CO Code § 12-240-125 (2021)
2021 Colorado Code|Title 12 - Professions and Occupations|Article 240 - Medical Practice|§ 12-240-125. Disciplinary Action by Board - Rules

     The president of the board shall divide those members of the board other than the president into two panels of six members each, four of whom shall be physician members.    Each panel shall act as both an inquiry and a hearings panel. Members of the board may be assigned from one panel to the other by the president. The president may be a member of both panels, but in no event shall the president or any other member who has considered a complaint as a member of a panel acting as an inquiry panel take any part in the consideration of a formal complaint involving the same matter.    All matters referred to one panel for investigation shall be heard, if referred for formal hearing, by the other panel or a committee of that panel. However, in its discretion, either inquiry panel may elect to refer a case for formal hearing to a qualified administrative law judge in lieu of a hearings panel of the board, for an initial decision pursuant to section 24-4-105.    The initial decision of an administrative law judge may be reviewed pursuant to section 24-4-105 (14) and (15) by the filing of exceptions to the initial decision with the hearings panel that would have heard the case if it had not been referred to an administrative law judge or by review upon the motion of the hearings panel. The respondent or the board's counsel shall file the exceptions.       Investigations shall be under the supervision of the panel to which they are assigned. The persons making the investigation shall report the results thereof to the assigning panel for appropriate action.    In the discharge of its duties, the board may enlist the assistance of other licensees. Licensees have the duty to report to the board any licensee known, or upon information and belief, to have violated any of the provisions of section 12-240-121 (1); except that a licensee who is treating another licensee for a behavioral, mental health, or substance use disorder or the excessive use of any habit-forming drug, shall not have a duty to report his or her patient unless, in the opinion of the treating licensee, the impaired licensee presents a danger to himself, herself, or others.        Written complaints relating to the conduct of a licensee licensed or authorized to practice medicine in this state may be made by any person or may be initiated by an inquiry panel of the board on its own motion. The licensee complained of shall be given notice by first-class mail of the nature of the complaint and shall be given thirty days to answer or explain in writing the matters described in such complaint. Upon receipt of the licensee's answer or at the conclusion of thirty days, whichever occurs first, the inquiry panel may take further action as set forth in subsection (4)(a)(II) of this section. (a) (I)Written complaints relating to the conduct of a licensee licensed or authorized to practice medicine in this state may be made by any person or may be initiated by an inquiry panel of the board on its own motion. The licensee complained of shall be given notice by first-class mail of the nature of the complaint and shall be given thirty days to answer or explain in writing the matters described in such complaint. Upon receipt of the licensee's answer or at the conclusion of thirty days, whichever occurs first, the inquiry panel may take further action as set forth in subsection (4)(a)(II) of this section.    The inquiry panel may then conduct a further investigation, which may be made by one or more members of the inquiry panel, one or more licensees who are not members of the board, a member of the staff of the board, a professional investigator, or any other person or organization as the inquiry panel directs. The investigation shall be entirely informal.       The board shall cause an investigation to be made when the board is informed of:   Disciplinary actions taken by hospitals to suspend or revoke the privileges of a physician and reported to the board pursuant to section 25-3-107;    Disciplinary actions taken as a result of a professional review proceeding pursuant to part 2 of article 30 of this title 12 against a physician. Disciplinary actions shall be promptly reported to the board.    An instance of a medical malpractice settlement or judgment against a licensee reported to the board pursuant to section 10-1-120; or    Licensees who have been allowed to resign from hospitals for medical misconduct. Hospitals shall report the resignation.       On completion of an investigation, the inquiry panel shall make a finding that:   The complaint is without merit and no further action need be taken with reference thereto;    There is no reasonable cause to warrant further action with reference thereto;    There is an instance of conduct that does not warrant formal action by the board and should be dismissed, but the inquiry panel has noticed indications of possible errant conduct by the licensee that could lead to serious consequences if not corrected. In this case, the board shall send a confidential letter of concern in accordance with section 12-20-404 (5) to the licensee against whom the complaint was made.    