CO Code § 12-240-121 (2021)
2021 Colorado Code|Title 12 - Professions and Occupations|Article 240 - Medical Practice|§ 12-240-121. Unprofessional Conduct - Definitions

  “Unprofessional conduct” as used in this article 240 means:   Resorting to fraud, misrepresentation, or deception in applying for, securing, renewing, or seeking reinstatement of a license to practice medicine or a license to practice as a physician assistant or an anesthesiologist assistant in this state or any other state, in applying for professional liability coverage, required pursuant to section 13-64-301, or privileges at a hospital, or in taking the examination provided for in this article 240;    Any conviction of an offense of moral turpitude, a felony, or a crime that would constitute a violation of this article 240. For purposes of this subsection (1)(b), “conviction” includes the entry of a plea of guilty or nolo contendere or the imposition of a deferred sentence.    Administering, dispensing, or prescribing any habit-forming drug or any controlled substance as defined in section 18-18-102 (5) other than in the course of legitimate professional practice;    Any conviction of violation of any federal or state law regulating the possession, distribution, or use of any controlled substance, as defined in section 18-18-102 (5), and, in determining if a license should be denied, revoked, or suspended, or if the licensee should be placed on probation, the board shall be governed by sections 12-20-202 (5) and 24-5-101. For purposes of this subsection (1)(d), “conviction” includes the entry of a plea of guilty or nolo contendere or the imposition of a deferred sentence.    Habitual or excessive use or abuse of alcohol, a habit-forming drug, or a controlled substance as defined in section 18-18-102 (5);    The aiding or abetting, in the practice of medicine, of any person not licensed to practice medicine as defined under this article 240 or of any person whose license to practice medicine is suspended;      Except as otherwise provided in sections 12-240-138, 25-3-103.7, and 25-3-314, practicing medicine as the partner, agent, or employee of, or in joint venture with, any person who does not hold a license to practice medicine within this state, or practicing medicine as an employee of, or in joint venture with, any partnership or association any of whose partners or associates do not hold a license to practice medicine within this state, or practicing medicine as an employee of or in joint venture with any corporation other than a professional service corporation for the practice of medicine as described in section 12-240-138. Any licensee holding a license to practice medicine in this state may accept employment from any person, partnership, association, or corporation to examine and treat the employees of the person, partnership, association, or corporation. (g) (I) Except as otherwise provided in sections 12-240-138, 25-3-103.7, and 25-3-314, practicing medicine as the partner, agent, or employee of, or in joint venture with, any person who does not hold a license to practice medicine within this state, or practicing medicine as an employee of, or in joint venture with, any partnership or association any of whose partners or associates do not hold a license to practice medicine within this state, or practicing medicine as an employee of or in joint venture with any corporation other than a professional service corporation for the practice of medicine as described in section 12-240-138. Any licensee holding a license to practice medicine in this state may accept employment from any person, partnership, association, or corporation to examine and treat the employees of the person, partnership, association, or corporation.    (A) Nothing in this subsection (1)(g) shall be construed to permit a professional service corporation for the practice of medicine, as described in section 12-240-138, to practice medicine.       Violating, or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any provision or term of this article 240 or an applicable provision of article 20 or 30 of this title 12;    Failing to notify the board, as required by section 12-30-108 (1), of a physical illness, physical condition, or behavioral, mental health, or substance use disorder that impacts the licensee's ability to perform a medical service with reasonable skill and safety to patients; failing to act within the limitations created by a physical illness, physical condition, or behavioral, mental health, or substance use disorder that renders the licensee unable to perform a medical service with reasonable skill and safety to the patient; or failing to comply with the limitations agreed to under a confidential agreement entered into pursuant to sections 12-30-108 and 12-240-126;    Any act or omission that fails to meet generally accepted standards of medical practice;    Engaging in a sexual act with a patient during the course of patient care or within six months immediately following the termination of the licensee's professional relationship with the patient. “Sexual act”, as used in this subsection (1)(k), means sexual contact, sexual intrusion, or sexual penetration as defined in section 18-3-401.    