Del. Code 24, § 1734 : Professions And Occupations — Medical Practice Act — Disciplinary Regulation; Proceedings Of The Board — Hearings Date: 2 Sep 2016 TEXT PDF Current through 2016 Legislative Session, Act 399 (a) Procedure. -- (1) Upon the mailing of a formal complaint by the Executive Director pursuant to this chapter, the Executive Director shall appoint an examiner pursuant to § 1713 of this title or a hearing panel composed of 3 unbiased members of the Board, the 3 members being 2 physician members and 1 public member if practical, who shall hear the evidence concerning the alleged charges. The hearing panel shall convene to hear the evidence no more than 90 days after the Board accepts a formal complaint unless the hearing panel, in its discretion, grants a continuance of the hearing date. All evidence at the hearing must be taken under oath or affirmation, but technical rules of evidence do not apply. After the evidence has been heard by the hearing panel, the panel may convene in executive session for consideration of the evidence presented at the hearing and for purposes permitted by § 10004 of Title 29, and shall make written findings of fact, conclusions of law, and a recommendation for a proper disciplinary action, if 1 is warranted. Only evidence presented at the hearing may be considered by the hearing panel in reaching its findings of fact and conclusions of law. The findings of fact made by the hearing panel are binding on the parties appearing before it and on the Board. If the hearing panel finds that the allegations made in the complaint are not supported by the evidence, it shall so indicate to the Board, together with its recommendation that no further action be taken and that the person complained about be exonerated of all charges. If a majority of the members of the Board who consider the matter, excluding members who participated in the investigation of the complaint and members on the hearing panel and members who are otherwise biased, vote to accept the hearing panel's conclusions of law and recommendation, no further proceedings may be held before the Board. However, if a majority of the members of the Board who consider the matter, excluding any members who participated in the investigation of the complaint and members on the hearing panel and members who are otherwise biased, vote to reject the hearing panel's conclusions of law and recommendation, a formal hearing must be held before the Board to enable the Board to make its own conclusions of law and determine what discipline, if any, should be imposed. In such a case, the hearing panel's findings of fact are binding upon the Board. (2) If the hearing panel finds that any of the factual allegations made in the complaint are supported by the evidence it has considered, the Board, excluding members who participated in the investigation of the complaint and members on the hearing panel and members who are otherwise biased, will consider the findings of fact and conclusions of law made by the hearing panel at a formal hearing. (3) A formal hearing must be held within 90 days after the issuance of the written findings of facts and conclusions of law of the hearing panel pursuant to this subsection; provided, however, that if the hearing panel finds that the person complained about presents a clear and imminent danger to the public health by that person's continued practice of medicine, then the full Board may meet for the formal hearing as soon as possible, but only upon 3 days' written notice of the formal hearing being provided to the person or to that person's attorney. No less than 7 affirmative votes are necessary in order for disciplinary action to be taken by the Board. Upon reaching its conclusions of law and determining the appropriate disciplinary action, if any, the Board shall issue a written decision and order in accordance with § 10128 of Title 29. The decision and order must be signed by the Board's President, or, if the President is not available, by another officer of the Board. (b) Open hearings. -- A hearing on a complaint conducted by a hearing panel or examiner is open to the public, except the Board may conduct executive session for deliberations and purposes permitted by § 10004 of Title 29. A formal hearing on a complaint before the Board is open to the public in accordance with the provisions of § 10004 of Title 29. (c) Transcript of proceedings. -- A stenographic transcript must be made of the formal hearings of the Board and of the hearings of the Board's hearing panels or examiner. The person complained about is entitled, upon that person's own request, to obtain a copy of the transcript at the person's own expense. (d) Rights of respondent. -- The person complained about is entitled to be represented by counsel before a hearing panel or examiner and before the Board. The person complained about also has the right to cross-examine witnesses against the person, the right to present that person's own witnesses, and the right to introduce evidence at the hearing. In addition, the person complained about has the right to compel the issuance of a subpoena for the attendance of witnesses to appear and testify or for the production of books, records, or other documents at the hearing. (e) Conduct of hearing before the hearing panel. -- An attorney from the Office of the Attorney General shall present evidence in support of the allegations contained in the formal complaint. The attorney may call witnesses and cross-examine any witnesses called on behalf of the person complained about. A member of the Board who participated in the investigation of the complaint under consideration or a member who is biased may not sit on the hearing panel or take part in the deliberations or decisions of the hearing panel. To find that a fact or allegation is supported by evidence, the panel members must unanimously agree. The hearing panel shall make its findings of fact and conclusions of law based solely upon the evidence presented to it at the hearing. (f) Conduct of hearing before the examiner. -- An attorney from the Office of the Attorney General shall present evidence in support of the allegations contained in the formal complaint. The attorney may call witnesses and cross-examine any witnesses called on behalf of the person complained about. The examiner may administer oaths, examine witnesses and receive evidence in any locality. The testimony or evidence so taken or received shall have the same force and effect as if taken or received by the Board, or by a hearing panel pursuant to §§ 1713(a)(15) and 1734 of this title. Upon completion of such hearing or the taking of such testimony and evidence, the examiner shall submit to the Board the examiner's findings and recommendations thereon, which findings and recommendations shall be considered by the Board and such action taken with respect thereto by the Board as it decides to be proper. (g) Conduct of formal hearing before the Board. -- The findings of fact made by a hearing panel on a complaint are binding upon the Board at a formal hearing on the same complaint. At a formal hearing, the Board may not consider additional evidence. The Board shall deliberate and reach its own conclusions of law based upon the findings of fact made by the hearing panel. The Board shall consider the hearing panel's conclusions of law, but is not bound by them. To adopt conclusions of law, 7 Board members must vote in favor of them. After adopting its conclusions of law, the Board shall determine what disciplinary action, if any, against the person complained about is appropriate, based solely upon the record before it. To impose disciplinary action, affirmative votes by the majority of the Board members who considered the matter, but in every case no less than 7 affirmative votes are necessary. The Executive Director, Board members who participated in the investigation of the complaint under consideration, the members of the hearing panel, and any Board members who are otherwise biased may not participate in the deliberations of the Board concerning a complaint investigated by the Executive Director. (h) Written decision and order. -- Upon reaching its conclusion of law and determining the appropriate disciplinary action, if any, the Board shall issue a written decision and order in accordance with § 10128 of Title 29. The order must restate the factual findings of the hearing panel, but need not summarize the evidence presented. However, notwithstanding the provisions of § 10128(c) of Title 29, the decision and order may be issued over the signature of only the President or other officer of the Board. The decision and order must be sent by certified mail, return receipt requested, to the person complained about, with a copy to the Executive Director. (i) Upon receiving a decision and order pursuant to subsection (h) of this section, the Executive Director shall file the required disciplinary action reports to data banks. Del. C. § 1734 60 Del. Laws, c. 462, § 1; 61 Del. Laws, c. 68, § 7; 64 Del. Laws, c. 327, §4; 64 Del. Laws, c. 477, §6; 65 Del. Laws, c. 66, §1; 67 Del. Laws, c. 226, §14; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 102, § 21; 75 Del. Laws, c. 141, § 1; 77 Del. Laws, c. 321, § 6; 77 Del. Laws, c. 325, §§ 15 - 19.;