There is an instance of misconduct that, in the opinion of the board, does not warrant formal action by the board but that should not be dismissed as being without merit. In this case, the board may issue and send a letter of admonition to the licensee in accordance with section 12-20-404 (4).    The investigation discloses facts that warrant further proceedings by formal complaint, as provided in subsection (5) of this section. In this case, the complaint shall be referred to the attorney general for preparation and filing of a formal complaint.       All proceedings pursuant to this subsection (4) shall be expeditiously and informally conducted so that no licensee is subjected to unfair and unjust charges and that no complainant is deprived of his or her right to a timely, fair, and proper investigation of his or her complaint.         All formal complaints shall be heard and determined in accordance with subsection (5)(b) of this section and section 24-4-105. Except as provided in subsection (1) of this section, all formal hearings shall be conducted by the hearings panel. The licensee may be present in person and by counsel, if so desired, to offer evidence and be heard in his or her own defense. At formal hearings, the witnesses shall be sworn and a complete record shall be made of all proceedings and testimony.    Except as provided in subsection (1) of this section, an administrative law judge shall preside at the hearing and shall advise the hearings panel, as requested, on legal matters in connection with the hearing. The administrative law judge shall provide advice or assistance as requested by the hearings panel in connection with its preparations of its findings and recommendations or conclusions to be made. The administrative law judge may act in accordance with section 12-20-403 and perform other duties as authorized by the hearings panel.      To warrant a finding of unprofessional conduct, the charges shall be established as specified in section 24-4-105 (7). Except as provided in subsection (1) of this section, the hearings panel shall make a report of its findings and conclusions that, when approved and signed by a majority of those members of the hearings panel who have conducted the hearing pursuant to subsections (5)(a) and (5)(b) of this section, shall be and become the action of the board. (c) (I) To warrant a finding of unprofessional conduct, the charges shall be established as specified in section 24-4-105 (7). Except as provided in subsection (1) of this section, the hearings panel shall make a report of its findings and conclusions that, when approved and signed by a majority of those members of the hearings panel who have conducted the hearing pursuant to subsections (5)(a) and (5)(b) of this section, shall be and become the action of the board.    If it is found that the charges are unproven, the hearings panel, or an administrative law judge sitting in lieu of the hearings panel pursuant to subsection (1) of this section, shall enter an order dismissing the complaint.    If the hearings panel finds the charges proven and orders that discipline be imposed, it shall also determine the extent of the discipline, which must be in the form of a letter of admonition, suspension for a definite or indefinite period, or revocation of license to practice. The hearings panel also may impose a fine of up to five thousand dollars per violation. In determining appropriate disciplinary action, the hearings panel shall first consider sanctions that are necessary to protect the public. Only after the panel has considered sanctions may it consider and order requirements designed to rehabilitate the licensee or applicant. If discipline other than revocation of a license to practice is imposed, the hearings panel may also order that the licensee be granted probation and allowed to continue to practice during the period of probation. The hearings panel may also include in any disciplinary order that allows the licensee to continue to practice such conditions as the panel may deem appropriate to assure that the licensee is physically, mentally, morally, and otherwise qualified to practice medicine, practice as a physician assistant, or practice as an anesthesiologist assistant in accordance with generally accepted professional standards of practice, including any or all of the following:   Submission by the respondent to such examinations as the hearings panel may order to determine the respondent's physical or mental condition or the respondent's professional qualifications;    Taking by the respondent of therapy or courses of training or education as may be needed to correct deficiencies found either in the hearing or by the examinations;    Review or supervision of the respondent's practice as may be necessary to determine the quality of the respondent's practice and to correct deficiencies therein; and    The imposition of restrictions upon the nature of the respondent's practice to assure that the respondent does not practice beyond the limits of the respondent's capabilities.       