision or a stay of the Board's
decision, whichever shall be appropriate, pending the outcome of
the appeal.
(b) No stay shall be granted unless all parties are given
prior notice and an opportunity to be heard in response to the
application for an order staying the operation of the Board
decision. (1953, c. 1248, s. 3; 1989, c. 770, s. 75.1; 1995, c.
405, s. 7.)
§ 90-14.12. Injunctions.
The Board may appear in its own name in the superior courts
in an action for injunctive relief to prevent violation of this
Article and the superior courts shall have power to grant such
injunctions regardless of whether criminal prosecution has been
or may be instituted as a result of such violations. Actions
under this section shall be commenced in the superior court
district or set of districts as defined in G.S. 7A-41.1 in which
the respondent resides or has his principal place of business or
in which the alleged acts occurred. (1953, c. 1248, s. 3; 1981,
c. 573, s. 13; 1987 (Reg. Sess., 1988), c. 1037, s. 100.)
§ 90-14.13. Reports of disciplinary action by
health care institutions; immunity from liability.
The chief administrative officer of every licensed hospital
or other health care institution, including Health Maintenance
Organizations, as defined in G.S. 58-67-5, preferred providers,
as defined in G.S. 58-50-56, and all other provider organizations
that issue credentials to physicians who practice medicine in the
State, shall, after consultation with the chief of staff of that
institution, report to the Board any revocation, suspension, or
limitation of a physician's privileges to practice in that
institution. A hospital is not required to report the suspension
of a physician's privileges for failure to timely complete
medical records unless the suspension is the third within the
calendar year for failure to timely complete medical records.
Upon reporting the third suspension, the hospital shall also
report the previous two suspensions. The institution shall also
report to the Board resignations from practice in that
institution by persons licensed under this Article. The Board
shall report all violations of this subsection known to it to the
licensing agency for the institution involved.
Any licensed physician who does not possess professional
liability insurance shall report to the Board any award of
damages or any settlement of any malpractice complaint affecting
his or her practice within 30 days of the award or settlement.
The chief administrative officer of each insurance company
providing professional liability insurance for physicians who
practice medicine in North Carolina, the administrative officer
of the Liability Insurance Trust Fund Council created by G.S. 116-
220, and the administrative officer of any trust fund operated by
a hospital authority, group, or provider shall report to the
Board within 30 days:
(1) Any award of damages or settlement affecting or
involving a physician it insures, or
(2) Any cancellation or nonrenewal of its
professional liability coverage of a physician, if the
cancellation or nonrenewal was for cause.
The Board may request details about any action and the
officers shall promptly furnish the requested information. The
reports required by this section are privileged and shall not be
open to the public. The Board shall report all violations of this
paragraph to the Commissioner of Insurance.
Any person making a report required by this section shall be
immune from any criminal prosecution or civil liability resulting
therefrom unless such person knew the report was false or acted
in reckless disregard of whether the report was false. (1981, c.
573, s. 14; 1987, c. 859, s. 11; 1995, c. 405, s. 8; 1997-481, s.
2; 1997-519, s. 3.14.)
§ 90-15. License fee; salaries, fees, and
expenses of Board.
Each applicant for a license by examination shall pay to the
North Carolina Medical Board a fee which shall be prescribed by
the Board in an amount not exceeding the sum of four hundred
dollars ($400.00) plus the cost of test materials before being
admitted to the examination. Whenever a license is granted
without examination, as authorized in G.S. 90-13, the applicant
shall pay to the Board a fee in an amount to be prescribed by the
Board not in excess of two hundred fifty dollars ($250.00).
Whenever a limited license is granted as provided in G.S. 90-12,
the applicant shall pay to the Board a fee not to exceed one
hundred fifty dollars ($150.00), except where a limited license
to practice in a medical education and training program approved
by the Board for the purpose of education or training is granted,
the applicant shall pay a fee of twenty-five dollars ($25.00). A
fee of twenty-five dollars ($25.00) shall be paid for the
issuance of a duplicate license. All fees shall be paid in
advance to the North Carolina Medical Board, to be held in a fund
for the use of the Board. The compensation and expenses of the
members and officers of the Board and all expenses proper and
necessary in the opinion of the Board to the discharge of its
duties under and to enforce the laws regulating the practice of
medicine or surgery shall be paid out of the fund, upon the
warrant of the Board. The per diem compensation of Board members
shall not exceed two hundred dollars ($200.00) per day per member
for time spent in the performance and discharge of duties as a
member. Any unexpended sum or sums of money remaining in the
treasury of the Board at the expiration of the terms of office of
the members of the Board shall be paid over to their successors
in office.
For the initial and annual registration of an assistant to a
physician, the Board may require the payment of a fee not to
exceed a reasonable amount. (1858-9, c. 258, s. 13; Code, s.
3130; Rev., s. 4501; 1913, c. 20, ss. 4, 5; C.S., s. 6619; 1921,
c. 47, s. 5; Ex. Sess. 1921, c. 44, s. 7; 1953, c. 187; 1969, c.
929, s. 4; 1971, c. 817, s. 2; c. 1150, s. 5; 1977, c. 838, s. 4;
1979, c. 196, s. 1; 1981, c. 573, s. 15; 1983 (Reg. Sess., 1984),
c. 1063, s. 1; 1985, c. 362, ss. 1-3; 1987, c. 859, ss. 13, 14;
1993 (Reg. Sess., 1994), c. 566, s. 2; 1995, c. 94, s. 15; c.
509, s. 37.)
§ 90-15.1. Registration every year with
Board.
Every person licensed to practice medicine by the North
Carolina Medical Board shall register annually with the Board
within 30 days of the person's birthday. A person who registers
with the Board shall report to the Board the person's name and
office and residence address and any other information required
by the Board, and shall pay a registration fee fixed by the Board
not in excess of one hundred dollars ($100.00). A physician who
is not actively engaged in the practice of medicine in North
Carolina and who does not wish to register the license may direct
the Board to place the license on inactive status. For purposes
of annual registration, the Board shall use a simplified
registration form which allows registrants to confirm information
on file with the Board. A physician who fails to register as
required by this section shall pay an additional fee of twenty
dollars ($20.00) to the Board. The license of any physician who
fails to register and who remains unregistered for a period of 30
days after certified notice of the failure is automatically
inactive. A person whose license is inactive shall not practice
medicine in North Carolina nor be required to pay the annual
registration fee. Upon payment of all accumulated fees and
penalties, the license of the physician may be reinstated,
subject to the Board requiring the physician to appear before the
Board for an interview and to comply with other licensing
requirements. The penalty may not exceed the maximum fee for a
license under G.S. 90-13. (1957, c. 597; 1969, c. 929, s. 5;
1979, c. 196, s. 2; 1983 (Reg. Sess., 1984), c. 1063, s. 2; 1987,
c. 859, s. 12; 1993 (Reg. Sess., 1994), c. 566, s. 1; 1995, c.
94, s. 16; 1995 (Reg. Sess., 1996), c. 634, s. 1(a); 1997-481, s.
3.)
§ 90-16. Board to keep record; publication of
names of licentiates; transcript as evidence; receipt of evidence
concerning treatment of patient who has not consented to public
disclosure.
The North Carolina Medical Board shall keep a regular record
of its proceedings in a book kept for that purpose, together with
the names of the members of the Board present, the names of the
applicants for license, and other information as to its actions.
The North Carolina Medical Board shall cause to be entered in a
separate book the name of each applicant to whom a license is
issued to practice medicine or surgery, along with any
information pertinent to such issuance. The North Carolina
Medical Board shall publish the names of those licensed in three
daily newspapers published in the State of North Carolina, within
30 days after granting the same. A transcript of any such entry
in the record books, or certificate that there is not entered
therein the name and proficiency or date of granting such license
of a person charged with the violation of the provisions of this
Article, certified under the hand of the secretary and the seals
of the North Carolina Medical Board, shall be admitted as
evidence in any court of this State when it is otherwise
competent.
The Board may in a closed session receive evidence involving
or concerning the treatment of a patient who has not expressly or
impliedly consented to the public disclosure of such treatment as
may be necessary for the protection of the rights of such patient
or of the accused physician and the full presentation of relevant
evidence. All records, papers and other documents containing
information collected and compiled by the Board, or its members
or employees as a result of investigations, inquiries or
interviews conducted in connection with a licensing or
disciplinary matter shall not be considered public records within
the meaning of Chapter 132 of the General Statutes; provided,
however, that any notice or statement of charges against any
licensee, or any notice to any licensee of a hearing in any
proceeding shall be a public record within the meaning of Chapter
132 of the General Statutes, notwithstanding that it may contain
information collected and compiled as a result of any such
investigation, inquiry or interview; and provided, further, that
if any such record, paper or other document containing
information theretofore collected and compiled by the Board, as
hereinbefore provided, is received and admitted in evidence in
any hearing before the Board, it shall thereupon be a public
record within the meaning of Chapter 132 of the General Statutes.
