Colorado Medical Society

WHEREAS, the House of Delegates at the 2004 Annual Meeting referred Res-22-P, Change of Bylaws – Qualifications for Medical Society Members, and Res-23-A, Change of Bylaws – Disciplinary Action and Sanctions, to the Board of Directors, and

WHEREAS, the Board of Directors referred these resolutions to the Constitution & Bylaws Committee, and

WHEREAS, the Constitution & Bylaws Committee, after reviewing the appropriate chapters, sought legal counsel advice, and

WHEREAS, legal counsel submitted revisions to Chapter I and Chapter VII, therefore be it

RESOLVED, that the Bylaws be amended as follows:

Chapter I, Membership

Section 3. Classes of Members

~~(2) Active Membes Emeritus: An Active member may apply for Emeritus Classification in any of the following circumstances~~:

~~Section 5. Determination of Qualifications for Membership~~

a. Component Societies as Judges: Component societies shall, subject to the eligibility requirements stated below, be the judges of the qualifications of any applicant for membership. In considering an application, the component society shall receive and consider relevant information, which it may obtain from the executive office of Colorado Medical Society, the AMA Biographical Department, or other sources, provided that due process is accorded the applicant.

b. Eligibility Requirements: Membership in Colorado Medical Society and its component societies shall not be denied or abridged because of sex, color, creed, race, religion, or ethnic origin. To be eligible for Active Membership, all of the following requirements must be met:

~~(1) The applicant must be of reputable character.~~

(2) The applicant must be licensed or otherwise legally qualified to practice medicine in the State of Colorado. The applicant may not hold a license which is currently revoked or suspended by any physicians’ licensing authority, in Colorado or elsewhere.

~~(3) The applicant must furnish proof of his or her practice of medicine in accordance with proper ethical standards, including the practice of scientific medicine.~~

~~(4) The applicant must furnish proof of competent practice as a physician, in accordance with generally accepted standards of medical care.~~

(5) The applicant must furnish proof of an acceptable physical, mental, and emotional condition, free of any condition that would significantly impair capability of providing an acceptable standard of medical care.

(6) The Medical Student or Osteopathy Student application must be enrolled in Liaison Committee for Medical Education Accredited Schools of Medicine or American Osteopathy Association Accredited School of Osteopathy and be in training in Colorado.

c. Proof of eligibility: An applicant for Active membership shall have the burden of proving that he or she meets the eligibility requirements stated above. The applicant may be required to make a full disclosure of all relevant information pertaining to qualifications, and to indicate the sources from which such information can be verified. The component society may solicit any additional information concerning these qualifications. The component society may establish other criteria for membership as long as uniformly applied to all applicants.

d. Component Societies aware of information pertaining to the qualifications of an applicant or member shall disclose such information to the credentials committee of other Component Societies or CMS. Relevant information includes information with respect to any past and pending complaints, investigations, disciplinary actions, grievance review proceedings, and grievance review actions.

~~Section 6. Application for Membership~~

a. Procedures for Application: Before action is taken by any component society upon an application for membership by a physician, a completed application form shall have been submitted by the component society to the Colorado Medical Society, and the form shall have been returned to the component society together with such information the Society’s Executive Office and the Biographic Department of the American Medical Association may be able to supply as an aid to the component society in determining the eligibility of the applicant.

b. Basis for Decision on Application: The decision of the component society upon the application shall be made on the basis of a fair and objective consideration of the information obtained relative to the applicant’s qualifications in accordance with eligibility requirements. Evidence which is speculative in nature or which fails to meet the requirements for reliability as commonly applied in administrative hearings shall not be considered.

c. Process for Consideration of Application: The application shall be referred by the component society to a component society credentials committee of not less than three nor more than nine members, who shall study the application and make such investigation as may be appropriate to determine the qualifications of the applicant and whose action on such application shall constitute the action of the component itself. Such committee shall proceed with all due diligence, and shall complete its consideration as soon as reasonably possible under the existing circumstances. Rules of due process shall be followed, which shall include:

(1) The disclosure to the applicant of any adverse information which could form a basis for rejection of the application, and allowance of full opportunity for the applicant to respond. As a condition, however, to the consideration of an application for membership, the component society may require that the applicant execute a waiver and hold harmless agreement under which he or she agrees to waive any and all claims, of every kind or description, which the applicant may or could have against the Colorado Medical Society, any of its Component Societies or any other person or organization furnishing information believed to be true and relevant to the application, and under which the applicant agrees to indemnify and hold harmless the Colorado Medical Society, any of its Component Societies and any such other person or organization furnishing information as indicated above against any such claim, and all costs and expenses, including attorney’s fees, in connection therewith; provided that such a waiver or hold harmless agreement shall not require the applicant to relinquish the right to make legally valid claim against any person for false and malicious communication defamatory to the applicant.