Upon the failure of the licensee to comply with any conditions imposed by the hearings panel pursuant to subsection (5)(c)(III) of this section, unless due to conditions beyond the licensee's control, the hearings panel may order suspension of the licensee's license to practice medicine, practice as a physician assistant, or practice as an anesthesiologist assistant in this state until the licensee complies with the conditions.    In making any of the orders provided in subsections (5)(c)(III) and (5)(c)(IV) of this section, the hearings panel may take into consideration the licensee's prior disciplinary record. If the hearings panel does take into consideration any prior discipline of the licensee, its findings and recommendations shall so indicate.    In all cases of revocation, suspension, or probation, the board shall enter in its records the facts of the revocation, suspension, or probation and of any subsequent action of the board with respect thereto.    In all cases involving alleged violations of section 12-240-121 (1)(dd), the board shall promptly notify the executive director of the department of public health and environment of its findings, including whether it found that the physician violated section 12-240-121 (1)(dd) and any restrictions it placed on the physician with respect to recommending the use of medical marijuana.       The attorney general shall prosecute those charges that have been referred to the attorney general by the inquiry panel pursuant to subsection (4)(c)(V) of this section. The board may direct the attorney general to perfect an appeal.    The two-year waiting period specified in section 12-20-404 (3) applies to any person whose license to practice medicine, to practice as a physician assistant, to practice as an anesthesiologist assistant, or to practice any other health-care occupation is revoked by the board, another applicable regulator, or any other legally qualified board or regulatory entity.       A majority of the members of the board, three members of the inquiry panel, or three members of the hearings panel shall constitute a quorum. The action of a majority of those present comprising a quorum shall be the action of the board, the inquiry panel, or the hearings panel.    If any licensee is determined to be mentally incompetent or insane by a court of competent jurisdiction and a court enters, pursuant to part 3 or 4 of article 14 of title 15 or section 27-65-109 (4) or 27-65-127, an order specifically finding that the mental incompetency or insanity is of such a degree that the licensee is incapable of continuing to practice medicine, practice as a physician assistant, or practice as an anesthesiologist assistant, the board shall automatically suspend his or her license, and, anything in this article 240 to the contrary notwithstanding, the suspension must continue until the licensee is found by the court to be competent to practice medicine, practice as a physician assistant, or practice as an anesthesiologist assistant.      If the board has reasonable cause to believe that a licensee is unable to practice with reasonable skill and safety to patients because of a condition described in section 12-240-121 (1)(e) or (1)(i), it may require the licensee to submit to mental or physical examinations by physicians designated by the board. If a licensee fails to submit to the mental or physical examinations, the board may suspend the license until the required examinations are conducted.    Every licensee shall be deemed, by practicing or by applying for annual registration of the person's license, to have consented to submit to mental or physical examinations when directed in writing by the board. Further, the person shall be deemed to have waived all objections to the admissibility of the examining physician's testimony or examination reports on the ground of privileged communication. Subject to applicable federal law, the licensee shall be deemed to have waived all objections to the production of medical records to the board from health-care providers that may be necessary for the evaluations described in subsection (8)(a) of this section.    The results of any mental or physical examination ordered by the board shall not be used as evidence in any proceeding other than before the board.         Investigations, examinations, hearings, meetings, or any other proceedings of the board conducted pursuant to this section shall be exempt from any law requiring that proceedings of the board be conducted publicly or that the minutes or records of the board with respect to action of the board taken pursuant to this section be open to public inspection. This subsection (9) shall not apply to investigations, examinations, hearings, meetings, or any other proceedings or records of the licensing panel created pursuant to section 12-240-116 related to the unlicensed practice of medicine.    For purposes of the records related to a complaint filed pursuant to this section against a licensee, the board is considered a professional review committee, the records related to the complaint include all records described in section 12-30-202 (8), and section 12-30-204 (12) applies to those records.       