Chapter Med 10

Register November 2002 No. 563

Chapter Med 10

UNPROFESSIONAL CONDUCT

Med 10.01   Authority and intent.

Med 10.02   Definitions.

Med 10.03   Unprofessional conduct.

Ch. Med 10 Note Note: Chapter Med 16 as it existed on October 31, 1976 was repealed and a new Chapter Med 10 was created effective November 1, 1976.

Med 10.01 Med 10.01 Authority and intent.

Med 10.01(1) (1) The definitions of this chapter are adopted by the medical examining board pursuant to the authority delegated by ss. 15.08 (5) 227.11, and 448.40, Stats., for the purposes of ch. 448, Stats.

Med 10.01(2) (2) Physicians act with a high level of independence and responsibility, often in emergencies. Every physician represents the medical profession in the community and must do so in a manner worthy of the trust bestowed upon the physician and the profession. The minimally competent practice of medicine and surgery require that care of the patient is paramount. Physicians must therefore act with honesty, respect for the law, reasonable judgment, competence, and respect for patient boundaries.

Med 10.01 History History: Cr. Register, October, 1976, No. 250, eff. 11-1-76; correction made under s. 13.93 (2m) (b) 7., Stats., Register, May, 1989, No. 401; CR 13-008: am. (title), renum. to (1), cr. (2) Register September 2013 No. 693 eff. 10-1-13.

Med 10.02 Med 10.02 Definitions. For the purposes of this chapter:

Med 10.02(1) (1) “Adequate supervision” means a physician should be competent to perform the delegated medical act, and must have reasonable evidence that the supervised individual is minimally competent to perform the act under the circumstances.

Med 10.02(2) (2) “Board” means the medical examining board.

Med 10.02(2m) (2m) “Chaperone” means an individual whom a physician requests to be present during a clinical examination that exposes the breasts, genitals, or rectal area, and who can serve as a witness to the examination taking place should there be any misunderstanding or concern for sexual misconduct.

Med 10.02(3) (3) “Intimate parts” has the meaning given in s. 939.22 (19), Stats.

Med 10.02(4) (4) “License” means any license, permit, certificate, or registration issued by the board or by any other credentialing jurisdiction with the authority to grant credentials to practice medicine and surgery, or any other practice authorized within ch. 448, Stats.

Med 10.02(4m) (4m) “Observer” means an individual chosen by the patient to be present during an examination or inspection that exposes the breasts, genitals, or rectal area. A patient’s adult family member, legal guardian, or legal custodian is presumed to be able to act as an observer if the patient is twelve years of age or under.

Med 10.02(5) (5) “Patient health care records” has the meaning given in s. 146.81 (4), Stats.

Med 10.02(6) (6) “Sexual contact” has the meaning given in s. 948.01 (5), Stats.

Med 10.02(7) (7) “Sexually explicit conduct” has the meaning given in s. 948.01 (7), Stats.

Med 10.02 History History: Cr. Register, October, 1976, No. 250, eff. 11-1-76; cr. (2)(s), Register, October, 1977, No. 262, eff. 11-1-77; am. (2) (m), Register, April, 1978, No. 268, eff. 5-1-78; am. (2) (s), Register, May, 1978, No. 269, eff. 6-1-78; reprinted to correct History note, Register, June, 1980, No. 294; r. and recr. (2) (o), cr. (2) (t), Register, September, 1985, No. 357, eff. 10-1-85; cr. (2) (u), Register, April, 1987, No. 376, eff. 5-1-87; cr. (2) (v), Register, January, 1988, No. 385, eff. 2-1-88; am. (2) (s), Register, March, 1990, No. 411, eff. 3-1-90; cr. (2) (x), Register, September, 1990, No. 417, eff. 10-1-90; cr. (2) (w), Register, October, 1990, No. 418, eff. 11-1-90; am. (2) (q), Register, August, 1992, No. 440, eff. 9-1-92; cr. (2) (y), Register, September, 1992, No. 441, eff. 10-1-92; cr. (2) (z), Register, May, 1995, No. 473, eff. 6-1-95; cr. (2) (za), Register, April, 1996, No. 484, eff. 5-1-96; am. (2) (q), Register, September, 1996, No. 489, eff. 10-1-96; corrections made under s. 13.93 (2m) (b) 7., Stats., Register, February, 1997, No. 494; cr. (2) (zb), Register, May, 1998, No. 509, eff. 6-1-98; r. (2) (v) and (y), am. (2) (za), Register, December, 1999, No. 528, eff. 1-1-00; CR 01-031: am. (2) (s) (intro.) and (zb) (intro.), Register October 2001 No. 550, eff. 11-1-01; CR 02-008: cr. (2) (zc), CR 02-055: cr. (2) (zd), Register November 2002 No. 563, eff. 12-1-02; CR 13-008: r. and recr. Register September 2013 No. 693, eff. 10-1-13; CR 22-063: cr. (2m), (4m) Register September 2023 No. 813, eff. 10-1-23.

Med 10.03 Med 10.03 Unprofessional conduct. “Unprofessional conduct” includes the following, or aiding or abetting the same:

Med 10.03(1) (1) Dishonesty and character.

Med 10.03(1)(a) (a) Violating or attempting to violate ch. 448, Stats., or any provision, condition, or term of a valid rule or order of the board.

Med 10.03(1)(b) (b) Knowingly engaging in fraud or misrepresentation or dishonesty in applying, for or procuring a medical license, by examination for a medical license, or in connection with applying for or procuring periodic renewal of a medical license, or in otherwise maintaining such licensure.

Med 10.03(1)(c) (c) Knowingly giving false, fraudulent, or deceptive testimony while serving as an expert witness.