In any proceeding before the Board, in any record of any
hearing before the Board, and in the notice of the charges
against any licensee (notwithstanding any provision herein to the
contrary) the Board may withhold from public disclosure the
identity of a patient who has not expressly or impliedly
consented to the public disclosure of treatment by the accused
physician. (1858-9, c. 258, s. 12; Code, s. 3129; Rev., s. 4500;
C.S., s. 6620; 1921, c. 47, s. 6; 1977, c. 838, s. 5; 1993 (Reg.
Sess., 1994), c. 570, s. 6; 1995, c. 94, s. 17; 1997-481, s. 4.)
§90-17. Repealed by Session Laws 1967, c. 691, s. 59.
§ 90-18. Practicing without license; practicing
defined; penalties.
(a) No person shall practice medicine or surgery, or any of
the branches thereof, nor in any case prescribe for the cure of
diseases unless the person shall have been first licensed and
registered so to do in the manner provided in this Article, and
if any person shall practice medicine or surgery without being
duly licensed and registered, as provided in this Article, the
person shall not be allowed to maintain any action to collect any
fee for such services. The person so practicing without license
shall be guilty of a Class 1 misdemeanor.
(b) Any person shall be regarded as practicing medicine or
surgery within the meaning of this Article who shall diagnose or
attempt to diagnose, treat or attempt to treat, operate or
attempt to operate on, or prescribe for or administer to, or
profess to treat any human ailment, physical or mental, or any
physical injury to or deformity of another person. A person who
resides in any state and who, by use of any electronic or other
mediums, performs any of the acts described in this subsection
shall be regarded as practicing medicine or surgery and shall be
subject to the provisions of this Article and appropriate
regulation by the North Carolina Medical Board.
(c) The following shall not constitute practicing medicine
or surgery as defined in subsection (b) of this section:
(1) The administration of domestic or family
remedies in cases of emergency.
(2) The practice of dentistry by any legally
licensed dentist engaged in the practice of dentistry and dental
surgery.
(3) The practice of pharmacy by any legally
licensed pharmacist engaged in the practice of pharmacy.
(4) The practice of medicine and surgery by any
surgeon or physician of the United States army, navy, or public
health service in the discharge of his official duties.
(5) The treatment of the sick or suffering by
mental or spiritual means without the use of any drugs or other
material means.
(6) The practice of optometry by any legally
licensed optometrist engaged in the practice of optometry.
(7) The practice of midwifery as defined in G.S. 90-
178.2.
(8) The practice of chiropody by any legally
licensed chiropodist when engaged in the practice of chiropody,
and without the use of any drug.
(9) The practice of osteopathy by any legally
licensed osteopath when engaged in the practice of osteopathy as
defined by law, and especially G.S. 90-129.
(10) The practice of chiropractic by any legally
licensed chiropractor when engaged in the practice of
chiropractic as defined by law, and without the use of any drug
or surgery.
(11) The practice of medicine or surgery by any
nonregistered reputable physician or surgeon who comes into this
State, either in person or by use of any electronic or other
mediums, on an irregular basis, to consult with a resident
registered physician or to consult with personnel at a medical
school about educational or medical training. This proviso shall
not apply to physicians resident in a neighboring state and
regularly practicing in this State.
(12) Any person practicing radiology as hereinafter
defined shall be deemed to be engaged in the practice of medicine
within the meaning of this Article. "Radiology" shall be defined
as, that method of medical practice in which demonstration and
examination of the normal and abnormal structures, parts or
functions of the human body are made by use of X ray. Any person
shall be regarded as engaged in the practice of radiology who
makes or offers to make, for a consideration, a demonstration or
examination of a human being or a part or parts of a human body
by means of fluoroscopic exhibition or by the shadow imagery
registered with photographic materials and the use of X rays; or
holds himself out to diagnose or able to make or makes any
interpretation or explanation by word of mouth, writing or
otherwise of the meaning of such fluoroscopic or registered
shadow imagery of any part of the human body by use of X rays; or
who treats any disease or condition of the human body by the
application of X rays or radium. Nothing in this subdivision
shall prevent the practice of radiology by any person licensed
under the provisions of Articles 2, 7, 8, and 12A of this
Chapter.
(13) The performance of any medical acts, tasks,
and functions by a licensed physician assistant at the direction
or under the supervision of a physician in accordance with rules
adopted by the Board. This subdivision shall not limit or prevent
any physician from delegating to a qualified person any acts,
tasks, and functions that are otherwise permitted by law or
established by custom. The Board shall authorize physician
assistants licensed in this State or another state to perform
specific medical acts, tasks, and functions during a disaster.
(14) The practice of nursing by a registered nurse
engaged in the practice of nursing and the performance of acts
otherwise constituting medical practice by a registered nurse
when performed in accordance with rules and regulations developed
by a joint subcommittee of the North Carolina Medical Board and
the Board of Nursing and adopted by both boards.
(15) The practice of dietetics/nutrition by a
licensed dietitian/nutritionist under the provisions of Article
25 of this Chapter.
(16) The practice of acupuncture by a licensed
acupuncturist in accordance with the provisions of Article 30 of
this Chapter. (1858-9, c. 258, s. 2; Code, s. 3122; 1885, c. 117,
s. 2; c. 261; 1889, c. 181, ss. 1, 2; Rev., ss. 3645, 4502; C.S.,
s. 6622; 1921, c. 47, s. 7; Ex. Sess. 1921, c. 44, s. 8; 1941, c.
163; 1967, c. 263, s. 1; 1969, c. 612, s. 5; c. 929, s. 3; 1971,
c. 817, s. 1; c. 1150, s. 6; 1973, c. 92, s. 1; 1983, c. 897, s.
2; 1993, c. 303, s. 2; c. 539, s. 615; 1994, Ex. Sess., c. 24, s.
14(c); 1995, c. 94, ss. 18, 19; 1997-511, s. 4; 1997-514, s. 1.)
§ 90-18.1. Limitations on physician
assistants.
(a) Any person who is licensed under the provisions of G.S.
90-11 to perform medical acts, tasks, and functions as an
assistant to a physician may use the title "physician assistant".
Any other person who uses the title in any form or holds out to
be a physician assistant or to be so licensed, shall be deemed to
be in violation of this Article.
(b) Physician assistants are authorized to write
prescriptions for drugs under the following conditions:
(1) The North Carolina Medical Board has adopted
regulations governing the approval of individual physician
assistants to write prescriptions with such limitations as the
Board may determine to be in the best interest of patient health
and safety.
(2) The physician assistant holds a current license
issued by the Board.
(3) The North Carolina Medical Board has assigned
an identification number to the physician assistant which is
shown on the written prescription.
(4) The supervising physician has provided to the
physician assistant written instructions about indications and
contraindications for prescribing drugs and a written policy for
periodic review by the physician of the drugs prescribed.
(c) Physician assistants are authorized to compound and
dispense drugs under the following conditions:
(1) The function is performed under the supervision
of a licensed pharmacist.
(2) Rules and regulations of the North Carolina
Board of Pharmacy governing this function are complied with.
(3) The physician assistant holds a current license
issued by the Board.
(d) Physician assistants are authorized to order
medications, tests and treatments in hospitals, clinics, nursing
homes, and other health facilities under the following
conditions:
(1) The North Carolina Medical Board has adopted
regulations governing the approval of individual physician
assistants to order medications, tests, and treatments with such
limitations as the Board may determine to be in the best interest
of patient health and safety.
(2) The physician assistant holds a current license
issued by the Board.
(3) The supervising physician has provided to the
physician assistant written instructions about ordering
medications, tests, and treatments, and when appropriate,
specific oral or written instructions for an individual patient,
with provision for review by the physician of the order within a
reasonable time, as determined by the Board, after the
medication, test, or treatment is ordered.
(4) The hospital or other health facility has
adopted a written policy, approved by the medical staff after
consultation with the nursing administration, about ordering
medications, tests, and treatments, including procedures for
verification of the physician assistants' orders by nurses and
other facility employees and such other procedures as are in the
interest of patient health and safety.
(e) Any prescription written by a physician assistant or
order given by a physician assistant for medications, tests, or
treatments shall be deemed to have been authorized by the
physician approved by the Board as the supervisor of the
physician assistant and the supervising physician shall be
responsible for authorizing the prescription or order.
(f) Any registered nurse or licensed practical nurse who
receives an order from a physician assistant for medications,
tests, or treatments is authorized to perform that order in the
same manner as if it were received from a licensed physician.
(1975, c. 627; 1977, c. 904, s. 1; 1977, 2nd Sess., c. 1194, s.