A licensee who, at the request of the board, examines another licensee shall be immune from suit for damages by the person examined if the examining person conducted the examination and made his or her findings or diagnosis in good faith.    Within thirty days after the board takes final action, which is of public record, to revoke or suspend a license or to place a licensee on probation based on competence or professional conduct, the board shall send notice of the final action to any hospital in which the licensee has clinical privileges, as indicated by the licensee.    The board may issue cease-and-desist orders under the circumstances and in accordance with the procedures specified in section 12-20-405; except that the board:   May also issue a cease-and-desist order on its own motion; and    May only issue a cease-and-desist order when it appears that a licensee is acting in a manner that is an imminent threat to the health and safety of the public.       If a physician has a restriction placed on his or her license, the restriction shall, if practicable, state whether the restriction prohibits the physician from making a medical marijuana recommendation.     History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 1195, § 1, effective October 1; (4)(c)(IV) amended,(SB 19-193), ch. 406, p. 3589, § 14, effective October 1.    Editor's note:    This section is similar to former § 12-36-118 as it existed prior to 2019; except that § (3)(b) was relocated to § 12-20-402.    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.     ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. JURISDICTION OF STATE BOARD OF MEDICAL EXAMINERS.    III. FULL AND FAIR OPPORTUNITY TO BE HEARD.    IV. REVOCATION OF LICENSE.   A. In General.    B. Grounds for Revocation.        I. GENERAL CONSIDERATION.   Law reviews. For article, “Law and Strategy in Licensing Disciplinary Proceedings”, see 18 Colo. Law. 647 (1988). For article, “Changes in the Medical Practice Act”, see 24 Colo. Law. 2155 (1995).   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   The attorney general has avoided violating due process and avoided the appearance of impropriety by establishing an internal system that allows the office to act as both an advocate and an advisor to the decision-making body in the same administrative case. People ex rel. Woodard v. Brown, 770 P.2d 1373 (Colo. App. 1989), cert. denied, 783 P.2d 1223 (Colo. 1989).   Immunity of members. Members who performed statutory functions, both adjudicatory and prosecutorial in nature, are entitled to the common law absolute immunity from damages liability under 42 U.S.C. § 1983 which has historically been afforded judges, prosecutors, and other officials involved in the judicial process. Horwitz v. Bd. of Med. Exam'rs, 822 F.2d 1508 (10th Cir. 1987), cert. denied, 484 U.S. 964, 108 S. Ct. 453, 98 L. Ed. 2d 394 (1987).   When read in conjunction with § 12-36-104 (1)(b) , this section authorizes the attorney general to issue subpoenas and make investigations before and after filing of the formal complaint. Norton v. Colo. Bd. of Med. Exam'rs, 821 P.2d 897 (Colo. App. 1991).   State board of medical examiners is not required to demonstrate that subpoena duces tecum is justified by more than speculation or conjecture; rather, board is required only to demonstrate that the subpoena was issued for a lawful purpose under the procedures established under this article. Bd. of Med. Exam'rs v. Duhon, 867 P.2d 20 (Colo. App. 1993), aff'd, 895 P.2d 143 (Colo. 1995).   State board of medical examiners is authorized to exercise the subpoena powers specified in § 12-36-104 in connection with any investigation described in subsection (4) of this section. Bd. of Med. Exam'rs v. Duhon, 867 P.2d 20 (Colo. App. 1993), aff'd, 895 P.2d 143 (Colo. 1995).   Probable cause to believe a statutory violation has occurred is not required before issuing an investigative subpoena under this section. Rather, justification for issuance is grounded upon a showing that: (1) the investigation is for a lawfully authorized purpose; (2) the information sought is relevant to the issues being investigated; and (3) the subpoena is sufficiently specific to obtain documents that are adequate but not excessive for the inquiry. Bd. of Med. Exam'rs v. Duhon, 867 P.2d 20 (Colo. App. 1993), aff'd, 895 P.2d 143 (Colo. 1995).   Subpoena duces tecum issued under this section that required doctor to produce complete office records for all cases in which device was used could not be enforced where board could not produce copy of written complaint and clear exposition of act or omission which, if found to have occurred, would constitute unprofessional conduct. Bd. of Med. Exam'rs v. Duhon, 867 P.2d 20 (Colo. App. 1993), aff'd, 895 P.2d 143 (Colo. 1995).   1995 amendment to this section allows investigation of a physician by the inquiry panel prior to the initiation of the informal complaint procedure, and there is nothing in this section that would indicate that the permissible scope of the pre-response investigation excludes the issuance of subpoenas. Colo. State Bd. of Med. Exam'rs v. Khan, 984 P.2d 670 (Colo. App. 1999).   