~~(2) The right of the applicant to be heard and to be represented by counsel if desired.~~

~~(3) The right to appeal to the Council on Ethical and Judicial Affairs from rejection of the application.~~

d. Detailed Rules for Processing Membership Applications: The Board of Directors may adopt rules, not inconsistent with these Bylaws, providing in detail for the processing of membership applications.

e. Change of Component Society Membership: A member who wishes to change the major professional office from the jurisdiction of one component society to the jurisdiction of another component society and who wishes to change membership to the component society having jurisdiction over the new office shall submit a transfer request to the office of the current component society. When such member wishes to change component membership, a form prepared by the Colorado Medical Society shall be completed and submitted to the appropriate state and component societies. Details for processing change from one component society to another shall be provided in rules adopted by the Colorado Medical Society Board of Directors.

The information to be provided to the new component society shall include written verification from the member's present component society as to whether the physician is then in good standing in that society, and such other facts about the membership as may be needed, including information with respect to any past and pending complaints, investigations, disciplinary actions, grievance review proceedings and grievance review actions. The new Component Society shall solicit further information from the member's present Component Society concerning such matters. The member's present Component Society may disclose such information to the new Component Society with or without solicitation from the new Component Society. The application shall then be reviewed promptly by the new component society, and acted upon in accordance with the eligibility for membership requirements as set forth in Section 5 of Chapter 1 of the Bylaws; provided, however, that, if the applicant is then under suspension for nonpayment of dues, these dues shall be paid to the new component society, and any local or state delinquent assessment must be paid in full to the former component or state society before an application is accepted.

f. Orientation of New Members: Information to orient new Active Members of the Society in the duties, privileges, and obligation of membership, shall be provided under the supervision of the Board of Directors in a form the Board deems appropriate to the needs of the Society and its new members, as approved by the Board of Directors.

~~g. Principles of Medical Ethics: An applicant must be provided with a copy of and subscribe to the adopted Principles of Medical Ethics of the Colorado Medical~~ ~~Society and shall recognize the CMS Council on Ethical and Judicial Affairs as the final authority to interpret any disputed points of ethics.~~

Section 7. Application by Expelled Physician or Physician Whose License has been Revoked or Suspended: If an applicant shall have been expelled from membership in this Society or from any other constituent of the American Medical Association, on the basis of misconduct, or if the applicant shall have been the subject of disciplinary action resulting in revocation or suspension of his or her license to practice medicine, in Colorado or elsewhere, or if the applicant shall have been convicted of a felony in Colorado or elsewhere, then the component society shall defer action on the application and shall submit the same to the Council on Ethical and Judicial Affairs, with such recommendations, if any, as the component society deems warranted, for review by the Council on Ethical and Judicial Affairs. The Council on Ethical and Judicial Affairs may consider the application on the basis of the information submitted or may call for further information, and in due course may approve or disapprove the application. Unless and until the Council on Ethical and Judicial Affairs shall have approved the applicant’s eligibility for membership, and shall have so notified the secretary of the component society, no further action may be taken by the component society on the application.

~~Section 8. Expulsion and Disqualification of Members~~

a. Effect of Conviction of Felony, or Revocation or Surrender Other than by Non-renewal, or Suspension of License: A member who has been convicted of a felony or whose license to practice has been revoked or surrendered other than by non-renewal shall be expelled from membership in the component society and this Society automatically, as of the date of conviction or revocation. If any member’s license to practice medicine shall be suspended, such member shall automatically be disqualified during the period of such suspension or surrender other than by non-renewal from exercising any rights or privileges as a member of a component society or of this Society; provided, however, that nothing herein shall preclude proceedings before, or discipline (including expulsion from membership) by the Council on Ethical and Judicial Affairs based on the same grounds on which the license was so suspended. This section shall not apply to a member who has been suspended for nonpayment of the annual registration fee as required by law, unless such member shall within thirty (30) days of such suspension fail to have his or her license reinstated, nor shall this section apply to a member whose license is not renewed because of retirement. Any member disqualified under this section, whose license to practice medicine in the State of Colorado has been restored, may reapply for membership in Colorado Medical Society subject to the provisions of Section 7 of this Chapter.

b. Effect of License Probation: A member whose license has been placed on probation shall not automatically be expelled or disqualified from membership in a component society of this Society; provided, however, that nothing herein shall preclude proceedings before, or discipline by (including expulsion from membership) the Council on Ethical and Judicial Affairs based on the same grounds on which the license was placed on probation.

