The information on this page was last updated by Horty, Springer & Mattern on January 15, 2019.
N.Y. Pub. Health Law §230 State board for professional medical conduct; proceedings.
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11. Reporting of professional misconduct:
(a) The medical society of the state of New York, the New York state osteopathic society or any district osteopathic society, any statewide medical specialty society or organization, and every county medical society, every person licensed pursuant to articles one hundred thirty-one, one hundred thirty-one-B, one hundred thirty-three, one hundred thirty-seven and one hundred thirty-nine of the education law, and the chief executive officer, the chief of the medical staff and the chairperson of each department of every institution which is established pursuant to article twenty-eight of this chapter and a comprehensive health services plan pursuant to article forty-four of this chapter or article forty-three of the insurance law, shall, and any other person may, report to the board any information which such person, medical society, organization institution or plan has which reasonably appears to show that a licensee is guilty of professional misconduct as defined in sections sixty-five hundred thirty and sixty-five hundred thirty-one of the education law. Such reports shall remain confidential and shall not be admitted into evidence in any administrative or judicial proceeding except that the board, its staff, or the members of its committees may begin investigations on the basis of such reports and may use them to develop further information.
(b) Any person, organization, institution, insurance company, osteopathic or medical society who reports or provides information to the board in good faith, and without malice shall not be subject to an action for civil damages or other relief as the result of such report.
(c) Notwithstanding the foregoing, no physician shall be responsible for reporting pursuant to paragraph (a) of this subdivision with respect to any information discovered by such physician solely as a result of:
(i) Participation in a properly conducted mortality and/or morbidity conference, departmental meeting or a medical or tissue committee constituted pursuant to the by-laws of a hospital which is duly established pursuant to article twenty-eight of the public health law, unless the procedures of such conference, department or committee of such hospital shall have been declared to be unacceptable for the purpose hereof by the commissioner, and provided that the obligations of reporting such information when appropriate to do so shall be the responsibility of the chairperson of such conference, department or committee, or
(ii) [Expires July 1, 2023, pursuant to L.1983, c. 426, § 5.] Participation and membership during a three year demonstration period in a physician committee of the Medical Society of the State of New York or the New York State Osteopathic Society whose purpose is to confront and refer to treatment physicians who are thought to be suffering from alcoholism, drug abuse, or mental illness. Such demonstration period shall commence on April first, nineteen hundred eighty and terminate on May thirty-first, nineteen hundred eighty-three. An additional demonstration period shall commence… April first, two thousand eighteen and terminate on July first, two thousand twenty-three [effective April 12, 2018] provided, however, that the commissioner may prescribe requirements for the continuation of such demonstration program, including periodic reviews of such programs and submission of any reports and data necessary to permit such reviews. During these additional periods, the provisions of this subparagraph shall also apply to a physician committee of a county medical society.
(d) In the event that a physician or administrator of a hospital established pursuant to article twenty-eight of this chapter shall reasonably be unable to determine if any information which he or she has is such that it does reasonably appear to show that a licensee is guilty of professional misconduct and therefore creates an obligation on such physician or such administrator to make a report pursuant to paragraph (a) hereof, he or she may either:
(i) in accordance with procedures established by the board, and without revealing the name of the licensee who he or she is considering making such a report about, request in writing the advice of the board as to whether or not a report should be made, and the physician or administrator so requesting such advice shall then be required to comply with the advice of the board. No such request for advice shall relieve the requesting physician or administrator of any obligation hereunder unless all other material facts are revealed, other than the name of the licensee in question, or
(ii) in the case where the licensee about whom another physician is considering making such report is affiliated with a hospital which is duly established pursuant to article twenty-eight of this chapter, a physician may elect to fulfill the obligations of paragraph (a) hereof by reporting such information to the appropriate executive committee or professional practices peer review committee which is duly constituted pursuant to by-laws of such hospital, unless the peer review procedures of such hospital shall have been declared to be unacceptable for the purposes hereof by the commissioner. The physician members of such hospital executive committee or professional practices peer review committee shall thereupon have the responsibility of reporting such information to the board pursuant to paragraph (a) hereof, as required thereby, but in the event that such committee determines that a report shall be made to the board, the chairperson of such committee may fulfill the obligation of reporting on behalf of all the members of the committee, or
(iii) in a case where the physician, about whom he or she is considering making such report, is a member of a county medical society or district osteopathic society, and is not affiliated with a hospital, but practices his or her profession within such county or district, a physician may elect to fulfill the obligations of paragraph (a) hereof by reporting such information to the appropriate county medical society’s or district osteopathic society’s professional practices review committee duly constituted pursuant to the by-laws of such county medical society or district osteopathic society, unless the review procedures of such county medical society or district osteopathic society shall have been declared to be unacceptable for the purposes hereof by the commissioner. The physician members of such review committee shall thereupon have the responsibility of reporting such information to the board pursuant to paragraph (a) hereof, as required thereby, but in the event that such committee determines that a report shall be made to the board, the chairperson of such committee may fulfill the obligation of reporting on behalf of all the members of the committee.
