[A version of this article originally appeared on page 3 of the June 12, 2017 edition of Minnesota Lawyer]
On May 17, 2017, Governor Mark Dayton signed a law amending the Minnesota Medical Practice Act (“MMPA”) which governs licensure of physicians in the state. Although the changes are considered “housekeeping”, they should be of interest to attorneys representing physicians before the Minnesota Board of Medical Practice, physicians facing potential discipline, and non-physicians using certain professional titles protected by statute.

What is the Medical Practice Act?
The Minnesota Medical Practice Act, Chapter 147 of Minnesota Statutes, is the statute that authorizes the Minnesota Board of Medical Practice (“Board”) to license and discipline physicians in Minnesota. (The Board also has oversight for certain “allied health professionals” such as physician assistants, acupuncture practitioners, respiratory care practitioners, traditional midwives, registered naturopathic doctors, athletic trainers and genetic counselors. Each of these seven other professions is governed by a specific statute. Many other medical professions, such as nurses and dentists, are governed by a separate licensing and disciplinary board as well as a separate statute.) Along with required U.S. residency training and other licensure criteria, a “physician” must have a Doctor of Medicine degree (M.D.), Doctor of Osteopathic Medicine degree (D.O), or an equivalent degree from a non-U.S. medical school, thus not all physicians are M.D.s.

The MMPA authorizes the Board to enforce the minimal standard of care for a Minnesota physician. It allows the Board to impose discipline to restrict or suspend a medical license for certain behavior or circumstances as set forth in the Act. Potential discipline may be in the form of suspension, revocation, limitations or conditions on the physician’s practice of medicine, imposition of a civil penalty, an order that the physician provided unremunerated professional services under supervision, censure, or reprimand. See Section 147.141. All of these forms of discipline, once imposed with regard to a physician are considered public and can be accessed at the Board’s website, www.mn.gov/boards.medical-practice/public/displinary-action.

Changes to the Grounds for Discipline
Perhaps the most significant change to the MMPA is to Section 147.091, subdivision 1, which was amended to clarify and separate the various grounds for potential discipline. Overall, the grounds are very similar, but by splitting them into separate sections and subdivisions, the Board can now be more precise when issuing disciplinary or corrective action. And, any final discipline or stipulated order that might result from a complaint, which is a matter of public record, will be narrower, which protects both the physician and the public from confusion.

For example, a common basis for discipline is Section 147.091 (1)(g), which formerly read:
(g) Engaging in any unethical conduct likely to deceive, defraud, or harm the public, or demonstrating a willful or careless disregard for the health, welfare or safety of a patient; or medical practice which is professionally incompetent . . .
A physician disciplined for “incompetent” practice under the old sub-section (g) would therefore automatically and statutorily be charged with conduct which is “unethical” even though the two terms may have different connotations in terms of public understanding. The amendments also split apart the bases for inability to practice medicine under Subsection (l) and eliminate the use of archaic language like “drunkenness.” The amended statute also broadens the scope of improper prescribing under Subsection (s) and eliminates language regarding referral of a patient for tests which are not medically indicated, among other changes.

The Amended Language
The amendments read, in part, as follows (additions are in underline and deletions are indicated by strike-out):
[147.091] Section 3, Subdivision 1. Grounds listed. The board may refuse to grant a license, may refuse to grant registration to perform interstate telemedicine services, or may impose disciplinary action as described in section 147.141 against any physician. The following conduct is prohibited and is grounds for disciplinary action:

* * *
(g) Engaging in any unethical or improper conduct;, including but not limited to:
(1) conduct likely to deceive, or defraud, or harm the public, or demonstrating a willful or careless disregard for the health, welfare or safety of a patient; or medical practice which is professionally incompetent, in that it;
(2) conduct likely to harm the public;
(3) conduct that demonstrates a willful or careless disregard for the health, welfare, or safety of a patient;
(4) medical practice that is professionally incompetent; and
(5) conduct that may create unnecessary danger to any patient’s life, health, or safety, in any of which cases, proof of actual injury need not be established.
(h) Failure to supervise provide proper supervision, including but not limited to supervision of a:
(1) physician assistant or failure to supervise a;
(2) licensed or unlicensed health care provider; and
(3) physician under any agreement with the board.
(i) Aiding or abetting an unlicensed person in the practice of medicine, except that it is not a violation of this paragraph for a physician to employ, supervise, or delegate functions to a qualified person who may or may not be required to obtain a license or registration to provide health services if that person is practicing within the scope of that person’s license or registration or delegated authority.
(j) Adjudication by a court of competent jurisdiction, within or outside this state, as:
(1) mentally incompetent,;
(2) mentally ill or;
(3) developmentally disabled, or as;
(4) a chemically dependent person,;
(5) a person dangerous to the public,;
(6) a sexually dangerous person,; or
(7) a person who has a sexual psychopathic personality by a court of competent jurisdiction, within or without this state.

Such adjudication shall automatically suspend a license for the duration thereof of the adjudication unless the board orders otherwise.

(k) Engaging in unprofessional conduct. Unprofessional Conduct shall include any departure that departs from or the failure fails to conform to the minimal standards of acceptable and prevailing medical practice in which proceeding case proof of actual injury to a patient need not be established.
(l) Inability to practice medicine with reasonable skill and safety to patients by reason of the following, including but not limited to:
(1) illness, drunkenness,;
(2) intoxication;
(3) use of drugs, narcotics, chemicals, or any other type of material or as a result of any substance;
(4) mental or condition;
(5) physical condition, including;
(6) diminished cognitive ability;
(7) loss of motor skills; or
(8) deterioration through the aging process or loss of motor skills.

* * *

(s) Inappropriate prescribing of or failure to properly prescribe a drug or device, including prescribing a drug or device for other than medically accepted therapeutic or experimental or investigative purposes authorized by a state or federal agency or referring a patient to any health care provider as defined in sections 144.291 to 144.298 for services or tests not medically indicated at the time of referral.

Title Protection
Another change to the MMPA concerns the use of such terms as “physician” and “medical doctor” by non-physicians. Minn. Stat. Section 147.082, Subd. 2 of the MMPA now reads as follows:
Title Protection.

1. A person not licensed under this chapter is prohibited from using the title “doctor of medicine,” “medical doctor,” “doctor of osteopathic medicine,” “osteopathic physician,” “physician,” “surgeon,” “M.D.,” or “D.O.” in the conduct of any occupation or profession pertaining to the diagnosis of human disease or conditions.
3. Nothing in this section shall be construed to prohibit a health care professional from using a title incorporating any of the words specified in paragraph (a), or from using a title or designation that is not specifically protected in paragraph (a), if the title or designation used is permitted under the health care professional’s practice act.

This statutory language in Subdivision 2(a) is not new, it was moved from Section 147.081, Subdivision 3(6) because that section contained certain exceptions for “persons exempted under Section 147.09” which might have suggested that certain non-physicians were entitled to use the protected titles.

Medical Faculty License
Minn. Stat. Section 147.0375, which allows for a non-U.S. physician who has been appointed to serve as a faculty member of a medical school in Minnesota and was issued an immigration visa based on his or her “extraordinary ability in the field of science or as an outstanding professor or researcher” to become licensed without needing to fulfill the two-year U.S. residency requirement, was provisionally added in 2016. In the 2017 session, the Legislature removed an expiration to this section.

Effective Date
These changes become effective on August 1, 2017.
V. John Ella is a public member of the Minnesota Board of Medical Practice. The views expressed are his own, and not of the Board of Medical Practice (or the Legislature).