1; 1995, c. 94, s. 20; 1997-511, s. 5.)
§ 90-18.2. Limitations on nurse
practitioners.
(a) Any nurse approved under the provisions of G.S. 90-
18(14) to perform medical acts, tasks or functions may use the
title "nurse practitioner." Any other person who uses the title
in any form or holds out to be a nurse practitioner or to be so
approved, shall be deemed to be in violation of this Article.
(b) Nurse practitioners are authorized to write
prescriptions for drugs under the following conditions:
(1) The North Carolina Medical Board and Board of
Nursing have adopted regulations developed by a joint
subcommittee governing the approval of individual nurse
practitioners to write prescriptions with such limitations as the
boards may determine to be in the best interest of patient health
and safety;
(2) The nurse practitioner has current approval
from the boards;
(3) The North Carolina Medical Board has assigned
an identification number to the nurse practitioner which is shown
on the written prescription; and
(4) The supervising physician has provided to the
nurse practitioner written instructions about indications and
contraindications for prescribing drugs and a written policy for
periodic review by the physician of the drugs prescribed.
(c) Nurse practitioners are authorized to compound and
dispense drugs under the following conditions:
(1) The function is performed under the supervision
of a licensed pharmacist; and
(2) Rules and regulations of the North Carolina
Board of Pharmacy governing this function are complied with.
(d) Nurse practitioners are authorized to order
medications, tests and treatments in hospitals, clinics, nursing
homes and other health facilities under the following conditions:
(1) The North Carolina Medical Board and Board of
Nursing have adopted regulations developed by a joint
subcommittee governing the approval of individual nurse
practitioners to order medications, tests and treatments with
such limitations as the boards may determine to be in the best
interest of patient health and safety;
(2) The nurse practitioner has current approval
from the boards;
(3) The supervising physician has provided to the
nurse practitioner written instructions about ordering
medications, tests and treatments, and when appropriate, specific
oral or written instructions for an individual patient, with
provision for review by the physician of the order within a
reasonable time, as determined by the Board, after the
medication, test or treatment is ordered; and
(4) The hospital or other health facility has
adopted a written policy, approved by the medical staff after
consultation with the nursing administration, about ordering
medications, tests and treatments, including procedures for
verification of the nurse practitioners' orders by nurses and
other facility employees and such other procedures as are in the
interest of patient health and safety.
(e) Any prescription written by a nurse practitioner or
order given by a nurse practitioner for medications, tests or
treatments shall be deemed to have been authorized by the
physician approved by the boards as the supervisor of the nurse
practitioner and such supervising physician shall be responsible
for authorizing such prescription or order.
(f) Any registered nurse or licensed practical nurse who
receives an order from a nurse practitioner for medications,
tests or treatments is authorized to perform that order in the
same manner as if it were received from a licensed physician.
(1977, 2nd Sess., c. 1194, s. 2; 1995, c. 94, s. 21.)
§§90-19, 90-20. Repealed by Session Laws 1967, c. 691, s.
59.
§ 90-21. Certain offenses prosecuted in
superior court; duties of Attorney General.
In case of the violation of the criminal provisions of G.S.
90-18, the Attorney General of the State of North Carolina, upon
complaint of the North Carolina Medical Board, shall investigate
the charges preferred, and if in his judgment the law has been
violated, he shall direct the district attorney of the district
in which the offense was committed to institute a criminal action
against the offending persons. A district attorney's fee of five
dollars ($5.00) shall be allowed and collected in accordance with
the provisions of G.S. 6-12. The North Carolina Medical Board may
also employ, at their own expense, special counsel to assist the
Attorney General or the district attorney.
Exclusive original jurisdiction of all criminal actions
instituted for the violations of G.S. 90-18 shall be in the
superior court, the provisions of any special or local act to the
contrary notwithstanding. (1915, c. 220, s. 2; C.S., s. 6625;
1973, c. 47, s. 2; 1981, c. 573, s. 16; 1995, c. 94, s. 22.)
ARTICLE 1A.
Treatment of Minors.
Part 1. General Provisions.
§ 90-21.1. When physician may treat minor
without consent of parent, guardian or person in loco
parentis.
It shall be lawful for any physician licensed to practice
medicine in North Carolina to render treatment to any minor
without first obtaining the consent and approval of either the
father or mother of said child, or any person acting as guardian,
or any person standing in loco parentis to said child where:
(1) The parent or parents, the guardian, or a
person standing in loco parentis to said child cannot be located
or contacted with reasonable diligence during the time within
which said minor needs to receive the treatment herein
authorized, or
(2) Where the identity of the child is unknown, or
where the necessity for immediate treatment is so apparent that
any effort to secure approval would delay the treatment so long
as to endanger the life of said minor, or
(3) Where an effort to contact a parent, guardian,
or person standing in loco parentis would result in a delay that
would seriously worsen the physical condition of said minor, or
(4) Where the parents refuse to consent to a
procedure, and the necessity for immediate treatment is so
apparent that the delay required to obtain a court order would
endanger the life or seriously worsen the physical condition of
the child. No treatment shall be administered to a child over the
parent's objection as herein authorized unless the physician
shall first obtain the opinion of another physician licensed to
practice medicine in the State of North Carolina that such
procedure is necessary to prevent immediate harm to the child.
Provided, however, that the refusal of a physician to use,
perform or render treatment to a minor without the consent of the
minor's parent, guardian, or person standing in the position of
loco parentis, in accordance with this Article, shall not
constitute grounds for a civil action or criminal proceedings
against such physician. (1965, c. 810, s. 1; 1977, c. 625, s. 1.)
§90-21.2. "Treatment" defined.
The word "treatment" as used in G.S. 90-21.1 is hereby
defined to mean any medical procedure or treatment, including X
rays, the administration of drugs, blood transfusions, use of
anesthetics, and laboratory or other diagnostic procedures
employed by or ordered by a physician licensed to practice
medicine in the State of North Carolina that is used, employed,
or ordered to be used or employed commensurate with the exercise
of reasonable care and equal to the standards of medical practice
normally employed in the community where said physician
administers treatment to said minor. (1965, c. 810, s. 2.)
§90-21.3. Performance of surgery on minor; obtaining second
opinion as to necessity.
The word "treatment" as defined in G.S. 90-21.2 shall also
include any surgical procedure which in the opinion of the
attending physician is necessary under the terms and conditions
set out in G.S. 90-21.1; provided, however, no surgery shall be
conducted upon a minor as herein authorized unless the surgeon
shall first obtain the opinion of another physician licensed to
practice medicine in the State of North Carolina that said
surgery is necessary under the conditions set forth in G.S.
90-21.1; provided further, that in any emergency situation that
shall arise in a rural community, or in a community where it is
impossible for the surgeon to contact any other physician for the
purpose of obtaining his opinion as to the necessity for
immediate surgery, it shall not be necessary for the surgeon to
obtain approval from another physician before performing such
surgery as is necessary under the terms and conditions set forth
in G.S. 90-21.1. (1965, c. 810, s. 3.)
§90-21.4. Responsibility, liability and immunity of
physicians.
(a) Any physician licensed to practice medicine in North
Carolina providing health services to a minor under the terms,
conditions and circumstances of this Article shall not be held
liable in any civil or criminal action for providing such
services without having obtained permission from the minor's
parent, legal guardian, person standing in loco parentis, or a
legal custodian other than a parent when granted specific
authority in a custody order to consent to medical or psychiatric
treatment. The physician shall not be relieved on the basis of
this Article from liability for negligence in the diagnosis and
treatment of a minor.
(b) The physician shall not notify a parent, legal guardian,
person standing in loco parentis, or a legal custodian other than
a parent when granted specific authority in a custody order to
consent to medical or psychiatric treatment, without the
permission of the minor, concerning the medical health services
set out in G.S. 90-21.5(a), unless the situation in the opinion
of the attending physician indicates that notification is
essential to the life or health of the minor. If a parent, legal
guardian[,] person standing in loco parentis, or a legal
custodian other than a parent when granted specific authority in
a custody order to consent to medical or psychiatric treatment
contacts the physician concerning the treatment or medical
services being provided to the minor, the physician may give
information. (1965, c. 810, s. 4; 1977, c. 582, s. 1; 1985, c.
589, s. 30.)
§90-21.5. Minor's consent sufficient for certain medical
health services.
(a) Any minor may give effective consent to a physician
licensed to practice medicine in North Carolina for medical
health services for the prevention, diagnosis and treatment of
(i) venereal disease and other diseases reportable under G.S.
130A-135, (ii) pregnancy, (iii) abuse of controlled substances or
alcohol, and (iv) emotional disturbance. This section does not
authorize the inducing of an abortion, performance of a
sterilization operation, or admission to a 24-hour facility
licensed under Article 2 of Chapter 122C of the General Statutes
except as provided in G.S. 122C-222. This section does not
prohibit the admission of a minor to a treatment facility upon
his own written application in an emergency situation as
authorized by G.S. 122C-222.