(e) Nothing contained in this subdivision shall be so construed as to require any physician to violate a physician/patient privilege and therefore, no physician shall be required to report any information to the board which such physician has learned solely as a result of rendering treatment to another physician.
(f) A violation of this subdivision shall not be subject to the provisions of sections twelve and twelve-b of this chapter.
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Except as herein provided and notwithstanding any other provision of law, neither the proceedings nor the records of any such physician committee shall be subject to disclosure under article thirty-one of the civil practice law and rules nor shall any member of any such committee nor any person in attendance at any such meeting be required to testify as to what transpired thereat.
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§2803-e Reporting incidents of possible professional misconduct.
1. (a) Hospitals and other facilities approved pursuant to this article shall make a report or cause a report to be made within thirty days of the occurrence of any of the following: the suspension, restriction, termination or curtailment of the training, employment, association or professional privileges or the denial of the certification of completion of training of an individual licensed pursuant to the provisions of title eight of the education law or of a medical resident with such facility for reasons related in any way to alleged mental or physical impairment, incompetence, malpractice or misconduct or impairment of patient safety or welfare; the voluntary or involuntary resignation or withdrawal of association or of privileges with such facility to avoid the imposition of disciplinary measures; or the receipt of information which indicates that any professional licensee or medical resident has been convicted of a crime; the denial of staff privileges to a physician if the reasons stated for such denial are related to alleged mental or physical impairment, incompetence, malpractice, misconduct or impairment of patient safety or welfare.
(b) Hospitals and other facilities approved pursuant to this article shall make a report or cause a report to be made within thirty days of obtaining knowledge of any information which reasonably appears to show that a physician is guilty of professional misconduct as defined in section sixty-five hundred thirty or sixty-five hundred thirty-one of the education law. A violation of this paragraph shall not be subject to the provisions of section twelve-b of this chapter.
2. Reports of possible professional misconduct made pursuant to this section shall be made in writing to the education department with respect to all individuals licensed pursuant to title eight of the education law except that such reports shall be made to the department of health in the case of physicians, physician’s assistants and specialist’s assistants. Written reports shall include the following information: (a) name, address, profession and license number of the individual; (b) a description of the action taken by the hospital including the reason for the action and the date thereof, or the nature of the action or conduct which led to the resignation or withdrawal, and the date thereof, stated with sufficient specificity to allow a reasonable person to understand which of the reasons enumerated in subdivision one of this section led to the action of the hospital or the resignation or withdrawal of the individual, and, if the reason was an act or omission of the individual, the particular act or omission; (c) any criminal conviction of which the hospital has knowledge; and (d) such other information as the education department or the department of health shall require.
3. (a) Any report or information furnished to the education department or department of health in accordance with the provisions of this section shall be deemed a confidential communication and shall not be subject to inspection or disclosure in any manner except upon formal written request by a duly authorized public agency or pursuant to a judicial subpoena issued in a pending action or proceeding.
(b) Any person, facility or corporation which makes a report pursuant to this section in good faith and without malice shall have immunity from any liability, civil or criminal, for having made such a report. For the purpose of any proceeding, civil or criminal, the good faith of any person required to make a report shall be presumed.