Refusal of an attending physician to comply with the terms of a declaration executed by a patient pursuant to the provisions of article 18 of title 15 and failure of the attending physician to transfer care of the patient to another physician;      Violation of abuse of health insurance pursuant to section 18-13-119; or (m) (I) Violation of abuse of health insurance pursuant to section 18-13-119; or    Advertising through newspapers, magazines, circulars, direct mail, directories, radio, television, or otherwise that the licensee will perform any act prohibited by section 18-13-119 (3);       Violation of any valid board order or any rule promulgated by the board in conformance with law;    Dispensing, injecting, or prescribing an anabolic steroid, as defined in section 18-18-102 (3), for the purpose of the hormonal manipulation that is intended to increase muscle mass, strength, or weight without a medical necessity to do so or for the intended purpose of improving performance in any form of exercise, sport, or game;    Dispensing or injecting an anabolic steroid, as defined in section 18-18-102 (3), unless the anabolic steroid is dispensed from a pharmacy prescription drug outlet pursuant to a prescription order or is dispensed by any practitioner in the course of the practitioner's professional practice;    Prescribing, distributing, or giving to a family member or to oneself except on an emergency basis any controlled substance as defined in section 18-18-204 or as contained in schedule II of 21 U.S.C. sec. 812, as amended;    Failing to report to the board, within thirty days after an adverse action, that an adverse action has been taken against the licensee by another licensing agency in another state or country, a peer review body, a health-care institution, a professional or medical society or association, a governmental agency, a law enforcement agency, or a court for acts or conduct that would constitute grounds for disciplinary or adverse action as described in this article 240;    Failing to report to the board, within thirty days, the surrender of a license or other authorization to practice medicine in another state or jurisdiction or the surrender of membership on any medical staff or in any medical or professional association or society while under investigation by any of those authorities or bodies for acts or conduct similar to acts or conduct that would constitute grounds for action as described in this article 240;    Failing to accurately answer the questionnaire accompanying the renewal form as required pursuant to section 12-240-130 (2);      Engaging in any of the following activities and practices: Willful and repeated ordering or performance, without clinical justification, of demonstrably unnecessary laboratory tests or studies; the administration, without clinical justification, of treatment that is demonstrably unnecessary; the failure to obtain consultations or perform referrals when failing to do so is not consistent with the standard of care for the profession; or ordering or performing, without clinical justification, any service, X ray, or treatment that is contrary to recognized standards of the practice of medicine as interpreted by the board. (u) (I) Engaging in any of the following activities and practices: Willful and repeated ordering or performance, without clinical justification, of demonstrably unnecessary laboratory tests or studies; the administration, without clinical justification, of treatment that is demonstrably unnecessary; the failure to obtain consultations or perform referrals when failing to do so is not consistent with the standard of care for the profession; or ordering or performing, without clinical justification, any service, X ray, or treatment that is contrary to recognized standards of the practice of medicine as interpreted by the board.    In determining which activities and practices are not consistent with the standard of care or are contrary to recognized standards of the practice of medicine, the board shall utilize, in addition to its own expertise, the standards developed by recognized and established accreditation or review organizations that meet requirements established by the board by rule. The determinations shall include but need not be limited to appropriate ordering of laboratory tests and studies, appropriate ordering of diagnostic tests and studies, appropriate treatment of the medical condition under review, appropriate use of consultations or referrals in patient care, and appropriate creation and maintenance of patient records.    A suspension issued pursuant to subsection (1)(ff)(I) of this section may be continued until dismissal, acquittal, or conviction of the charges. A hearing on the suspension may not occur until after the dismissal, acquittal, or conviction of such charge unless the licensee opts to proceed to a hearing regarding the suspension.       Falsifying or repeatedly making incorrect essential entries or repeatedly failing to make essential entries on patient records;    Committing a fraudulent insurance act, as defined in section 10-1-128;    Failing to establish and continuously maintain financial responsibility, as required in section 13-64-301;    Failing to respond in an honest, materially responsive, and timely manner to a complaint issued pursuant to section 12-240-125 (4);    Advertising in a manner that is misleading, deceptive, or false;    Any act or omission in the practice of telemedicine that fails to meet generally accepted standards of medical practice;    Entering into or continuing in a mentorship relationship with an advanced practice registered nurse pursuant to sections 12-240-108 and 12-255-112 (4) that fails to meet generally acceptable standards of medical practice;    Repealed.    