(b) Any minor who is emancipated may consent to any medical
treatment, dental and health services for himself or for his
child. (1971, c. 35; 1977, c. 582, s. 2; 1983, c. 302, s. 2;
1985, c. 589, s. 31; 1985 (Reg. Sess., 1986), c. 863, s. 4.)
Part 2. Parental or Judicial Consent for Abortion.
§ 90-21.6. Definitions.
For the purposes of Part 2 only of this Article, unless the
context clearly requires otherwise:
(1) (Effective until July 1, 1999)
"Unemancipated minor" or "minor" means any person under the
age of 18 who has not been married or has not been emancipated
pursuant to Article 56 of Chapter 7A of the General Statutes.
(1) (Effective July 1, 1999) "Unemancipated
minor" or "minor" means any person under the age of 18 who has
not been married or has not been emancipated pursuant to Article
35 of Chapter 7B of the General Statutes.
(2) "Abortion" means the use or prescription of any
instrument, medicine, drug, or any other substance or device with
intent to terminate the pregnancy of a woman known to be
pregnant, for reasons other than to save the life or preserve the
health of an unborn child, to remove a dead unborn child, or to
deliver an unborn child prematurely, by accepted medical
procedures in order to preserve the health of both the mother and
the unborn child. (1995, c. 462, s. 1; 1998-202, s. 13(t).)
§ 90-21.7. Parental consent required.
(a) No physician licensed to practice medicine in North
Carolina shall perform an abortion upon an unemancipated minor
unless the physician or agent thereof or another physician or
agent thereof first obtains the written consent of the minor and
of:
(1) A parent with custody of the minor; or
(2) The legal guardian or legal custodian of the
minor; or
(3) A parent with whom the minor is living; or
(4) A grandparent with whom the minor has been
living for at least six months immediately preceding the date of
the minor's written consent.
(b) The pregnant minor may petition, on her own behalf or
by guardian ad litem, the district court judge assigned to the
juvenile proceedings in the district court where the minor
resides or where she is physically present for a waiver of the
parental consent requirement if:
(1) None of the persons from whom consent must be
obtained pursuant to this section is available to the physician
performing the abortion or the physician's agent or the referring
physician or the agent thereof within a reasonable time or
manner; or
(2) All of the persons from whom consent must be
obtained pursuant to this section refuse to consent to the
performance of an abortion; or
(3) The minor elects not to seek consent of the
person from whom consent is required. (1995, c. 462, s. 1.)
§ 90-21.8. Procedure for waiver of parental
consent.
(a) The requirements and procedures under Part 2 of this
Article are available and apply to unemancipated minors seeking
treatment in this State.
(b) The court shall ensure that the minor or her guardian
ad litem is given assistance in preparing and filing the petition
and shall ensure that the minor's identity is kept confidential.
(c) The minor may participate in proceedings in the court
on her own behalf or through a guardian ad litem. The court shall
advise her that she has a right to court appointed counsel and
shall provide her with counsel upon her request.
(d) Court proceedings under this section shall be
confidential and shall be given precedence over other pending
matters necessary to ensure that the court may reach a decision
promptly. In no case shall the court fail to rule within seven
days of the time of filing the application. This time limitation
may be extended at the request of the minor. At the hearing, the
court shall hear evidence relating to the emotional development,
maturity, intellect, and understanding of the minor; the nature,
possible consequences, and alternatives to the abortion; and any
other evidence that the court may find useful in determining
whether the parental consent requirement shall be waived.
(e) The parental consent requirement shall be waived if the
court finds:
(1) That the minor is mature and well-informed
enough to make the abortion decision on her own; or
(2) That it would be in the minor's best interests
that parental consent not be required; or
(3) That the minor is a victim of rape or of
felonious incest under G.S. 14-178.
(f) (Effective until July 1, 1999) The court shall
make written findings of fact and conclusions of law supporting
its decision and shall order that a confidential record of the
evidence be maintained. If the court finds that the minor has
been a victim of incest, whether felonious or misdemeanor, it
shall advise the Director of the Department of Social Services of
its findings for further action pursuant to Article 44 of Chapter
7A of the General Statutes.
(f) (Effective July 1, 1999) The court shall make
written findings of fact and conclusions of law supporting its
decision and shall order that a confidential record of the
evidence be maintained. If the court finds that the minor has
been a victim of incest, whether felonious or misdemeanor, it
shall advise the Director of the Department of Social Services of
its findings for further action pursuant to Article 3 of Chapter
7B of the General Statutes.
(g) If the female petitioner so requests in her petition,
no summons or other notice may be served upon the parents,
guardian, or custodian of the minor female.
(h) The minor may appeal an order issued in accordance with
this section. The appeal shall be a de novo hearing in superior
court. The notice of appeal shall be filed within 24 hours from
the date of issuance of the district court order. The de novo
hearing may be held out of district and out of session and shall
be held as soon as possible within seven days of the filing of
the notice of appeal. The record of the de novo hearing is a
confidential record and shall not be open for general public
inspection. The Chief Justice of the North Carolina Supreme Court
shall adopt rules necessary to implement this subsection.
(i) No court costs shall be required of any minor who
avails herself of the procedures provided by this section. (1995,
c. 462, s. 1; 1998-202, s. 13(u).)
§ 90-21.9. Medical emergency exception.
The requirements of parental consent prescribed by G.S. 90-
21.7(a) shall not apply when, in the best medical judgment of the
physician based on the facts of the case before the physician, a
medical emergency exists that so complicates the pregnancy as to
require an immediate abortion, or when the conditions prescribed
by G.S. 90-21.1(4) are met. (1995, c. 462, s. 1.)
§ 90-21.10. Penalty.
Any person who intentionally performs an abortion with
knowledge that, or with reckless disregard as to whether, the
person upon whom the abortion is to be performed is an
unemancipated minor, and who intentionally or knowingly fails to
conform to any requirement of Part 2 of this Article shall be
guilty of a Class 1 misdemeanor. (1995, c. 462, s. 1.)
ARTICLE 1B.
Medical Malpractice Actions.
§ 90-21.11. Definitions.
As used in this Article, the term "health care provider"
means without limitation any person who pursuant to the
provisions of Chapter 90 of the General Statutes is licensed, or
is otherwise registered or certified to engage in the practice of
or otherwise performs duties associated with any of the
following: medicine, surgery, dentistry, pharmacy, optometry,
midwifery, osteopathy, podiatry, chiropractic, radiology,
nursing, physiotherapy, pathology, anesthesiology, anesthesia,
laboratory analysis, rendering assistance to a physician, dental
hygiene, psychiatry, psychology; or a hospital or a nursing home;
or any other person who is legally responsible for the negligence
of such person, hospital or nursing home; or any other person
acting at the direction or under the supervision of any of the
foregoing persons, hospital, or nursing home.
As used in this Article, the term "medical malpractice
action" means a civil action for damages for personal injury or
death arising out of the furnishing or failure to furnish
professional services in the performance of medical, dental, or
other health care by a health care provider. (1975, 2nd Sess., c.
977, s. 4; 1987, c. 859, s. 1; 1995, c. 509, s. 135.2(o).)
§90-21.12. Standard of health care.
In any action for damages for personal injury or death
arising out of the furnishing or the failure to furnish
professional services in the performance of medical, dental, or
other health care, the defendant shall not be liable for the
payment of damages unless the trier of the facts is satisfied by
the greater weight of the evidence that the care of such health
care provider was not in accordance with the standards of
practice among members of the same health care profession with
similar training and experience situated in the same or similar
communities at the time of the alleged act giving rise to the
cause of action. (1975, 2nd Sess., c. 977, s. 4.)
§ 90-21.12A. Nonresident physicians.
A patient may bring a medical malpractice claim in the
courts of this State against a nonresident physician who
practices medicine or surgery by use of any electronic or other
media in this State. (1997-514, s. 2.)
§90-21.13. Informed consent to health care treatment or
procedure.
(a) No recovery shall be allowed against any health care
provider upon the grounds that the health care treatment was
rendered without the informed consent of the patient or the
patient's spouse, parent, guardian, nearest relative or other
person authorized to give consent for the patient where:
(1) The action of the health care provider in obtaining the
consent of the patient or other person authorized to give consent
for the patient was in accordance with the standards of practice
among members of the same health care profession with similar
training and experience situated in the same or similar
communities; and
(2) A reasonable person, from the information provided by the
health care provider under the circumstances, would have a
general understanding of the procedures or treatments and of the
usual and most frequent risks and hazards inherent in the
proposed procedures or treatments which are recognized and
followed by other health care providers engaged in the same field
of practice in the same or similar communities; or
(3) A reasonable person, under all the surrounding circumstances,
would have undergone such treatment or procedure had he been
advised by the health care provider in accordance with the
provisions of subdivisions (1) and (2) of this subsection.