N.Y. Education Law § 6530. Definitions of professional misconduct
Each of the following is professional misconduct, and any licensee found guilty of such misconduct under the procedures prescribed in section two hundred thirty of the public health law shall be subject to penalties as prescribed in section two hundred thirty-a of the public health law except that the charges may be dismissed in the interest of justice:
1. Obtaining the license fraudulently;
2. Practicing the profession fraudulently or beyond its authorized scope;
3. Practicing the profession with negligence on more than one occasion;
4. Practicing the profession with gross negligence on a particular occasion;
5. Practicing the profession with incompetence on more than one occasion;
6. Practicing the profession with gross incompetence;
7. Practicing the profession while impaired by alcohol, drugs, physical disability, or mental disability;
8. Being a habitual abuser of alcohol, or being dependent on or a habitual user of narcotics, barbiturates, amphetamines, hallucinogens, or other drugs having similar effects, except for a licensee who is maintained on an approved therapeutic regimen which does not impair the ability to practice, or having a psychiatric condition which impairs the licensee’s ability to practice;
9. (a) Being convicted of committing an act constituting a crime under:
(i) New York state law or,
(ii) federal law or,
(iii) the law of another jurisdiction and which, if committed within this state, would have constituted a crime under New York state law;
(b) Having been found guilty of improper professional practice or professional misconduct by a duly authorized professional disciplinary agency of another state where the conduct upon which the finding was based would, if committed in New York state, constitute professional misconduct under the laws of New York state;
(c) Having been found guilty in an adjudicatory proceeding of violating a state or federal statute or regulation, pursuant to a final decision or determination, and when no appeal is pending, or after resolution of the proceeding by stipulation or agreement, and when the violation would constitute professional misconduct pursuant to this section;
(d) Having his or her license to practice medicine revoked, suspended or having other disciplinary action taken, or having his or her application for a license refused, revoked or suspended or having voluntarily or otherwise surrendered his or her license after a disciplinary action was instituted by a duly authorized professional disciplinary agency of another state, where the conduct resulting in the revocation, suspension or other disciplinary action involving the license or refusal, revocation or suspension of an application for a license or the surrender of the license would, if committed in New York state, constitute professional misconduct under the laws of New York state;
(e) Having been found by the commissioner of health to be in violation of article thirty-three of the public health law;
10. Refusing to provide professional service to a person because of such person’s race, creed, color or national origin;
11. Permitting, aiding or abetting an unlicensed person to perform activities requiring a license;
12. Practicing the profession while the license is suspended or inactive as defined in subdivision thirteen of section two hundred thirty of the public health law, or willfully failing to register or notify the department of education of any change of name or mailing address, or, if a professional service corporation, willfully failing to comply with sections fifteen hundred three and fifteen hundred fourteen of the business corporation law or, if a university faculty practice corporation wilfully failing to comply with paragraphs (b), (c) and (d) of section fifteen hundred three and section fifteen hundred fourteen of the business corporation law;
13. A willful violation by a licensee of subdivision eleven of section two hundred thirty of the public health law;
14. A violation of section twenty-eight hundred three-d, twenty-eight hundred five-k or subparagraph (ii) of paragraph (h) of subdivision ten of section two hundred thirty of the public health law; or
15. Failure to comply with an order issued pursuant to subdivision seven, paragraph (a) of subdivision ten, and subdivision seventeen of section two hundred thirty of the public health law;
16. A willful or grossly negligent failure to comply with substantial provisions of federal, state, or local laws, rules, or regulations governing the practice of medicine;
17. Exercising undue influence on the patient, including the promotion of the sale of services, goods, appliances, or drugs in such manner as to exploit the patient for the financial gain of the licensee or of a third party;
18. Directly or indirectly offering, giving, soliciting, or receiving or agreeing to receive, any fee or other consideration to or from a third party for the referral of a patient or in connection with the performance of professional services;
19. Permitting any person to share in the fees for professional services, other than: a partner, employee, associate in a professional firm or corporation, professional subcontractor or consultant authorized to practice medicine, or a legally authorized trainee practicing under the supervision of a licensee. This prohibition shall include any arrangement or agreement whereby the amount received in payment for furnishing space, facilities, equipment or personnel services used by a licensee constitutes a percentage of, or is otherwise dependent upon, the income or receipts of the licensee from such practice, except as otherwise provided by law with respect to a facility licensed pursuant to article twenty-eight of the public health law or article thirteen of the mental hygiene law;