Subsection (4)(a) does not prevent the attorney general from investigating complaints which are referred to the attorney general's office for preparation and filing of a formal complaint. Norton v. Colo. Bd. of Med. Exam'rs, 821 P.2d 897 (Colo. App. 1991).   The board's investigatory or disciplinary authority or its authority to issue subpoenas is not conditioned on the legal validity of the process that resulted in the underlying complaint, nor is the board required to investigate the legal validity of that process. Colo. Med. Bd. v. McLaughlin, 2019 CO 93, 451 P.3d 841 .   Complaint contemplated by subsection (4) need not be factually specific and may be general in nature as long as it gives notice of all matters complained of; however, if the nature of the complaint will determine the jurisdiction of the board to act, the board must clearly demonstrate the nature of the complaint. Bd. of Med. Exam'rs v. Duhon, 867 P.2d 20 (Colo. App. 1993), aff'd, 895 P.2d 143 (Colo. 1995).   Statute does not require that there be an actual harmful effect on a medical practice before the board can take action against a physician. Rather, adverse manifest behavior affecting the practice, if any, is relevant to the degree of severity of the sanction imposed for the unprofessional conduct of habitual intemperance. Colo. State Bd. of Med. Exam'rs v. Hoffner, 832 P.2d 1062 (Colo. App. 1992); Colo. Bd. of Med. Exam'rs v. Boyle, 924 P.2d 1113 (Colo. App. 1996).   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 § 12-36-117 (1)(i) . Colo. State Bd. of Med. Exam'rs v. Hoffner, 832 P.2d 1062 (Colo. App. 1992).   The board is afforded great discretion in its determination of the appropriate sanction for unprofessional conduct, and its determination should be upheld on review unless it bears no relation to the conduct, is a gross abuse of discretion, or is manifestly excessive in relation to the needs of the public. Colo. State Bd. of Med. Exam'rs v. Hoffner, 832 P.2d 1062 (Colo. App. 1992).   Subsection (10) does not create a privilege against discovery of the state board of medical examiners investigatory files in a civil lawsuit; however, the discovery process provided in discovery rules and case law must be followed by the trial court in considering privacy assertions. DeSantis v. Simon, 209 P.3d 1069 (Colo. 2009).   II. JURISDICTION OF STATE BOARD OF MEDICAL EXAMINERS.   Section is not an unconstitutional delegation of legislative authority to board of medical examiners to define “misconduct” because “unprofessional conduct”, defined in section 12-36-117 , is the same as “misconduct”, used in this section. Colo. State Bd. of Med. Exam'rs v. Jorgensen, 198 Colo. 275 , 599 P.2d 869 (1979) (decided prior to 1985 amendment to subsection (5)(g)(I)).   Board need not adopt rules and regulations defining “misconduct” because the definition of “unprofessional conduct” given in § 12-36-117 gives advance notice of the application of “misconduct”. Colo. State Bd. of Med. Exam'rs v. Jorgensen, 198 Colo. 275 , 599 P.2d 869 (1979) (decided prior to 1985 amendment to subsection (5)(g)(I)).   The general assembly has power to enact laws regulating the practice of medicine, and in so doing may create within the executive department a board empowered to administer and enforce such laws. Colo. State Bd. of Med. Exam'rs v. District Court, 138 Colo. 227 , 331 P.2d 502 (1958).   The sole original jurisdiction to grant or revoke licenses to practice medicine in compliance with the regulatory provisions of this statute is vested in the state board of medical examiners. Colo. State Bd. of Med. Exam'rs v. District Court, 138 Colo. 227 , 331 P.2d 502 (1958).   The board's authority comes solely from the statute itself and it cannot create new grounds for the revocation of a license. Colo. State Bd. of Med. Exam'rs v. Weiler, 157 Colo. 244 , 402 P.2d 606 (1965).   In addition to this section, the medical board claims that it has legislative powers, delegated to it by the general assembly, but the general assembly cannot delegate its powers, and there is no place in this article where it has been even attempted. Sapero v. State Bd. of Med. Exam'rs, 90 Colo. 568 , 11 P.2d 555 (1932).   The general assembly may not delegate the power to make a law, but it may delegate power to determine some fact or a state of things upon which the law, as prescribed, depends. Sapero v. State Bd. of Med. Exam'rs, 90 Colo. 568 , 11 P.2d 555 (1932).   The completeness of this section is one of the strongest proofs that no delegation of power was intended. Sapero v. State Bd. of Med. Exam'rs, 90 Colo. 568 , 11 P.2d 555 (1932).   Board may review decision and adopt findings different from those of hearing officer where attorney general filed exceptions to decision, complaint charges were not unproven or unfounded, and board expressly concluded that findings were contrary to weight of evidence. Bd. of Med. Exam'rs v. Robertson, 751 P.2d 648 (Colo. App. 1987).   