(b) A consent which is evidenced in writing and which meets
the foregoing standards, and which is signed by the patient or
other authorized person, shall be presumed to be a valid consent.
This presumption, however, may be subject to rebuttal only upon
proof that such consent was obtained by fraud, deception or
misrepresentation of a material fact.
(c) A valid consent is one which is given by a person who
under all the surrounding circumstances is mentally and
physically competent to give consent.
(d) No action may be maintained against any health care
provider upon any guarantee, warranty or assurance as to the
result of any medical, surgical or diagnostic procedure or
treatment unless the guarantee, warranty or assurance, or some
note or memorandum thereof, shall be in writing and signed by the
provider or by some other person authorized to act for or on
behalf of such provider.
(e) In the event of any conflict between the provisions of
this section and those of Article 7 of Chapter 35 and Articles 1A
and 19 of Chapter 90, the provisions of those Articles shall
control and continue in full force and effect. (1975, 2nd Sess.,
c. 977, s. 4.)
§ 90-21.14. First aid or emergency treatment;
liability limitation.
(a) Any person, including a volunteer medical or health
care provider at a facility of a local health department as
defined in G.S. 130A-2 or at a nonprofit community health center
or a volunteer member of a rescue squad, who receives no
compensation for his services as an emergency medical care
provider, who renders first aid or emergency health care
treatment to a person who is unconscious, ill or injured,
(1) When the reasonably apparent circumstances
require prompt decisions and actions in medical or other health
care, and
(2) When the necessity of immediate health care
treatment is so reasonably apparent that any delay in the
rendering of the treatment would seriously worsen the physical
condition or endanger the life of the person,
shall not be liable for damages for injuries alleged to have been
sustained by the person or for damages for the death of the
person alleged to have occurred by reason of an act or omission
in the rendering of the treatment unless it is established that
the injuries were or the death was caused by gross negligence,
wanton conduct or intentional wrongdoing on the part of the
person rendering the treatment.
(a1) (1) Any volunteer medical or health care
provider at a facility of a local health department or at a
nonprofit community health center;
(2) Any volunteer medical or health care provider
rendering services to a patient referred by a local health
department as defined in G.S. 130A-2(5) or nonprofit community
health center at the provider's place of employment; or
(3) Any volunteer medical or health care provider
serving as medical director of an emergency medical services
(EMS) agency,
who receives no compensation for medical services or other
related services rendered at the facility, center, or agency or,
who neither charges nor receives a fee for medical services
rendered to the patient referred by a local health department or
nonprofit community health center at the provider's place of
employment shall not be liable for damages for injuries or death
alleged to have occurred by reason of an act or omission in the
rendering of the services unless it is established that the
injuries or death were caused by gross negligence, wanton
conduct, or intentional wrongdoing on the part of the person
rendering the services. The local health department facility,
nonprofit community health center, or agency shall use due care
in the selection of volunteer medical or health care providers,
and this subsection shall not excuse the health department
facility, community health center, or agency for the failure of
the volunteer medical or health care provider to use ordinary
care in the provision of medical services to its patients.
(b) Nothing in this section shall be deemed or construed to
relieve any person from liability for damages for injury or death
caused by an act or omission on the part of such person while
rendering health care services in the normal and ordinary course
of his business or profession. Services provided by a volunteer
health care provider who receives no compensation for his
services and who renders first aid or emergency treatment to
members of athletic teams are deemed not to be in the normal and
ordinary course of the volunteer health care provider's business
or profession. Services provided by a medical or health care
provider who receives no compensation for his services and who
voluntarily renders such services at facilities of local health
departments as defined in G.S. 130A-2 or at a nonprofit community
health center, or as a volunteer medical director of an emergency
medical services (EMS) agency, are deemed not to be in the normal
and ordinary course of the volunteer medical or health care
provider's business or profession.
(c) In the event of any conflict between the provisions of
this section and those of G.S. 20-166(d), the provisions of G.S.
20-166(d) shall control and continue in full force and effect.
(1975, 2nd Sess., c. 977, s. 4; 1985, c. 611, s. 2; 1989, cc.
498, 655; 1991, c. 655, s. 1; 1993, c. 439, s. 1; 1995, c. 85, s.
1.)
§§90-21.15 to 90-21.19. Reserved for future codification
purposes.
ARTICLE 1C.
Physicians and Hospital Reports.
§90-21.20. Reporting by physicians and hospitals of wounds,
injuries and illnesses.
(a) Such cases of wounds, injuries or illnesses as are
enumerated in subsection (b) shall be reported as soon as it
becomes practicable before, during or after completion of
treatment of a person suffering such wounds, injuries, or
illnesses. If such case is treated in a hospital, sanitarium or
other medical institution or facility, such report shall be made
by the Director, Administrator, or other person designated by the
Director or Administrator, or if such case is treated elsewhere,
such report shall be made by the physician or surgeon treating
the case, to the chief of police or the police authorities of the
city or town of this State in which the hospital or other
institution, or place of treatment is located. If such hospital
or other institution or place of treatment is located outside the
corporate limits of a city or town, then the report shall be made
by the proper person in the manner set forth above to the sheriff
of the respective county or to one of his deputies.
(b) Cases of wounds, injuries or illnesses which shall be
reported by physicians, and hospitals include every case of a
bullet wound, gunshot wound, powder burn or any other injury
arising from or caused by, or appearing to arise from or be
caused by, the discharge of a gun or firearm, every case of
illness apparently caused by poisoning, every case of a wound or
injury caused, or apparently caused, by a knife or sharp or
pointed instrument if it appears to the physician or surgeon
treating the case that a criminal act was involved, and every
case of a wound, injury or illness in which there is grave bodily
harm or grave illness if it appears to the physician or surgeon
treating the case that the wound, injury or illness resulted from
a criminal act of violence.
(c) Each report made pursuant to subsections (a) and (b)
above shall state the name of the wounded, ill or injured person,
if known, and the age, sex, race, residence or present location,
if known, and the character and extent of his injuries.
(d) Any hospital, sanitarium, or other like institution or
Director, Administrator, or other designated person, or physician
or surgeon participating in good faith in the making of a report
pursuant to this section shall have immunity from any liability,
civil or criminal, that might otherwise be incurred or imposed as
the result of the making of such report. (1971, c. 4; 1977, c.
31; c. 843, s. 2.)
§ 90-21.20A. Reporting by physicians of pilots'
mental or physical disabilities or infirmities.
(a) A physician who reports to a government agency
responsible for pilots' licenses or certificates or a government
agency responsible for air safety that a pilot or an applicant
for a pilot's license or certificate suffers from or probably
suffers from a physical disability or infirmity that the
physician believes will or reasonably could affect the person's
ability to safely operate an aircraft shall have immunity, civil
or criminal, that might otherwise be incurred or imposed as the
result of making such a report.
(b) A physician who gives testimony about a pilot's or an
applicant's mental or physical disability or infirmity in any
administrative hearing or other proceeding held to consider the
issuance, renewal, revocation, or suspension of a pilot's license
or certificate shall have immunity from any liability, civil or
criminal, that might otherwise be incurred or imposed as the
result of such testimony. (1997-464, s. 2.)
§ 90-21.21: Repealed by Session Laws 1979, c. 529,
s. 1.
ARTICLE 1D.
Peer Review.
§ 90-21.22. Peer review agreements.
(a) The North Carolina Medical Board may, under rules
adopted by the Board in compliance with Chapter 150B of the
General Statutes, enter into agreements with the North Carolina
Medical Society and its local medical society components, and
with the North Carolina Academy of Physician Assistants for the
purpose of conducting peer review activities. Peer review
activities to be covered by such agreements shall include
investigation, review, and evaluation of records, reports,
complaints, litigation and other information about the practices
and practice patterns of physicians licensed by the Board, and of
physician assistants approved by the Board, and shall include
programs for impaired physicians and impaired physician
assistants. Agreements between the Academy and the Board shall be
limited to programs for impaired physicians and physician
assistants and shall not include any other peer review
activities.
(b) Peer review agreements shall include provisions for the
society and for the Academy to receive relevant information from
the Board and other sources, conduct the investigation and review
in an expeditious manner, provide assurance of confidentiality of
nonpublic information and of the review process, make reports of
investigations and evaluations to the Board, and to do other
related activities for promoting a coordinated and effective peer
review process. Peer review agreements shall include provisions
assuring due process.