~~Section 9. Termination of Membership~~

~~a. Expulsion from any component society, after due proceedings have been conducted, upon becoming final, terminates membership in this Society of the~~ ~~member so expelled. There shall be no refund of dues or assessments to an expelled member.~~

b. Any member of a component society who has been judged guilty by the component society of gross misconduct as a physician or a violation of any of the provisions of the Bylaws or principles of professional conduct of that society or of the Society’s code of ethics, may be subject to censure, probation, suspension, or expulsion from that society by such component society.

SECTION 3. CLASSES OF MEMBERS

(2) ACTIVE MEMBERS EMERITUS: A PHYSICIAN WHO HOLDS A LICENSE OR IS OTHERWISE LEGALLY QUALIFIED TO PRACTICE MEDICINE IN COLORADO, OR ANY OTHER STATE, MAY APPLY FOR EMERITUS CLASSIFICATION IN ANY OF THE FOLLOWING CIRCUMSTANCES:

Section 5. Determination of Qualifications for Membership

b. Eligibility Requirements: Membership in Colorado Medical Society and its component societies shall not be denied or abridged because of GENDER, color, creed, race, religion, or ethnic origin. To be eligible for Active Membership, all of the following requirements must be met:

(1) The applicant must be licensed or otherwise legally qualified to practice medicine in the State of Colorado UNLESS OTHERWISE EXCEPTED BY THESE BYLAWS. If the applicant holds or has held a license in any other state, such license must not have been revoked, surrendered while under investigation or suspended, unless the license has been restored.

(2) The Medical Student or Osteopathy Student applicant must be enrolled in Liaison Committee for Medical Education Accredited Schools of Medicine or American Osteopathy Association Accredited School of Osteopathy and be in training in Colorado.

(3) IN ADDITION TO JOINING CMS, IT IS NECESSARY TO JOIN THE LOCAL SOCIETY WHERE THE PHYSICIAN’S PROFESSIONAL PRACTICE IS LOCATED, UNLESS OTHERWISE EXCEPTED BY THESE BYLAWS.

d. Component Societies aware of relevant information pertaining to the qualifications of an applicant or member shall disclose such information to the credentials committee of other Component Societies or CMS.

Section 6. Application for Membership

a. Procedures for Application: Before FINAL action is taken by any component society upon an application for membership by a physician, a completed application form shall have been submitted by the component society to the Colorado Medical Society, and the form shall have been returned to the component society together with such information the Society's Executive Office and the Biographic Department of the American Medical Association may be able to supply as an aid to the component society in determining the eligibility of the applicant.

b. Basis for Decision on Application: The decision of the component society upon the application shall be made in accordance with the eligibility requirements in subsection 5.b.

e. Change of Component Society Membership:

1. A member who wishes to change the major

professional office from the jurisdiction of one component society to the jurisdiction of another component society and who wishes to change membership to the component society having jurisdiction over the new office shall submit a transfer request to the office of the current component society. When such member wishes to change component membership, a form prepared by the Colorado Medical Society shall be completed and submitted to the appropriate state and component societies. Details for processing change from one component society to another shall be provided in rules adopted by the Colorado Medical Society Board of Directors.

2. The information to be provided to the new component society shall include written verification from the member's present component society as to whether the physician is then in good standing in that society. The application shall then be reviewed promptly by the new component society, and acted upon in accordance with the eligibility for membership requirements as set forth in Section 5 of Chapter 1 of the Bylaws; provided, however, that, if the applicant is then under suspension for nonpayment of dues, these dues shall be paid to the new component society, and any local or state delinquent assessment must be paid in full to the former component or state society before an application is accepted.

g. Principles of Medical Ethics: An applicant must be provided with a copy of and subscribe to the adopted Principles of Medical Ethics of the Colorado Medical Society and shall recognize the CMS Council on Ethical and Judicial Affairs as the final authority to interpret any disputed points of ethics.

Section 7. Expulsion and Disqualification of Members

a. Effect of Revocation, Surrender While Under Investigation, or Suspension of License: A member whose medical license in any state has been revoked or surrendered while under investigation shall be expelled from membership in the component society and this Society automatically, as of the date of revocation or surrender. If any member's license to practice medicine is suspended in any state, such member shall automatically be disqualified during the period of such suspension from exercising any rights or privileges as a member of a component society or of this Society. Any member who has been expelled because his or her license to practice medicine in any state has been revoked or surrendered while under investigation, and whose license has subsequently been restored, may reapply for membership in Colorado Medical Society.

b. A member who surrenders his or her Colorado medical license for any reason shall automatically be disqualified from Active Membership. If a member's Colorado license is subsequently restored, the member may reapply for active membership.

c. Expulsion from any component society terminates membership in this Society of the member so expelled. There shall be no refund of dues or assessments to an expelled member.