State board of medical examiners abused its discretion by requiring remedial course work for petitioner when it had made no findings of deficiencies at a hearing on the matter. 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 findings of the medical board are persuasive, but not conclusive, and an examination of the record with slavish adherence to the findings and without fidelity to the law and facts would not be a judicial review. Sapero v. State Bd. of Med. Exam'rs, 90 Colo. 568 , 11 P.2d 555 (1932).   Where there is filed with the state medical board a sworn complaint charging a physician with one of the offenses denounced by § 12-36-117 , the board has at once jurisdiction of the subject matter, and where the accused person appears and contests the complaint on its merits, this gives jurisdiction of the person. Thompson v. State Bd. of Med. Exam'rs, 59 Colo. 549 , 151 P. 436 (1915).   Initial decision by ALJ on disciplinary action complaint referred to ALJ pursuant to subsection (5)(g)(II) is not final and is properly reviewable by board under § 12-36-119 . State Bd. of Med. Exam'rs v. Slonim, 844 P.2d 1207 (Colo. App. 1992).   On review of the proceedings the court will not go beyond this and inquire as to the sufficiency of the evidence, or whether the board reached a correct conclusion therefrom. Thompson v. State Bd. of Med. Exam'rs, 59 Colo. 549 , 151 P. 436 (1915).   In reviewing proceedings of board of medical examiners revoking physician's license, review is limited to whether the board had jurisdiction, abused its discretion, or regularly pursued its authority. Glenn v. Colo. State Bd. of Med. Exam'rs, 131 Colo. 586 , 284 P.2d 230 (1955).   Applied in State Bd. of Med. Exam'rs v. Reiner, 786 P.2d 499 (Colo. App. 1989).   III. FULL AND FAIR OPPORTUNITY TO BE HEARD.   The provision of this section giving all persons summoned a full and fair opportunity to be heard is mandatory. Colo. State Bd. of Med. Exam'rs v. Palmer, 157 Colo. 40 , 400 P.2d 914 (1965).   Statute does not mandate that a physician be allowed to testify. It requires only that the physician be given an opportunity to be heard. Norton v. Colo. Bd. of Med. Exam'rs, 821 P.2d 897 (Colo. App. 1991).   There was no denial of due process, and the physician's right to be heard was not violated, where the administrative law judge prohibited the physician from testifying at the hearing after the physician failed to appear for a deposition on five different occasions. Norton v. Colo. Bd. of Med. Exam'rs, 821 P.2d 897 (Colo. App. 1991).   Physician's right to due process was not violated where the opportunity was afforded to participate in the disciplinary hearing at a meaningful time and in a meaningful manner. Colo. Bd. of Med. Exam'rs v. Boyle, 924 P.2d 1113 (Colo. App. 1996).   This section provides for the mailing of notice, but such a provision is for convenience and is among the least satisfactory methods of providing for notice. Colo. State Bd. of Med. Exam'rs v. Palmer, 157 Colo. 40 , 400 P.2d 914 (1965).   Therefore, personal service, with the return thereon showing actual communication of notice to the parties entitled thereto, is much more certain and susceptible of satisfactory proof, and one who receives it by such method cannot be prejudiced. Colo. State Bd. of Med. Exam'rs v. Palmer, 157 Colo. 40 , 400 P.2d 914 (1965).   The time period to request a hearing pursuant to subsection (4)(c)(III) begins 20 days after receipt of the letter of admonition and not 20 days from the date the board determines the letter was undeliverable. The plain meaning of the term “receipt” in subsection (4)(c)(III) requires actual receipt by the physician. Colo. State Bd. of Med. Exam'rs v. Roberts, 42 P.3d 70 (Colo. App. 2001).   Due process certainly cannot be said to have been violated when that method is used. Colo. State Bd. of Med. Exam'rs v. Palmer, 157 Colo. 40 , 400 P.2d 914 (1965).   Due process and notice must be differentiated from service or jurisdiction. Colo. State Bd. of Med. Exam'rs v. Palmer, 157 Colo. 40 , 400 P.2d 914 (1965).   When specific time for a hearing is not expressly provided elsewhere, the administrative code provides that notice of the hearing must be timely, and the licensee shall have “opportunity to submit written data, views, and arguments” in order to afford due process. Colo. State Bd. of Med. Exam'rs v. Palmer, 157 Colo. 40 , 400 P.2d 914 (1965).   Where the board on its own motion was advised that respondent had only two days notice, it should have set the matter at another time reasonably sufficient to give him all of the opportunities for defense to which he was entitled. Colo. State Bd. of Med. Exam'rs v. Palmer, 157 Colo. 40 , 400 P.2d 914 (1965).   For the board to go forward and take evidence in his absence and to summarily act to revoke his license was an abuse of discretion and a violation of his rights to a fair and full hearing under procedural due process. Colo. State Bd. of Med. Exam'rs v. Palmer, 157 Colo. 40 , 400 P.2d 914 (1965).   No licensee has a right to a secret, closed nonpublic hearing before the board. Coe v. United States Dist. Court, 676 F.2d 411 (10th Cir. 1982).   IV. REVOCATION OF LICENSE.   A. In General.   