(c) Each society which enters a peer review agreement with
the Board shall establish and maintain a program for impaired
physicians licensed by the Board. The Academy, after entering a
peer review agreement with the Board, shall either enter an
agreement with the North Carolina Medical Society for the
inclusion of physician assistants in the Society's program for
impaired physicians, or shall establish and maintain the
Academy's own program for impaired physician assistants. The
purpose of the programs shall be to identify, review, and
evaluate the ability of those physicians and physician assistants
to function in their professional capacity and to provide
programs for treatment and rehabilitation. The Board may provide
funds for the administration of impaired physician and impaired
physician assistant programs and shall adopt rules with
provisions for definitions of impairment; guidelines for program
elements; procedures for receipt and use of information of
suspected impairment; procedures for intervention and referral;
monitoring treatment, rehabilitation, post-treatment support and
performance; reports of individual cases to the Board; periodic
reporting of statistical information; assurance of
confidentiality of nonpublic information and of the review
process.
(d) Upon investigation and review of a physician licensed
by the Board, or a physician assistant approved by the Board, or
upon receipt of a complaint or other information, a society which
enters a peer review agreement with the Board, or the Academy if
it has a peer review agreement with the Board, as appropriate,
shall report immediately to the Board detailed information about
any physician or physician assistant licensed or approved by the
Board if:
(1) The physician or physician assistant
constitutes an imminent danger to the public or to himself;
(2) The physician or physician assistant refuses to
cooperate with the program, refuses to submit to treatment, or is
still impaired after treatment and exhibits professional
incompetence; or
(3) It reasonably appears that there are other
grounds for disciplinary action.
(e) Any confidential patient information and other
nonpublic information acquired, created, or used in good faith by
the Academy or a society pursuant to this section shall remain
confidential and shall not be subject to discovery or subpoena in
a civil case. No person participating in good faith in the peer
review or impaired physician or impaired physician assistant
programs of this section shall be required in a civil case to
disclose any information acquired or opinions, recommendations,
or evaluations acquired or developed solely in the course of
participating in any agreements pursuant to this section.
(f) Peer review activities conducted in good faith pursuant
to any agreement under this section shall not be grounds for
civil action under the laws of this State and are deemed to be
State directed and sanctioned and shall constitute State action
for the purposes of application of antitrust laws. (1987, c. 859,
s. 15; 1993, c. 176, s. 1; 1995, c. 94, s. 23.)
§ 90-21.22A. Medical review committees.
(a) As used in this section, "medical review committee"
means a committee composed of health care providers licensed
under this Chapter that is formed for the purpose of evaluating
the quality of, cost of, or necessity for health care services,
including provider credentialing. "Medical review committee" does
not mean a medical review committee established under G.S. 131E-
95.
(b) A member of a duly appointed medical review committee
who acts without malice or fraud shall not be subject to
liability for damages in any civil action on account of any act,
statement, or proceeding undertaken, made, or performed within
the scope of the functions of the committee.
(c) The proceedings of a medical review committee, the
records and materials it produces, and the materials it considers
shall be confidential and not considered public records within
the meaning of G.S. 132-1, 131E-309, or 58-2-100; and shall not
be subject to discovery or introduction into evidence in any
civil action against a provider of health care services who
directly provides services and is licensed under this Chapter, a
PSO licensed under Article 17 of Chapter 131E of the General
Statutes, or a hospital licensed under Chapter 122C or Chapter
131E of the General Statutes or that is owned or operated by the
State, which civil action results from matters that are the
subject of evaluation and review by the committee. No person who
was in attendance at a meeting of the committee shall be required
to testify in any civil action as to any evidence or other
matters produced or presented during the proceedings of the
committee or as to any findings, recommendations, evaluations,
opinions, or other actions of the committee or its members.
However, information, documents, or records otherwise available
are not immune from discovery or use in a civil action merely
because they were presented during proceedings of the committee.
A member of the committee may testify in a civil action but
cannot be asked about his or her testimony before the committee
or any opinions formed as a result of the committee hearings.
(d) This section applies to a medical review committee,
including a medical review committee appointed by one of the
entities licensed under Articles 1 through 67 of Chapter 58 of
the General Statutes.
(e) Subsection (c) of this section does not apply to
proceedings initiated under G.S. 58-50-61 or G.S. 58-50-62. (1997-
519, s. 4.3; 1998-227, s. 3.)
§ 90-21.23. Election by State.
For the purpose of making applicable in the State the early
opt-in provisions of Title 4 of the "Health Care Quality
Improvement Act of 1986," P.L. 99-660, the State elects to
exercise on October 1, 1987, the provisions of Title 4, Section
411(c)(2)(A) of that act to promote good faith professional
review activities. (1987, c. 859, s. 19.)
ARTICLE 1E.
Certificate of Public Advantage.
§ 90-21.24. Findings.
The General Assembly of North Carolina makes the following
findings:
(1) That technological and scientific developments
in health care have enhanced the prospects for further
improvement in the quality of care provided to North Carolina
citizens.
(2) That the cost of improved technology and
improved scientific methods for the provision of health care
contributes substantially to the increasing cost of health care.
Cost increases make it increasingly difficult for physicians in
rural areas of North Carolina to offer care.
(3) That cooperative agreements among physicians,
hospitals, and others for the provision of health care services
may foster improvements in the quality of health care for North
Carolina citizens, moderate increases in cost, and improve access
to needed services in rural areas of North Carolina.
(4) That physicians are often in the best position
to identify and structure cooperative arrangements that enhance
quality of care, improve access, and achieve cost-efficiency in
the provision of care.
(5) That federal and State antitrust laws may
prohibit or discourage cooperative arrangements that are
beneficial to North Carolina citizens, despite their potential
for or actual reduction in competition, and that such agreements
should be permitted and encouraged.
(6) That competition as currently mandated by
federal and State antitrust laws should be supplanted by a
regulatory program to permit and encourage cooperative agreements
between physicians or between physicians, hospitals, and others,
that are beneficial to North Carolina citizens when the benefits
of cooperative agreements outweigh their disadvantages caused by
their potential or actual adverse effects on competition.
(7) That regulatory as well as judicial oversight
of cooperative agreements should be provided to ensure that the
benefits of cooperative agreements permitted and encouraged in
North Carolina outweigh any disadvantages attributable to any
reduction in competition likely to result from the agreements.
(1995, c. 395, s. 2.)
§ 90-21.25. Definitions.
As used in this Article, the following terms have the
meanings specified:
(1) "Attorney General" means the Attorney General
of the State of North Carolina, or any attorney to whom the
Attorney General delegates authority and responsibility to act
pursuant to this Article.
(2) "Cooperative agreement" means an agreement
among two or more physicians, or between a physician, hospital,
or any other person or persons, for the sharing, allocation, or
referral of patients, personnel, instructional programs, support
services and facilities, or medical, diagnostic, or laboratory
facilities or equipment, or procedures or other services
traditionally offered by physicians. Cooperative agreement shall
not include any agreement that would permit self-referrals of
patients by a health care provider that is otherwise prohibited
by law.
(3) "Department" means the North Carolina
Department of Health and Human Services.
(4) "Federal or State antitrust laws" means any and
all federal or State laws prohibiting monopolies or agreements in
restraint of trade, including, but not limited to, the federal
Sherman Act, Clayton Act, and Federal Trade Commission Act, and
the North Carolina laws codified in Chapter 75 of the General
Statutes.
(5) "Hospital" means any hospital required to be
licensed under Chapter 131E or 122C of the General Statutes.
(6) "Person" means any individual, firm,
partnership, corporation, association, public or private
institution, political subdivision, or government agency.
(7) "Physician" means an individual licensed to
practice medicine pursuant to Article 1 of this Chapter. (1995,
c. 395, s. 2; 1997-443, s. 11A.118(a).)
§ 90-21.26. Certificate of public advantage;
application.
(a) A physician and any person who is a party to a
cooperative agreement with a physician may negotiate, enter into,
and conduct business pursuant to a cooperative agreement without
being subject to damages, liability, or scrutiny under any State
antitrust law if a certificate of public advantage is issued for
the cooperative agreement, or in the case of activities to
negotiate or enter into a cooperative agreement, if an
application for a certificate of public advantage is filed in
good faith. It is the intention of the General Assembly that
immunity from federal antitrust laws shall also be conferred by
this statute and the State regulatory program that it
establishes.
(b) Parties to a cooperative agreement may apply to the
Department for a certificate of public advantage governing that
cooperative agreement. The application must include an executed
written copy of the cooperative agreement or letter of intent
with respect to the agreement, a description of the nature and
scope of the activities and cooperation in the agreement, any
consideration passing to any party under the agreement, and any
additional materials necessary to fully explain the agreement and
its likely effects. A copy of the application and all additional
related materials shall be submitted to the Attorney General at
the same time the application is made to the Department. (1995,
c. 395, s. 2.)
§ 90-21.27. Procedure for review; standards for
review.