~~CHAPTER VII - Judicial Department~~

~~Section 1. Objectives of Grievance Review Proceedings:~~ The primary objective of professional grievance review is the furtherance of quality health care. To that end, all members of the Colorado Medical Society (CMS) and of the component societies are encouraged to participate in the grievance review process. Moreover, the grievance review committees and the Council on Ethical and Judicial Affairs cannot function effectively unless the committee members have the full and complete cooperation of member physicians.

~~Section 2. Establishment of Grievance Review Committees:~~ Complaints against physicians that allege incompetent or improper conduct may be processed through two independent committees, the CMS or component society Grievance Review Committee and the CMS Unified Grievance Review Committee, where the case is heard on appeal, or when appropriate, by the Council on Ethical and Judicial Affairs.

~~A. Colorado Medical Society and Component Society Grievance Review Committees~~

1. The Board of Directors of the Colorado Medical Society authorizes the CMS Grievance Review Committee (GRC), all component society grievance review committees and all ad hoc grievance review committees, individually and as a group, to carry out grievance review actions.

~~2. The composition, eligibility and terms of office of the CMS GRC shall be in accordance with Chapter VI, Section 13 of the CMS Bylaws.~~

3. The CMS, ad hoc or component society grievance review committees shall serve as the initial screening, investigatory and fact finding body of the Society, and shall study and review in good faith the professional conduct of physicians, including the quality and appropriateness of patient care provided by and professional conduct of any physician licensed by this State and a member of the Colorado Medical Society.

4. The CMS, ad hoc and component society grievance review committees will make findings and issue recommendations whether a hearing should be conducted by a separate committee, the Unified Grievance Review Committee, to ensure that the ultimate judgment is rendered by an impartial decision maker.

~~B. Colorado Medical Society Unified Grievance Review Committee~~

1. The Colorado Medical Society Board of Directors authorizes the CMS Unified Grievance Review Committee (Unified GRC) and the members of the committee, individually and as a group, to conduct hearings and to issue recommendations for disciplinary action to the Council on Ethical and Judicial Affairs on behalf of the Colorado Medical Society and its members.

2. Composition. The Unified Grievance Review Committee shall consist of the CMS Grievance Review Committee members as provided in Section 2 of Chapter VI of these Bylaws, the Component grievance review committees of all Component Societies which have established such committees, and Ad Hoc component grievance review committees appointed by the CMS Grievance Review Committee. None of such Component Society grievance review committees or Ad Hoc Component grievance review committees shall consist of less than three members.

~~C. Council on Ethical and Judicial Affairs~~

1. Composition: The Council of Ethical and Judicial Affairs shall be composed of Judicial Councilors, who shall be elected to represent the districts, as provided for in the Bylaws (Chapter X, Sections 1 & 2). Each Judicial Councilor shall have been a resident of the District elected to represent for at least one year next preceding the election. The permanent relocation from that district shall automatically create a vacancy in the office.

2. The Board of Directors of the Colorado Medical Society authorizes the Council on Ethical and Judicial Affairs and the members of the Council, individually and as a group, to conduct appeals from and hearings concerning the findings and recommendations of the Unified GRC. The Council on Ethical and Judicial Affairs shall be the duly authorized governing board for the Colorado Medical Society and its component societies.

3. The Council on Ethical and Judicial Affairs shall have final authority to take final action regarding the recommendations of the grievance review committees of the Colorado Medical Society and of its component societies, and of the Unified GRC.

4. The Chair, Vice-Chair and any third council member shall constitute the "Executive Committee of the Council on Ethical and Judicial Affairs". Between meetings of the full council, the Executive Committee shall be empowered to act on behalf of the full Council in matters of an urgent, non-controversial nature. Such actions shall be subject to confirmation, modification or recision by the full Council at its next meeting.

~~D. Participation in Grievance Review Proceedings~~

If a committee or council member is in direct economic competition with the respondent physician, or has been involved in the circumstances leading up to the case, or has a close relationship with the complainant or the physician, or otherwise has a personal, financial or professional interest in the outcome of the proceeding, or has any other conflict of interest, the member cannot (1) screen or investigate or mediate a complaint, (2) serve as a hearing officer, or (3) entertain an appeal of a disciplinary recommendation.

