(a) All complaints of unprofessional conduct, unauthorized practice of medicine, or medical malpractice shall be referred to the Division of Professional Regulation to be investigated. Complaints alleging potential sexual misconduct by a licensee should be afforded priority by the Division. The Division of Professional Regulation shall formulate charges, if circumstances warrant, by bringing a formal complaint against a person to whom a certificate to practice medicine or otherwise licensed or registered in this State has been issued. (b) The Executive Director shall initiate investigations concerning inability to practice medicine with reasonable skill or safety to patients. The Executive Director with the Board president or the president's designee, shall, after reviewing the results of the investigation, determine whether the person to whom a certificate to practice medicine has been issued is able to practice medicine with reasonable skill and safety to patients, either on a restricted or unrestricted basis. If the Executive Director reasonably believes that a diagnostic mental or physical examination of the person under investigation is necessary, the Executive Director shall order the person to submit to an examination at the person's expense to be conducted by a physician or agency designated by the Executive Director. Every person to whom a certificate to practice medicine has been issued is deemed to have given that person's own consent to submit to a diagnostic mental or physical examination when so directed by the Executive Director, and to have waived all objections to the admissibility of the examination report to the Board. A person who submits to a diagnostic mental or physical examination as ordered by the Executive Director has the right to designate another physician to be present at the examination and to submit an independent report on the examination to the Board. (c) To assist in an investigation of alleged unprofessional conduct, or medical malpractice, or of inability to practice medicine with reasonable skill or safety to patients, the Executive Director, on behalf of the Board, may, by subpoena, compel the production of necessary patient medical records of and patient medical records reviewed by all hospitals, organizations, and healthcare institutions located in the State and by all quality assurance, peer review, and other similar committees, including the records of the Medical Society of Delaware and its committees. A subpoena issued under this subsection is subject to the subpoena restrictions in § 1731A(d) of this title. The Board shall take reasonable steps to protect the identity of the patient in so far as such protection does not, in the opinion of the Board, adversely affect the Board's ability to protect the public interest. (d) In addition to or in lieu of a diagnostic evaluation, the Executive Director may require an applicant for or the holder of a certificate to practice medicine, at the applicant or certificate holder's expense, to complete a formal assessment of professional competency if the Executive Director, after consultation with the President of the Board and at least 1 other physician member of the Board, determines that a formal assessment is warranted to protect the health and safety of present or prospective patients. A formal assessment must be performed by the assessment center established by the Federation of State Medical Boards and the National Board of Medical Examiners, or by another assessment center as the Executive Director directs. A formal assessment may not be required of an applicant or certificate holder by the Executive Director without the written concurrence of the President of the Board and at least 1 other physician member of the Board that the assessment is warranted pursuant to this subsection. (e) When a complaint is made by a law-enforcement agency or employee thereof and involves allegations of criminal activity, the Division of Professional Regulation and the Executive Director shall suspend any new or pending investigation upon a written request to do so by the Delaware Department of Justice or a federal law-enforcement authority. Such written request shall suspend the duty to investigate pursuant to this section, duty to regularly advise the complainant under § 8735 of Title 29, and any other duties that would interfere with the ability of law enforcement to investigate the allegations successfully. The suspension shall remain in effect until the Delaware Department of Justice or federal law enforcement informs the Executive Director in writing that action by the Division of Professional Regulation will not interfere with a pending law-enforcement investigation.
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