(a) The Department shall review the application in
accordance with the standards set forth in subsection (b) of this
section and shall hold a public hearing with the opportunity for
the submission of oral and written public comments in accordance
with rules adopted by the Department. The Department shall
determine whether the application should be granted or denied
within 90 days of the date of filing of an application. Provided,
however, that the Department may extend the review period for a
specified period of time upon notice to the parties.
(b) The Department shall determine that a certificate of
public advantage should be issued for a cooperative agreement, if
it determines that the applicant has demonstrated by clear and
convincing evidence that the benefits likely to result from the
agreement outweigh the disadvantages likely to result from a
reduction in competition from the agreement.
(1) In evaluating the potential benefits of a
cooperative agreement, the Department shall consider whether one
or more of the following benefits may result from the cooperative
agreement:
a. Enhancement of the quality of health care
provided to North Carolina citizens;
b. Preservation of other health care
facilities in geographical proximity to the communities
traditionally served by those facilities;
c. Lower costs of, or gains in the efficiency
of delivering, health care services;
d. Improvements in the utilization of health
care resources and equipment;
e. Avoidance of duplication of health care
resources; and
f. The extent to which medically underserved
populations are expected to utilize the proposed services.
(2) In evaluating the potential disadvantages of a
cooperative agreement, the Department shall consider whether one
or more of the following disadvantages may result from the
cooperative agreement:
a. The extent to which the agreement may
increase the costs or prices of health care at the locations of
parties to the cooperative agreement;
b. The extent to which the agreement may have
an adverse impact on patients in the quality, availability, and
price of health care services;
c. The extent to which the agreement may
reduce competition among the parties to the agreement and the
likely effects thereof;
d. The extent to which the agreement may have
an adverse impact on the ability of health maintenance
organizations, preferred provider organizations, managed health
care service agents, or other health care payors to negotiate
optimal payment and service arrangements with hospitals,
physicians, allied health care professionals, or other health
care providers;
e. The extent to which the agreement may
result in a reduction in competition among physicians, allied
health professionals, other health care providers, or other
persons furnishing health care services; and
f. The availability of arrangements that are
less restrictive to competition and achieve the same benefits or
a more favorable balance of benefits over disadvantages
attributable to any reduction in competition.
(3) In making its determination, the Department may
consider other benefits or disadvantages that may be identified.
(1995, c. 395, s. 2; 1997-456, s. 27.)
§ 90-21.28. Issuance of a certificate.
If the Department determines that the likely benefits of a
cooperative agreement outweigh the likely disadvantages
attributable to reduction of competition as a result of the
agreement by clear and convincing evidence, and the Attorney
General has not stated any objection to issuance of a certificate
during the review period, the Department shall issue a
certificate of public advantage for the cooperative agreement at
the conclusion of the review period. Such certificate shall
include any conditions of operation under the agreement that the
Department, in consultation with the Attorney General, determines
to be appropriate in order to ensure that the cooperative
agreement and activities engaged in pursuant thereto are
consistent with this Article and its purpose to limit health care
costs. The Department shall include conditions to control prices
of health care services provided under the cooperative agreement.
Consideration shall be given to assure that access to health care
is provided to all areas of the State. The Department shall
publish its decisions on applications for certificates of public
advantage in the North Carolina Register. (1995, c. 395, s. 2.)
§ 90-21.29. Objection by Attorney General.
If the Attorney General is not persuaded that the applicant
has demonstrated by clear and convincing evidence that the
benefits likely to result from the agreement outweigh the likely
disadvantages of any reduction of competition to result from the
agreement as set forth in G.S. 90-21.27, the Attorney General
may, within the review period, state an objection to the issuance
of a certificate of public advantage and may extend the review
period for a specified period of time. Notice of the objection
and any extension of the review period shall be provided in
writing to the applicant, together with a general explanation of
the concerns of the Attorney General. The parties may attempt to
reach agreement with the Attorney General on modifications to the
agreement or to conditions in the certificate so that the
Attorney General no longer objects to issuance of a certificate.
If the Attorney General withdraws the objection and the
Department maintains its determination that a certificate should
be issued, the Department shall issue a certificate of public
advantage with any appropriate conditions as soon as practicable
following withdrawal of the objection. If the Attorney General
does not withdraw the objection, a certificate shall not be
issued. (1995, c. 395, s. 2.)
§ 90-21.30. Record keeping.
The Department shall maintain on file all cooperative
agreements for which certificates of public advantage are in
effect and a copy of the certificate, including any conditions
imposed. Any party to a cooperative agreement who terminates an
agreement shall file a notice of termination with the Department
within 30 days after termination. These files shall be public
records as set forth in Chapter 132 of the General Statutes.
(1995, c. 395, s. 2.)
§ 90-21.31. Review after issuance of
certificate.
If at any time following the issuance of a certificate of
public advantage, the Department or the Attorney General has
questions concerning whether the parties to the cooperative
agreement have complied with any condition of the certificate or
whether the benefits or likely benefits resulting from a
cooperative agreement may no longer outweigh the disadvantages or
likely disadvantages attributable to a reduction in competition
resulting from the agreement, the Department or the Attorney
General shall advise the parties to the agreement and either the
Department or the Attorney General shall request any information
necessary to complete a review of the matter. (1995, c. 395, s.
2.)
§ 90-21.32. Periodic reports.
(a) During the time that a certificate is in effect, a
report of activities pursuant to the cooperative agreement must
be filed every two years with the Department on or by the
anniversary day on which the certificate was issued. A copy of
the periodic report shall be submitted to the Attorney General at
the same time it is filed with the Department. A report shall
include all of the following:
(1) A description of the activities conducted
pursuant to the agreement.
(2) Price and cost information.
(3) The nature and scope of the activities pursuant
to the agreement anticipated for the next two years and the
likely effect of those activities.
(4) A signed certificate by each party to the
agreement that the benefits or likely benefits of the cooperative
agreement as conditioned continue to outweigh the disadvantages
or likely disadvantages of any reduction in competition from the
agreement as conditioned.
(5) Any additional information requested by the
Department or the Attorney General.
The Department shall give public notice in the North
Carolina Register that a report has been received. After notice
is given, the public shall have 30 days to file written comments
on the report and on the benefits and disadvantages of continuing
the certificate of public advantage. Periodic reports, public
comments, and information submitted in response to a request
shall be public records as set forth in Chapter 132 of the
General Statutes.
(b) Failure to file a periodic report required by this
section after notice of default, or failure to provide
information requested pursuant to a review under G.S. 90-21.31
are grounds for revocation of the certificate by the Attorney
General or the Department.
(c) The Department shall review each periodic report,
public comments, and information submitted in response to a
request under G.S. 90-21.31 to determine whether the advantages
or likely advantages of the cooperative agreement continue to
outweigh the disadvantages or likely disadvantages of any
reduction in competition from the agreement, and to determine
what, if any, changes in the conditions of the certificate should
be made. In the review the Department shall consider the benefits
and disadvantages set forth in G.S. 90-21.27. Within 60 days of
the filing of a periodic report, the Department shall determine
whether the certificate should remain in effect and whether any
changes to the conditions in the certificate should be made.
Provided, however, that the Department may extend the review
period an additional 30 days. If the Department or Attorney
General determines that the parties to the cooperative agreement
have not complied with any condition of the certificate, the
Department or the Attorney General shall revoke the certificate
and the parties shall be notified. If the certificate is revoked,
the parties shall be entitled to no benefits under this Article,
beginning on the date of revocation. If the Department determines
that the certificate should remain in effect and the Attorney
General has not stated any objection to the certificate remaining
in effect during the review period, the certificate shall remain
in effect subject to any changes in the conditions of the
certificate imposed by the Department. The parties shall be
notified in writing of the Department's decision and of any
changes in the conditions of the certificate. The Department
shall publish its decision and any changes in the conditions in
the North Carolina Register.
If the Department determines that the benefits or likely
benefits of the agreement and the unavoidable costs of
terminating the agreement do not continue to outweigh the
disadvantages or likely disadvantages of any reduction in
competition from the agreement, or if the Attorney General
objects to the certificate remaining in effect based upon a
review of the benefits and disadvantages set forth in G.S. 90-
21.27, the Department shall notify the parties to the agreement
in writing of its determination or the objections of the Attorney
General and shall provide a summary of any concerns of the
Department or Attorney General to the parties. (1995, c. 395, s.
2.)
§ 90-21.33. Right to judicial action.
(a) Any applicant or other person aggrieved by a decision
to issue or not issue a certificate of public advantage is
entitled to judicial review of the action or inaction in superior
court. Suit for judicial review under this subsection shall be
filed within 30 days of public notice of the decision to issue or
deny issuance of the certificate. To prevail in any action for
judicial review brought under this subsection, the plaintiff or
petitioner must establish that the determination by the
Department or the Attorney General was arbitrary or capricious.