~~Section 3. Scope of Authorized Activity by the Grievance Review Committees and Councils~~

A. The Grievance Review Committees, including the State and Component Society Committees, as well as the Unified GRC and the Council on Ethical and Judicial Affairs, are authorized by the Colorado Medical Society to take grievance review action.

B. "Grievance review action" is an action or recommendation of one of the grievance review committees or by the Council on Ethical and Judicial Affairs, taken in the course of grievance review activity, based on the professional competence or professional conduct of an individual physician, which affects or could affect adversely the health or welfare of a patient or patients, and which adversely affects or may adversely affect the physician's membership in the Colorado Medical Society or in one of its component societies, or which may result in the imposition of one or more of the sanctions or disciplinary actions enumerated below.

C. "Grievance review activity" means any activity of the grievance review committees of the Colorado Medical Society or one of its component societies, of the Unified GRC, and of the Council on Ethical or Judicial Affairs, with respect to an individual physician.

~~1. To determine whether the physician may continue membership in the society;~~

~~2. To determine the scope or conditions of such membership;~~

~~3. To change or modify such membership; or~~

4. To determine whether any other action, which could adversely affect the physician and which is designed to improve the quality and ensure the appropriateness of health care provided by member physicians, should be recommended or imposed.

~~D. For the purposes of Federal law, the term "adversely affecting" includes reducing, restricting, suspending, revoking or denying membership in the society.~~

~~E. Grievance review actions do not include actions primarily based on:~~

~~1. The physician's association or lack of association with a professional society or association;~~

~~2. The physician's fees, advertising or engagement in other competitive acts intended to solicit or retain business;~~

3. The physician's association with, supervision of, delegation of authority to, support for, training of, or participation in a private group practice with a member or members of a particular class of health care practitioners or professionals;

~~4. The physician's participation in prepaid group health plans, salaried employment, or any other manner of delivering health services whether on a fee-for-service basis or other basis; and~~

~~5. Any other matter that does not relate to the competence or professional conduct of a physician.~~

~~F. All grievance review actions taken by grievance review committees or the Council on Ethical and Judicial Affairs must be taken:~~

~~1. In the reasonable belief that the action was in the furtherance of quality health care;~~

~~2. After a reasonable effort to obtain the facts of the matter;~~

~~3. After adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances; and~~

~~4. In the reasonable belief that the action was warranted by the facts known after reasonable effort to obtain facts and after meeting the requirements of paragraph F.3. above.~~

A grievance review action is presumed to have met the preceding standards, set forth in paragraph F., necessary for the protection from liability for damages afforded by federal and state law, unless the presumption is rebutted by a preponderance of evidence.

~~Section 4. Steps in the Grievance Review Process~~

~~A. Complainant and Complaint~~

~~1. A complaint is to be received in writing from the complaining party or from a professional working in the health care field.~~

2. A complaint sent on behalf of another should be examined carefully and should only be accepted for children or for adults legally determined to be incapable of registering their own complaint.

~~3. Jurisdiction~~

~~a. The GRC only receives complaints concerning the quality of care provided by Society members.~~

~~b. A complaint may be referred to a hospital grievance review committee if the complaint originated in a hospital setting.~~

c. It is appropriate to check whether the complaint has been sent to any other agency in order to determine if the committee has been preempted, e.g., complaints before the Board of Medical Examiners (BME) are not duplicated by the committees. Complaints when there is ongoing criminal or civil proceedings are not reviewed or investigated by grievance review committees.

~~d. The GRC may conduct investigations on its own motion when it finds cause to do so.~~

~~B. Release of Information~~

~~1. A standard release of information form shall be sent to complainant to be returned to the committee. A standard explanatory letter may be used to expedite return of the release.~~

~~C. Physician Reply~~

~~1. Respondent physician is sent:~~

~~a. Copy of completed release form (original is retained in file);~~

~~b. Copy of complaint (original plus envelope retained in file);~~

~~c. A brief letter requesting respondent's answer to the complaint or explanation, records concerning the case or incident, and any additional information which the physician deems pertinent.~~

~~2. The committee chair or member assigned to the case may talk with the respondent physician or complainant personally.~~

~~D. Screening~~

~~1. Complaints against physicians must first be screened to determine whether they should be mediated, investigated by the GRC, and/or referred to another institution or agency for investigation.~~

2. When a referral to another institution is made, the Society must decide whether to conduct parallel proceedings or suspend its own activities until the other agency has reached a final determination.

~~3. Screening should be completed within thirty working days after the written complaint is received.~~

~~4. The committee should promptly notify the complainant of its decision.~~

a. If no further action is appropriate, the committee should provide the complainant and the physician with an explanation for its decision. The complainant should be advised that there is a time limit of 30 days to respond to the committee or the file will be destroyed.

b. If the committee decides to conduct an investigation or attempt mediation, it should inform the physician and the complainant. The physician should also be provided an explanation of the committees' hearing and appeal procedures, and the standard of conduct on review.