Failure to comply with the requirements of section 14 of article XVIII of the state constitution, section 25-1.5-106, or the rules promulgated by the state health agency pursuant to section (3);    Engaging in conversion therapy with a patient who is under eighteen years of age;    (I) Any suspension of a license pursuant to section 24-4-104 (4) as a result of a formal charge for a crime pursuant to title 18, or that under federal law or the law of another state would constitute a crime under title 18, where the board finds the crime is a continuing threat to patient safety.    Any conviction of an offense under section 18-13-131. For purposes of this subsection (1)(gg), “conviction” includes the entry of a plea of guilty or nolo contendere or the imposition of a deferred sentence.         A licensee shall not be subject to disciplinary action by the board solely for prescribing controlled substances for the relief of intractable pain.    For the purposes of this subsection (2), “intractable pain” means a pain state in which the cause of the pain cannot be removed and for which in the generally accepted course of medical practice no relief or cure of the cause of the pain is possible or none has been found after reasonable efforts including, but not limited to, evaluation by the attending physician and one or more physicians specializing in the treatment of the area, system, or organ of the body perceived as the source of the pain.       A licensee is not subject to disciplinary action by the board for issuing standing orders and protocols regarding the use of epinephrine auto-injectors in a public or nonpublic school in accordance with the requirements of section 22-1-119.5, for the actions taken by a school nurse or by any designated school personnel who administers epinephrine auto-injectors in accordance with the requirements of section 22-1-119.5, or for prescribing epinephrine auto-injectors in accordance with the requirements of article 47 of title 25.    The discipline of a license to practice medicine, of a license to practice as a physician assistant, or of a license to practice as an anesthesiologist assistant in another state, territory, or country shall be deemed to be unprofessional conduct. For purposes of this subsection (4), “discipline” includes any sanction required to be reported pursuant to 45 CFR 60.8. This subsection (4) applies only to discipline that is based upon an act or omission in the other state, territory, or country that is defined substantially the same as unprofessional conduct pursuant to subsection (1) of this section.      For purposes of this section, “alternative medicine” means those health-care methods of diagnosis, treatment, or healing that are not generally used but that provide a reasonable potential for therapeutic gain in a patient's medical condition that is not outweighed by the risk of the methods. A licensee who practices alternative medicine shall inform each patient in writing, during the initial patient contact, of the licensee's education, experience, and credentials related to the alternative medicine practiced by the licensee. The board shall not take disciplinary action against a licensee solely on the grounds that the licensee practices alternative medicine.    Nothing in subsection (5)(a) of this section prevents disciplinary action against a licensee for practicing medicine, practicing as a physician assistant, or practicing as an anesthesiologist assistant in violation of this article 240.        History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 1190, § 1, effective October 1; (1)(a) amended and (1)(ff) added,(SB 19-193), ch. 406, p. 3588, § 13, effective October 1; (1)(ee) added,(HB 19-1129), ch. 378, p. 3411, § 6, effective October 1. L. 2020: (1)(cc) repealed,(HB 20-1216), ch. 190, p. 881, § 29, effective July 1; (1)(gg) added,(HB 20-1014), ch. 238, p. 1155, § 4, effective September 14.    Editor's note:    This section is similar to former § 12-36-117 as it existed prior to 2019.      Before its relocation in 2019, this section was amended in SB 19-193. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from July 1, 2019, to October 1, 2019, see SB 19-193, chapter 406, Session Laws of Colorado 2019. (2) (a) Before its relocation in 2019, this section was amended in SB 19-193. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from July 1, 2019, to October 1, 2019, see SB 19-193, chapter 406, Session Laws of Colorado 2019.    Before its relocation in 2019, this section was amended in HB 19-1129. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from August 2, 2019, to October 1, 2019, see HB 19-1129, chapter 378, Session Laws of Colorado 2019.        Cross references:    For an exception to the provisions of subsection (1)(g), see § 6-18-303.    For the legislative declaration in HB 20-1216, see section 1 of chapter 190, Session Laws of Colorado 2020.     ANNOTATION   Law reviews. For article, “The Effect of Criminal Guilty Pleas in Administrative Hearings”, see 22 Colo. 1889 (1993). For article, “Changes in the Medical Practice Act”, see 24 Colo. Law. 2155 (1995). For article, “Fact and Folklore of Reporting Physician Misconduct to the Medical Board”, see 25 Colo. Law. 33 (May 1996).   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   This section sets forth standards for conduct to which procedures of § 12-36-118 apply. Colo. State Bd. of Med. Exam'rs v. Jorgensen, 198 Colo. 275 , 599 P.2d 869 (1979).   