(b) Any party or other person aggrieved by a decision to
allow the certificate to remain in effect or to make changes in
the conditions of the certificate is entitled to judicial review
of the decision in superior court. Suit for judicial review under
this subsection shall be filed within 30 days of public notice of
the decision to allow the certificate to remain in effect or to
make changes in the conditions of the certificate. To prevail in
any action for judicial review brought under this subsection, the
plaintiff or petitioner must establish that the determination by
the Department or the Attorney General was arbitrary or
capricious.
(c) If the Department or the Attorney General determines
the certificate should not remain in effect, the Attorney General
may bring suit in the Superior Court of Wake County on behalf of
the Department or on its own behalf to seek an order to authorize
the cancellation of the certificate. To prevail in the action,
the Attorney General must establish that the benefits resulting
from the agreement are outweighed by the disadvantages
attributable to reduction in competition resulting from the
agreement.
(d) In any action instituted under this section, the work
product of the Department or the Attorney General or his staff is
not a public record under Chapter 132 of the General Statutes and
shall not be discoverable or admissible, nor shall the Attorney
General or any member of the Attorney General's staff be
compelled to be a witness, whether in discovery or at any hearing
or trial. (1995, c. 395, s. 2.)
§ 90-21.34. Fees for applications and periodic
reports.
(a) The Department and the Attorney General shall establish
and collect administrative fees for filing of an application for
a certificate of public advantage based on the total cost of the
project for which the application is made, in an amount not to
exceed fifteen thousand dollars ($15,000), and an administrative
fee for filing each periodic report required to be filed in an
amount not to exceed two thousand five hundred dollars ($2,500).
The fee schedule established should generate sufficient revenue
to offset the costs of the program. An application filing fee
must be paid to the Department at the time an application for a
certificate of public advantage is submitted pursuant to G.S. 90-
21.26. A periodic report filing fee must be paid to the
Department at the time a periodic report is submitted to it
pursuant to G.S. 90-21.32.
(b) If the Department or the Attorney General determines
that consultants are needed to complete a review of an
application, an additional application fee may be established by
prior agreement with the applicants before the application is
considered. The amount of the additional fee may not exceed the
costs of contracting with the necessary consultants. The
additional fee shall not be considered in determining whether an
application fee exceeds the maximum application fee amount set in
subsection (a) of this section. (1995, c. 395, s. 2.)
§ 90-21.35. Department and Attorney General
authority.
The Department and Attorney General shall adopt rules to
conduct review of applications for certificates of public
advantage and of periodic reports filed in connection therewith
and to bring actions in the Superior Court of Wake County as
required under G.S. 90-21.33. This Article shall not limit the
authority of the Attorney General under federal or State
antitrust laws. (1995, c. 395, s. 2.)
§ 90-21.36. Effects of certificate of public
advantage; other laws.
(a) Activities conducted pursuant to a cooperative
agreement for which a certificate of public advantage has been
issued are immunized from challenge or scrutiny under State
antitrust laws. In addition, conduct in negotiating and entering
into a cooperative agreement for which an application for a
certificate of public advantage is filed in good faith shall be
immune from challenge or scrutiny under State antitrust laws,
regardless of whether a certificate is issued. It is the
intention of the General Assembly that this Article shall also
immunize covered activities from challenge or scrutiny under any
noncompetition provisions of the federal antitrust law.
(b) Nothing in this Article shall exempt physicians or
others from compliance with State or federal laws governing
certificate of need, licensure, or other regulatory requirements.
(c) Any dispute among the parties to cooperative agreement
concerning its meaning or terms is governed by normal principles
of contract law. (1995, c. 395, s. 2.)
ARTICLE 1F.
Psychotherapy Patient/Client Sexual Exploitation Act.
§ 90-21.41. Definitions.
The following definitions apply in this Article:
(1) Client. -- A person who may also be called
patient or counselee who seeks or obtains psychotherapy, whether
or not the person is charged for the service. The term "client"
includes a former client.
(2) Psychotherapist. -- A psychiatrist licensed in
accordance with Article 1 of Chapter 90 of the General Statutes,
a psychologist as defined in G.S. 90-270.2(9), a licensed
professional counselor as defined in G.S. 90-330(a)(2), a
substance abuse professional as defined in G.S. 90-113.31(8), a
social worker engaged in a clinical social work practice as
defined in G.S. 90B-3(6), a fee-based pastoral counselor as
defined in G.S. 90-382(4), a licensed marriage and family
therapist as defined in G.S. 90-270.47(3), or a mental health
service provider, who performs or purports to perform
psychotherapy.
(3) Psychotherapy. -- The professional treatment or
professional counseling of a mental or emotional condition that
includes revelation by the client of intimate details of thoughts
and emotions of a very personal nature to assist the client in
modifying behavior, thoughts and emotions that are maladjustive
or contribute to difficulties in living.
(4) Sexual exploitation. -- Either of the
following, whether or not it occurred with the consent of a
client or during any treatment, consultation, evaluation,
interview, or examination:
a. Sexual contact which includes any of the
following actions:
1. Sexual intercourse, cunnilingus,
fellatio, anal intercourse, or any intrusion, however slight,
into the oral, genital, or anal openings of the client's body by
any part of the psychotherapist's body or by any object used by
the psychotherapist for the purpose of sexual stimulation or
gratification of either the psychotherapist or the client; or any
intrusion, however slight, into the oral, genital, or anal
openings of the psychotherapist's body by any part of the
client's body or by any object used by the client for the purpose
of sexual stimulation or gratification of either the
psychotherapist or the client, if agreed to, or not resisted by
the psychotherapist.
2. Kissing of, or the intentional
touching by the psychotherapist of, the client's lips, genital
area, groin, inner thigh, buttocks, or breast, or of the clothing
covering any of these body parts, for the purpose of sexual
stimulation or gratification of either the psychotherapist or the
client, or kissing of, or the intentional touching by the client
of, the psychotherapist's lips, genital area, groin, inner thigh,
buttocks, or breast, or of the clothing covering any of these
body parts, if agreed to or not resisted by the psychotherapist,
for the purpose of sexual stimulation or gratification to either
the psychotherapist or the client.
b. Any act done or statement made by the
psychotherapist for the purpose of sexual stimulation or
gratification of the client or psychotherapist which includes any
of the following actions:
1. The psychotherapist's relating to the
client the psychotherapist's own sexual fantasies or the details
of the psychotherapist's own sexual life.
2. The uncovering or display of breasts
or genitals of the psychotherapist to the client.
3. The showing of sexually graphic
pictures to the client for purposes other than diagnosis or
treatment.
4. Statements containing sexual innuendo,
sexual threats, or sexual suggestions regarding the relationship
between the psychotherapist and the client.
(5) Sexual history. -- Sexual activity of the
client other than that conduct alleged by the client to
constitute sexual exploitation in an action pursuant to this
Article.
(6) Therapeutic deception. -- A representation by a
psychotherapist that sexual contact with the psychotherapist is
consistent with or part of the client's treatment. (1998-213, s.
1.)
§ 90-21.42. Action for sexual exploitation.
Any client who is sexually exploited by the client's
psychotherapist shall have remedy by civil action for sexual
exploitation if the sexual exploitation occurred:
(1) At any time between and including the first
date and last date the client was receiving psychotherapy from
the psychotherapist;
(2) Within three years after the termination of the
psychotherapy; or
(3) By means of therapeutic deception. (1998-213,
s. 1.)
§ 90-21.43. Remedies.
A person found to have been sexually exploited as provided
under this Article may recover from the psychotherapist actual or
nominal damages, and reasonable attorneys' fees as the court may
allow. The trier of fact may award punitive damages in accordance
with the provisions of Chapter 1D of the General Statutes. (1998-
213, s. 1.)
§ 90-21.44. Scope of discovery.
(a) In an action under this Article, evidence of the
client's sexual history is not subject to discovery, except under
the following conditions:
(1) The client claims impairment of sexual
functioning.
(2) The psychotherapist requests a hearing prior to
conducting discovery and makes an offer of proof of the relevancy
of the evidence, and the court finds that the information is
relevant and that the probative value of the history outweighs
its prejudicial effect.
(b) The court shall allow the discovery only of specific
information or examples of the client's conduct that are
determined by the court to be relevant. The court order shall
detail the information or conduct that is subject to discovery.
(1998-213, s. 1.)
§ 90-21.45. Admissibility of evidence of sexual
history.
(a) At the trial of an action under this Article, evidence
of the client's sexual history is not admissible unless:
(1) The psychotherapist requests a hearing prior to
trial and makes an offer of proof of the relevancy of the sexual
history; and
(2) The court finds that, in the interest of
justice, the evidence is relevant and that the probative value of
the evidence substantially outweighs its prejudicial effect.
(b) The court shall allow the admission only of specific
information or examples of insta