Quite clearly the causes designated in § 12-36-117 are exclusive. Graeb v. State Bd. of Med. Exam'rs, 55 Colo. 523 , 139 P. 1099 (1913).   A physician's license cannot be revoked merely for a violation of professional ethics or the rules of a board of health, because to be actionable, his misdeeds must amount to a breach of law. Sapero v. State Bd. of Med. Exam'rs, 90 Colo. 568 , 11 P.2d 555 (1932).   The state board of medical examiners has jurisdiction to enter an order revoking the license of a physician and surgeon to practice only when such order is based upon competent testimony, and it greatly abuses its discretion when it enters such an order without evidence to support it. McKay v. State Bd. of Med. Exam'rs, 103 Colo. 305 , 86 P.2d 232 (1938).   Any conclusion of the board in a proceeding to revoke the license of a physician to practice must be based upon evidence produced before it. McKay v. State Bd. of Med. Exam'rs, 103 Colo. 305 , 86 P.2d 232 (1938).   The opinion of the board members alone as to the merits of the charges is not sufficient, because in the event of a review of its action the court must have before it the evidence upon which the conclusions of the board were based. McKay v. State Bd. of Med. Exam'rs, 103 Colo. 305 , 86 P.2d 232 (1938).   There is no statutory requirement that in proceedings before the state medical board the evidence shall be preserved, and one who neither asks that it be preserved by the board, or that he be permitted to preserve it, is in no position to urge, on certiorari brought, an abuse of discretion. Thompson v. State Bd. of Med. Exam'rs, 59 Colo. 549 , 151 P. 436 (1915).   When the board disciplines a physician for actions that occur outside of Colorado, the board action is only applicable to the physician's practice of medicine within Colorado. State Bd. of Med. Exam'rs v. Sullivan, 976 P.2d 885 (Colo. App. 1999).   Where physician charged with conduct justifying revocation of his license frankly admitted guilt of the acts charged, the board of medical examiners could not do otherwise than revoke his license, because any other course would be unjustified leniency to the detriment of the public welfare. Glenn v. Colo. State Bd. of Med. Exam'rs, 131 Colo. 586 , 284 P.2d 230 (1955).   B. Grounds for Revocation.   The term “unprofessional” is convertible with “dishonorable”, in the common use of the word, and considered as dishonorable in the common judgment of mankind. Sapero v. State Bd. of Med. Exam'rs, 90 Colo. 568 , 11 P.2d 555 (1932).   The board has exclusive jurisdiction to revoke licensure privileges within Colorado regardless of whether the “unprofessional conduct” occurred within or outside of Colorado. State Bd. of Med. Exam'rs v. Sullivan, 976 P.2d 885 (Colo. App. 1999).   Former clause prohibiting advertisements relative to disease of sexual organs was unconstitutional. Chenoweth v. State Bd. of Med. Exam'rs, 57 Colo. 74 , 141 P. 132 (1913).   The general assembly has no power to confer the authority upon a board of medical examiners to deny to a physician the right to advertise his business. Chenoweth v. State Bd. of Med. Exam'rs, 57 Colo. 74 , 141 P. 132 (1914).   Publication of entirely harmless advertisements that could not injuriously affect the public health, safety, morals, or welfare do not justify revocation. Sapero v. State Bd. of Med. Exam'rs, 90 Colo. 568 , 11 P.2d 555 (1932).   While such publication may be considered unethical by some, or even many, physicians, and may even constitute ground for exclusion from a medical society, it no more justifies the revocation of a physician's license to practice than would a mere breach of etiquette, or the exhibition of table manners that do not conform to the usage of polite society. Sapero v. State Bd. of Med. Exam'rs, 90 Colo. 568 , 11 P.2d 555 (1932).   If this section attempted to make it a ground for revocation of a physician's license, it would be unconstitutional and void. Sapero v. State Bd. of Med. Exam'rs, 90 Colo. 568 , 11 P.2d 555 (1932).   Such advertising does not come within the prohibition of this section. Sapero v. State Bd. of Med. Exam'rs, 90 Colo. 568 , 11 P.2d 555 (1932).   The publication of libelous matter may be sufficient ground for revoking the license of a physician who publishes the libel. State Bd. of Med. Exam'rs v. Spears, 79 Colo. 588 , 247 P. 563, 54 A.L.R. 1498 (1926), appeal dismissed, 275 U.S. 508, 48 S. Ct. 158, 72 L. Ed. 398 (1928).   The state board of medical examiners is supposed to know better than laymen the ethics of their profession and what constitutes reprehensible conduct that makes one unfit to engage or continue in the practice of medicine, but an average layman would not experience much difficulty in arriving at the conclusion that a doctor who, without authority of his patient, reveals to the public through a newspaper the nature of the patient's disease or falsely states that he has cured him of an ailment, in order to increase his practice and professional fees, is not a proper person to practice the healing art. Doran v. State Bd. of Med. Exam'rs, 78 Colo. 153 , 240 P. 335 (1925).   