Quality of medical practice must be determined by standard of care of those in same field since, as a general rule, practitioners of one medical specialty are not competent to testify to standards of care of another specialty. Horwitz v. Colo. State Bd. of Med. Exam'rs, 716 P.2d 131 (Colo. App. 1985), cert. denied, 479 U.S. 803, 107 S. Ct. 44, 93 L. Ed. 2d 7 (1986).   The words in subsection (1)(p) point to a continued course of conduct rather than to two or more administrations of medication within the course of treatment of specific medical problem. People ex rel. McFarlane v. Pfeiffer, 725 P.2d 19 (Colo. App. 1986).   Subsection (1)(p) encompasses all acts of substandard practice, so to establish a violation of subsection (1)(g) it is necessary to prove actions different from or beyond those which are required to establish substandard medical practice. State Bd. of Med. Exam'rs v. Slonim, 844 P.2d 1207 (Colo. App. 1992).   The term “practice of medicine”, as defined in § 12-36-106 (1)(b) , encompasses a continued process of treatment and healing, not just isolated moments or acts within a course of treatment. People ex rel. McFarlane v. Pfeiffer, 725 P.2d 19 (Colo. App. 1986).   Record-keeping is part of the practice of medicine under subsection (1)(p). State Bd. of Med. Exam'rs v. McCroskey, 940 P.2d 1044 (Colo. App. 1996).   A single act of medical practice may subsume within itself a diagnosis, a determination of treatment, as well as the treatment itself. People ex rel. McFarlane v. Pfeiffer, 725 P.2d 19 (Colo. App. 1986).   Treatment of single patient where the applicant made 14 to 16 attempts to draw blood over several hours in the morning and afternoon involved two or more acts of substandard care under subsection (1)(p). Hall v. State Bd. of Med. Exam'rs, 876 P.2d 77 (Colo. App. 1994).   Renewing a prescription was part of a single act of medical practice and did not constitute “two or more acts or omissions” under subsection (1)(p). State Bd. of Med. Exam'rs v. Slonim, 844 P.2d 1207 (Colo. App. 1992).   Prior felony not sufficient to warrant loss of license. A prior felony conviction, standing by itself, is not sufficient to warrant the denial or revocation of a license. Colo. State Bd. of Med. Exam'rs v. Jorgensen, 198 Colo. 275 , 599 P.2d 869 (1979).   Evidence of circumstances which led to prior felony conviction may be considered by board of medical examiners in deciding to revoke a medical license. Colo. State Bd. of Med. Exam'rs v. Jorgensen, 198 Colo. 275 , 599 P.2d 869 (1979).   Sanctions of doctor under this section not warranted. Where the practice complained of is a continuum, subsumed within the initial failure to evaluate adequately the patient's condition, it becomes a single act of medical practice. People ex rel. McFarlane v. Pfeiffer, 725 P.2d 19 (Colo. App. 1986).   The term “habitual intemperance” under subsection (1)(i) refers to repeated, uncontrolled, excessive drinking and is not an unconstitutionally vague term but is sufficiently specific so that persons licensed to practice medicine can distinguish between permissible and impermissible conduct. Colo. State Bd. of Med. Exam'rs v. Hoffner, 832 P.2d 1062 (Colo. App. 1992).   Subsection (1)(i) gives fair notice that habitual intemperance is unprofessional conduct and there was no denial of due process in the application of this statutory standard to the evidence adduced at the hearing where respondent's conduct fell within the prohibition since record indicated the respondent was habitually drinking to excess from the fall of 1987 to January 29, 1990. Colo. State Bd. of Med. Exam'rs v. Hoffner, 832 P.2d 1062 (Colo. App. 1992).   Although evidence that physician's practice was not affected or that no patient had been harmed is relevant for the Board to consider in imposing appropriate discipline, the lack of such evidence is not determinative of the question of whether a physician is “habitually intemperate” under subsection (1)(i). Colo. State Bd. of Med. Exam'rs v. Hoffner, 832 P.2d 1062 (Colo. App. 1992).   The absence of any evidence that physician was using drugs illegally at the time of the hearing is not relevant to a finding that he violated subsection (1)(i). Colo. State Bd. of Med. Exam'rs v. Davis, 893 P.2d 1365 (Colo. App. 1995).   Evidence of two separate overdoses supports conclusion that applicant engaged in excessive use of a controlled substance under subsection (1)(i). Hall v. State Bd. of Med. Exam'rs, 876 P.2d 77 (Colo. App. 1994).   Under subsection (1)(o), unprofessional conduct includes a past mental disability that rendered the applicant at the time unable to perform medical services, and the board may consider the nature, extent, and time of the disability as well as any other relevant considerations and may tailor a sanction appropriate to the applicant's current qualifications to practice medicine. Hall v. State Bd. of Med. Exam'rs, 876 P.2d 77 (Colo. App. 1994).   Physician's conviction for wanton assault in the first degree in Kentucky was a conviction of a felony for purposes of subsection (1)(f) where the conviction was punishable by imprisonment for ten years in the Kentucky penitentiary. Colo. Bd. of Med. Exam'rs v. Boyle, 924 P.2d 1113 (Colo. App. 1996).   Neither paragraph (bb) or (cc) of subsection (1) requires proof of fraudulent intent. Colo. State Bd. of Med. Exam'rs v. Khan, 984 P.2d 670 (Colo. App. 1999).   It would be inconsistent with the declared purpose of the Colorado Medical Practice Act to consider “intent to mislead or deceive” to be a necessary element of false, deceptive, or misleading advertising under subsection (1)(hh). State Bd. of Med. Exam'rs v. Thompson, 944 P.2d 547 (Colo. App. 1996).