~~E. Investigation of Complaint by Grievance Review Committee~~

1. The CMS or component society grievance review committee shall study, review and evaluate in good faith the qualifications of any physician and the professional competence or conduct of physicians, including the quality and appropriateness of patient care by any physician who is licensed in this State and is a member of the CMS.

2. Strict confidentiality must be maintained. Disclosure to anyone outside the committee, the complainant and respondent physician is not permitted, unless otherwise provided in these Bylaws. Disclosure of information to the CMS Executive Office or to the Credentials Committee or the Grievance Review Committee of a Component Society to which a physician is applying for membership shall not constitute or be construed as a "disclosure to anyone outside the committee," or as a violation or breach of confidentiality. The Credentials Committee and the Grievance Review Committee of the Component Society receiving such information shall maintain strict confidentiality with respect to such information and shall not disclose such information to anyone outside the committee, the complainant and respondent physician.

3. The committee or its designated investigator(s) shall conduct the investigation in good faith, and in a manner that is fair and impartial both to the complainant and to the respondent physician.

4. The committee or its designated investigator(s) must make a reasonable effort to obtain the facts of the matter under investigation, may act only upon a reasonable belief that the action taken by the committee or any of its members is warranted by the facts, may act only with a reasonable belief that the action taken furthers the quality of health care, must satisfy due process requirements, and must otherwise act in good faith and within the scope of the grievance review committee process.

5. The committee or its designated investigator(s) must assemble the pertinent issues from both the complainant and the respondent physician before any recommendation is made. It may sometimes be necessary to interview the complainant and respondent.

6. Investigations should be conducted as quickly as possible and every effort should be made to complete the investigation within sixty working days after the physician is notified of the decision to investigate. Reasonable but strict deadlines for responses from the complainant and respondent physician may be imposed.

7. The process for each investigation and the standards of review to be applied will vary according to the type of complaint. An investigation may relate to the physician's professional qualifications, clinical competence, or emotional stability or physical condition, or any other matter affecting the quality of care provided, including without limitation, allegations of substandard care, sexual misconduct, alteration of a patient's records with fraudulent intent, breach of a professional confidence, discourteous service, withholding of medical records, and impairment by alcohol or other drug use. The failure or refusal of a physician to cooperate with grievance review proceedings is grounds for disciplinary action.

~~a. Standards of Professional Conduct~~

~~(1) The AMA Principles of Medical Ethics, established CMS policy and the Colorado Board of Medical Examiners' grounds for disciplinary action are the Society's grounds for disciplinary action.~~

(2) If the findings of any investigation indicate that the respondent physician has exhibited inappropriate professional conduct, the matter shall be referred to the Unified GRC for hearing to consider the findings, unless the respondent physician waives the right to a hearing.

~~(3) Only one hearing shall be necessary prior to any appeal before the governing body.~~

~~b. Standards of Medical Care~~

(1) Standard of Review: "Was the evaluation, care and treatment provided by the physician within the usual and accepted practices of similar physicians, practicing in the same field of practice at the same time, and under the same or similar circumstances?" The physician's conduct will be measured against what a reasonably careful physician, having and using that knowledge, skill and care of physicians practicing in the same field of practice at the same time, would or would not do under the same or similar circumstances.

~~(2) Without breaching their duty of confidentiality committee members may seek expert advice during the course of their investigation.~~

(3) If the findings of any investigation indicate that the respondent physician is lacking in qualifications, or has provided substandard or inappropriate patient care, the matter shall be referred to the Unified GRC for hearing to consider the findings, unless the physician waives the right to a hearing.

~~(i) Only one hearing shall be necessary, without a waiver by the physician, prior to any appeal before the governing body.~~

~~c. Fee Disputes~~

~~(1) The committee does not review or mediate fee disputes.~~

~~(2) The committee encourages communication in these cases between the complainant and respondent physician.~~

~~(3) The committee encourages doctors to discuss fees in advance with their patients.~~

~~F. Completion of Investigation~~

~~1. After necessary facts and evidence are accumulated, the investigator(s) shall make a report to the committee of the findings. The committee shall decide whether further action is warranted.~~

a. If the committee decides no further action is warranted, the complainant and respondent are notified of the committee's decision along with a full explanation for its conclusions, and the case is closed.

b. If the findings of any investigation indicate that the respondent physician is lacking in qualifications, has provided substandard or inappropriate patient care, or has exhibited inappropriate professional conduct, the grievance review committee shall refer the matter to the Unified GRC for hearing to consider the findings, unless the physician waives the right to a hearing. Alternatively, the committee may recommend mediation.