The phrase “manifestly incurable disease” appearing in former statute was held not to refer to condition of a patient and was void for insufficiency. Graeb v. State Bd. of Med. Exam'rs, 55 Colo. 523 , 139 P. 1099 (1913).   The expression “moral turpitude” in this section is not so indefinite as to render the section void. White v. Andrew, 70 Colo. 50 , 197 P. 564 (1921).   The medical board properly revoked the license of a physician who was convicted of a crime involving moral turpitude, which consisted of the sale of morphine by the physician for other than medicinal purposes, and to an habitual user thereof who was not his patient. State Bd. of Med. Exam'rs v. Spears, 79 Colo. 588 , 247 P. 563 (1926), appeal dismissed, 275 U.S. 508, 48 S. Ct. 158, 72 E. Ed. 398 (1928).   Moral turpitude is excluded except in case of conviction in a court of justice, and is in this way eliminated as a basis for revocation under this section. Graeb v. State Bd. of Med. Exam'rs, 55 Colo. 523 , 139 P. 1099 (1913).   A licentiate is not acting in the course of practicing his profession, whether it be medicine or chiropractic, when he sells narcotic drugs to an habitual user for the latter's fancied solace or enjoyment and not as an aid to a cure. State Bd. of Med. Exam'rs v. Spears, 79 Colo. 588 , 247 P. 563 (1926).   The commission of a crime is not sufficient basis for revocation; there must first be a conviction. Graeb v. State Bd. of Med. Exam'rs, 55 Colo. 523 , 139 P. 1099 (1913).   Violations of the federal narcotic laws may be considered by the board in proceeding for the revocation of a physician's license to practice. McKay v. State Bd. of Med. Exam'rs, 103 Colo. 305 , 86 P.2d 232 (1938).   The state board of medical examiners is not vested with jurisdiction to try alleged offenders against federal narcotic laws, and it may not make findings of such violations by a physician and predicate either malpractice, or immoral, unprofessional, or dishonorable conduct thereon. McKay v. State Bd. of Med. Exam'rs, 103 Colo. 305 , 86 P.2d 232 (1938).   Unlawful acts must be established by competent evidence and must be such as to constitute malpractice, or immoral, unprofessional or dishonorable conduct without regard to any law which makes the doing of them an offense, in order to afford grounds for revocation. McKay v. State Bd. of Med. Exam'rs, 103 Colo. 305 , 86 P.2d 232 (1938).   The revocation of a license of a physician to practice on the ground of alleged unwarranted prescription of narcotics, in the absence of a conviction thereof in a court of competent jurisdiction, must be based upon evidence of malpractice in connection with the prescription or administering of the drug, and no such evidence appearing in the record, action of the board of medical examiners in revoking the license will be reversed by the reviewing court. McKay v. State Bd. of Med. Exam'rs, 103 Colo. 305 , 86 P.2d 232 (1938).   Immoral, unprofessional or dishonorable conduct was the most common statutory ground for revocation or suspension. Sapero v. State Bd. of Med. Exam'rs, 90 Colo. 568 , 11 P.2d 555 (1932).   It was essential that a licensed physician be possessed of professional honor, and the general assembly had the power to provide for the revocation of a license to practice medicine for unprofessional or dishonorable conduct, though the physician was not shown to be immoral. Dilliard v. State Bd. of Med. Exam'rs, 69 Colo. 575 , 196 P. 866 (1921).   Manifestly, it was impossible as well as unnecessary for the general assembly to anticipate all evil deeds that the words “immoral, unprofessional, or dishonorable” were intended to cover, hence the wisdom of looking to the usual definition of such words, or “the common judgment of mankind”, for a standard of construction. Sapero v. State Bd. of Med. Exam'rs, 90 Colo. 568 , 11 P.2d 555 (1932).   It would be hardly consistent or reasonable for the court to say that the terms “unprofessional or dishonorable” were too indefinite to justify the revocation of the license of a physician while we disbar attorneys for “malconduct in office”. Dilliard v. State Bd. of Med. Exam'rs, 69 Colo. 575 , 196 P. 866 (1921).   Malpractice consists of a failure to exercise that degree of care and skill in diagnosis or treatment that may reasonably be expected from one licensed and holding himself out as a physician, under the circumstances of the particular case. McKay v. State Bd. of Med. Exam'rs, 103 Colo. 305 , 86 P.2d 232 (1938).   Treatment which is proper, judged by correct medical standards, does not constitute malpractice even though it amounts to a violation of law. McKay v. State Bd. of Med. Exam'rs, 103 Colo. 305 , 86 P.2d 232 (1938).   The Americans with Disabilities Act does not preclude the board from revoking a physician's license where the physician suffers from a chronic sleep condition that may endanger the safety of patients. The board determined that, because of the physician's condition, no reasonable accommodation was available that would ensure patient safety. The court upheld the finding of the board because it had a reasonable basis in the law. Colo. State Bd. of Med. Exam'rs v. Ogin, 56 P.3d 1233 (Colo. App. 2002).