Med 10.03(1)(d) (d) Employing illegal or unethical business practices.

Med 10.03(1)(e) (e) Knowingly, negligently, or recklessly making any false statement, written or oral, in the practice of medicine and surgery which creates an unacceptable risk of harm to a patient, the public, or both.

Med 10.03(1)(f) (f) Engaging in any act of fraud, deceit, or misrepresentation, including acts of omission to the board or any person acting on the board’s behalf.

Med 10.03(1)(g) (g) Obtaining any fee by fraud, deceit, or misrepresentation.

Med 10.03(1)(h) (h) Directly or indirectly giving or receiving any fee, commission, rebate, or other compensation for professional services not actually and personally rendered, unless allowed by law. This prohibition does not preclude the legal functioning of lawful professional partnerships, corporations, or associations.

Med 10.03(1)(i) (i) Representing or claiming as true the appearance that a physician possesses a medical specialty certification by a board recognized certifying organization, such as the American Board of Medical Specialties, or the American Osteopathic Association, if it is not true.

Med 10.03(1)(j) (j) Engaging in uninvited in-person solicitation of actual or potential patients who, because of their particular circumstances, may be vulnerable to undue influence.

Med 10.03(1)(k) (k) Engaging in false, misleading, or deceptive advertising.

Med 10.03(1)(L) (L) Failure to adequately supervise delegated medical acts performed by licensed or unlicensed personnel.

Med 10.03(2) (2) Direct patient care violations.

Med 10.03(2)(a) (a) Practicing or attempting to practice under any license when unable or unwilling to do so with reasonable skill and safety. A certified copy of an order issued by a court of competent jurisdiction finding that a person is mentally incompetent is conclusive evidence that the physician was, for any period covered by the order, unable to practice medicine and surgery with reasonable skill and safety.

Med 10.03(2)(b) (b) Departing from or failing to conform to the standard of minimally competent medical practice which creates an unacceptable risk of harm to a patient or the public whether or not the act or omission resulted in actual harm to any person.

Med 10.03(2)(c) (c) Prescribing, ordering, dispensing, administering, supplying, selling, giving, or obtaining any prescription medication in any manner that is inconsistent with the standard of minimal competence.

Med 10.03(2)(d) (d) Performing or attempting to perform any surgical or invasive procedure on the wrong patient, or at the wrong anatomical site, or performing the wrong procedure on any patient.

Med 10.03(2)(e) (e) Administering, dispensing, prescribing, supplying, or obtaining a controlled substance as defined in s. 961.01 (4), Stats., other than in the course of legitimate professional practice, or as otherwise permitted by law.

Med 10.03(2)(e)1. 1. Except as otherwise provided by law, a certified copy of a relevant finding, order, or judgment by a state or federal court or agency charged with making legal determinations shall be conclusive evidence of its findings of facts and conclusions of law.

Med 10.03(2)(e)2. 2. A certified copy of a finding, order, or judgment demonstrating the entry of a guilty plea, nolo contendere plea or deferred adjudication, with or without expungement, of a crime substantially related to the practice of medicine and surgery is conclusive evidence of a violation of this paragraph.

Med 10.03(2)(f) (f) Engaging in sexually explicit conduct, sexual contact, exposure, gratification, or other sexual behavior with or in the presence of a patient, a patient’s immediate family, or a person responsible for the patient’s welfare.

Med 10.03(2)(f)1. 1. Sexual motivation may be determined from the totality of the circumstances and shall be presumed when the physician has contact with a patient’s intimate parts without legitimate medical justification for doing so.

Med 10.03(2)(f)2. 2. For the purpose of this paragraph, an adult receiving treatment shall be considered a patient for 2 years after the termination of professional services.

Med 10.03(2)(f)3. 3. If the person receiving treatment is a child, the person shall be considered a patient for the purposes of this paragraph for 2 years after termination of services or for 2 years after the patient reaches the age of majority, whichever is longer.

Med 10.03(2)(fm) (fm)

Med 10.03(2)(fm)1. 1. If a physician who practices in a hospital or works for any other employer fails to comply with the rules established by their hospital or employer regarding chaperones or other observers in patient examinations, then the failure to follow such rules during an exam in which a violation of par. (f) is alleged may be considered by the board in determining whether the alleged misconduct occurred.

Med 10.03(2)(fm)2. 2. Physicians who are self-employed or in other practice settings that do not involve hospitals or employers shall establish written procedures for the use of chaperones or other observers in patient examinations and shall comply with these procedures once established.

Med 10.03(2)(fm)3. 3. A copy of any rules and procedures, or summary thereof, regarding the physician’s use of chaperones or other observers shall be made available and accessible to all patients who are likely to receive a non-emergency examination of the breasts, genitals, or rectal area.

Med 10.03(2)(fm)4. 4. A physician shall not be found in violation of this section because of the failure of a third-party to create a policy regarding chaperones, or to allow posting or notification of any policy regarding chaperones.

Med 10.03(2)(g) (g) Engaging in any sexual contact or conduct with or in the presence of a patient or a former patient who lacks the ability to consent for any reason, including medication or psychological or cognitive disability.

Med 10.03(2)(h) (h) Engaging in repeated or significant disruptive behavior or interaction with physicians, hospital personnel, patients, family members, or others that interferes with patient care or could reasonably be expected to adversely impact the quality of care rendered.

Med 10.03(2)(i) (i) Knowingly, recklessly, or negligently divulging a privileged communication or other confidential patient health care information except as required or permitted by state or federal law.

Med 10.03(2)(j) (j) Performing an act constituting the practice of medicine and surgery without required informed consent under s. 448.30, Stats.