~~G. Referral to Unified Grievance Review Committee for Hearing~~

1. The respondent physician shall be given notice of the place, time and date of the hearing 45 days prior to such hearing, shall be given a list of any witnesses expected to testify at the hearing against the physician, and shall be informed of his or her right to be present, to be represented by legal counsel at the hearing and to offer evidence in his or her own behalf. A copy of the notification should be sent to the complainant. If witnesses are added later, and the physician needs more time to prepare for the hearing, then the hearing may be delayed no more than 30 days from the date of adding the new witnesses.

~~2. The Unified GRC must also advise the physician in writing:~~

~~a. That a grievance review action has been proposed to be taken against the physician, and the reasons for the proposed action;~~

~~b. Of the standard of professional conduct or the standard of medical care that was allegedly violated and a concise statement of the relevant facts;~~

~~c. That the physician has the right to request a hearing on the proposed action within 45 days after receipt of notification of the proposed action;~~

d. That, unless the physician voluntarily waives the right to a hearing, the hearing will be held before the Unified GRC which consists of the Chair of the CMS GRC and the Chairs of the component medical society GRC's;

~~e. That the right to a hearing may be forfeited if the physician fails to appear, without good cause;~~

f. That in the hearing, the physician involved has the right to representation by an attorney or other person of the physician's choice; the right to have a record made of the proceedings, copies of which may be obtained by the physician upon payment of any reasonable charges associated with their preparation; the right to call, examine, and cross-examine witnesses; the right to present evidence determined to be relevant by the hearing officer, regardless of its admissibility in a court of law; and the right to submit a written statement at the close of the hearing; and

g. That, upon completion of the hearing, the physician has the right to receive the written recommendation of the Unified GRC, including a statement of the basis for the recommendations, and the right to receive the written decision of the Unified GRC, including a statement of the basis for the decision.

3. Any person who has participated in the investigation shall be disqualified as a member of the Unified Grievance Review Committee at any hearing held as a result of the findings or recommendations of the CMS or component society's grievance review committee; however, that person may participate as a witness in the hearing.

~~H. Conduct of the Hearing by the Unified GRC~~

1. The hearing should be held as soon as possible after the required 45-day notification period has expired. The convenience of the parties and witnesses should be considered but undue delays should not be permitted.

~~2. A hearing officer should be chosen from the Unified Grievance Review Committee to preside over the hearing, or a panel of three members may be chosen to preside over the hearing.~~

~~3. The grievance review committee should first offer evidence at the hearing, or it’s representative and then by the physician.~~

4. The grievance review committee may offer rebuttal evidence, in response to the physician's evidence, but may not introduce evidence on issues not previously raised by either the committee or the physician.

~~5. At the hearing the physician has the right to:~~

~~a. Be represented by an attorney or any other person of the physician's choice;~~

~~b. Present evidence that the hearing officer finds to be relevant whether or not it complies with technical rules of evidence ;~~

~~c. Call and examine his or her own witnesses and cross-examine hostile witnesses;~~

~~d. Submit a written statement at the close of the hearing;~~

~~e. Have a record made of the proceedings; and,~~

~~f. Obtain a copy of the record upon the payment of any reasonable charges associated with the preparation of the record.~~

~~6. The grievance review committee shall be given the same rights.~~

~~7. The complainant is not entitled to attend the hearing except as needed to testify.~~

~~8. In order to protect the confidentiality of the proceedings, the complainant should not have access to the hearing record, unless otherwise provided by Colorado or Federal law.~~

9. As soon as possible and not more than 30 working days after the hearing, the hearing officer should render a decision in writing to the full Unified GRC on whether the charges against the physician should be sustained or dismissed, and what sanctions or disciplinary actions, if any are appropriate.

10. If the charges are established by a preponderance of the evidence, the hearing officer should decide that the charges were sustained. The charges are established by a preponderance of the evidence when it is more likely than not that the charges are true. The hearing officer should state the basis for the decision.

~~11. After the hearing, the Hearing Officer of the Unified GRC shall prepare a written "Decision and Recommendations" for the Unified Grievance Committee and the Judicial Council.~~

~~12. "Disciplinary actions and sanctions" which may be recommended or imposed against the physician include:~~

~~a. A formal decision not to take any action;~~

~~b. A determination of whether the physician may have membership in the CMS or any of its component societies;~~

~~c. A determination of the scope or conditions of the physician's membership in the society or in one of its component societies;~~

~~d. A change or modification of the physician's membership in the society;~~

~~e. Referral of the physician to an Impaired Physician Program;~~

~~f. Requiring the physician to undertake a specific program of remedial education;~~

~~g. Reprimand, censure, suspension of membership or expulsion from membership;~~

~~h. Recommendation to the state licensing board that the physician's license be suspended or revoked; and~~

~~i. A combination of the disciplinary actions and sanctions listed in a. - h.~~

~~13. A copy of the written Decision and Recommendations of the Unified GRC shall be provided to the physician, the complainant and the GRC.~~

14. The physician shall have the right to appeal the findings and recommendations of the Unified GRC reported to the Council on Ethical and Judicial Affairs within 45 days after receipt of the findings and recommendations.

15. If the physician does not request an appeal, then the Council on Ethical and Judicial Affairs should issue the Unified GRC's decision or recommendation as a final decision. The final decision should be issued as soon as the time during which the physician may file an appeal expires.

~~I. Appeal before the Council on Ethical and Judicial Affairs (Judicial Council)~~

~~1. A committee of not fewer than three members of the Judicial Council may hear the appeal.~~

~~2. The hearing officer of the Unified GRC shall not serve on the panel of the Judicial Council hearing the appeal.~~

3. Unless waived, the physician shall have the right to appear before the Judicial Council, shall have the right to be represented by legal counsel, and shall have the right to offer such oral argument on the record as he or she deems appropriate.

~~4. The respondent physician and the grievance review committee may submit written statements discussing the relevant facts and issues.~~

~~5. The panel of the Judicial Council will not consider arguments and evidence that were not presented to the hearing officer unless there is good reason for the failure to present them earlier.~~

~~6. The Judicial Council must act and is presumed to have acted in good faith at all times.~~

7. The council acts in good faith when it relies upon the findings and recommendations of the grievance review committees and the Unified GRC, unless the council or a member has knowledge concerning the review in question which would cause the reliance to be unwarranted, in which case good faith will not be presumed.

~~8. The council must act in good faith when considering any facts not previously available to and considered by the Unified Grievance Review Committee.~~

~~9. The Judicial Council will issue a written opinion stating its decision to accept, reject or modify the Hearing Officer's Decision and stating the basis for its decision.~~

~~10. The decision need not be unanimous, and the member of the panel who disagrees with the majority may draft a minority opinion to accompany the majority's binding opinion.~~

~~11. The respondent physician shall receive a copy of the panel's written opinion.~~

~~12. The Judicial Council shall take final action on the complaint. Final action may include:~~

~~a. A formal decision not to take any action;~~

~~b. A determination of whether the physician may have membership in the CMS or in any of its component societies;~~

~~c. A determination of the scope or conditions of the physician's membership in the society or in one of its component societies;~~

~~d. A change or modification of the physician's membership in the society;~~

~~e. Referral of the physician to an Impaired Physician Program;~~

~~f. Requiring the physician to undertake a specific program of remedial education;~~

~~g. Reprimand, censure, suspension of membership or expulsion from membership in the society;~~

~~h. A recommendation to the state licensing board that the physician's license be suspended or revoked; or~~

~~i. A combination of the disciplinary actions and sanctions listed in a-h.~~

~~13. In taking any final action, the council must act with a reasonable belief that the action taken is warranted by the facts.~~

14. The records of the grievance review committees and of the Judicial Council are confidential and are not subject to subpoena or discovery, are not admissible in any civil suit brought against a physician who is the subject of records, except that the records are subject to subpoena:

~~a. By the committee on anti-competitive conduct;~~

~~b. By either party in any appeal or de novo proceeding brought pursuant to statute or the bylaws of the Colorado Medical Society;~~

~~c. By a physician in a suit seeking judicial review of any action by the Judicial Council; and,~~

~~d. By the Judicial Council seeking judicial review.~~

~~15. All records, minutes, recommendations, reports and proceedings of the grievance review committees and the Judicial Council are confidential and are not open to the public.~~

~~16. The final decision and final action of the Judicial Council shall be reported to the Colorado Board of Medical Examiners.~~

17. Additionally, pursuant to federal law, the following adverse grievance review actions must be reported to the Board of Medical Examiners within twenty (20) days after the adverse action is taken:

~~a. Any grievance review action that adversely affects the membership of the physician in the Colorado Medical Society or in one of its component societies;~~

~~b. Acceptance of the surrender of membership privileges by a physician;~~

~~(1) While the physician is under investigation by the CMS or one of its component societies, relating to possible incompetence or improper professional conduct, or~~

~~(2) In return for~~