20. Conduct in the practice of medicine which evidences moral unfitness to practice medicine;
21. Willfully making or filing a false report, or failing to file a report required by law or by the department of health or the education department, or willfully impeding or obstructing such filing, or inducing another person to do so;
22. Failing to make available to a patient, upon request, copies of documents in the possession or under the control of the licensee which have been prepared for and paid for by the patient or client;
23. Revealing of personally identifiable facts, data, or information obtained in a professional capacity without the prior consent of the patient, except as authorized or required by law;
24. Practicing or offering to practice beyond the scope permitted by law, or accepting and performing professional responsibilities which the licensee knows or has reason to know that he or she is not competent to perform, or performing without adequate supervision professional services which the licensee is authorized to perform only under the supervision of a licensed professional, except in an emergency situation where a person’s life or health is in danger;
25. Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified, by training, by experience, or by licensure, to perform them;
25-a. With respect to any non-emergency treatment, procedure or surgery which is expected to involve local or general anesthesia, failing to disclose to the patient the identities of all physicians, except medical residents in certified training programs, podiatrists and dentists, reasonably anticipated to be actively involved in such treatment, procedure or surgery and to obtain such patient’s informed consent to said practitioners’ participation;
26. Performing professional services which have not been duly authorized by the patient or his or her legal representative;
27. Advertising or soliciting for patronage that is not in the public interest. (a) Advertising or soliciting not in the public interest shall include, but not be limited to, advertising or soliciting that: (i) is false, fraudulent, deceptive, misleading, sensational, or flamboyant;
(ii) represents intimidation or undue pressure;
(iii) uses testimonials;
(iv) guarantees any service;
(v) makes any claim relating to professional services or products or the costs or price therefor which cannot be substantiated by the licensee, who shall have the burden of proof;
(vi) makes claims of professional superiority which cannot be substantiated by the licensee, who shall have the burden of proof; or
(vii) offers bonuses or inducements in any form other than a discount or reduction in an established fee or price for a professional service or product.
(b) The following shall be deemed appropriate means of informing the public of the availability of professional services:
(i) informational advertising not contrary to the foregoing prohibitions; and
(ii) the advertising in a newspaper, periodical or professional directory or on radio or television of fixed prices, or a stated range of prices, for specified routine professional services, provided that if there is an additional charge for related services which are an integral part of the overall service being provided by the licensee, the advertisement shall so state, and provided further that the advertisement indicates the period of time for which the advertised prices shall be in effect.
(c)(i) All licensees placing advertisements shall maintain, or cause to be maintained, an exact copy of each advertisement, transcript, tape or video tape thereof as appropriate for the medium used, for a period of one year after its last appearance. This copy shall be made available for inspection upon demand of the department of health;
(ii) A licensee shall not compensate or give anything of value to representatives of the press, radio, television or other communications media in anticipation of or in return for professional publicity in a news item;
(d) No demonstrations, dramatizations or other portrayals of professional practice shall be permitted in advertising on radio or television;
28. Failing to respond within thirty days to written communications from the department of health and to make available any relevant records with respect to an inquiry or complaint about the licensee’s professional misconduct. The period of thirty days shall commence on the date when such communication was delivered personally to the licensee. If the communication is sent from the department of health by registered or certified mail, with return receipt requested, to the address appearing in the last registration, the period of thirty days shall commence on the date of delivery to the licensee, as indicated by the return receipt;
29. Violating any term of probation or condition or limitation imposed on the licensee pursuant to section two hundred thirty of the public health law;
30. Abandoning or neglecting a patient under and in need of immediate professional care, without making reasonable arrangements for the continuation of such care, or abandoning a professional employment by a group practice, hospital, clinic or other health care facility, without reasonable notice and under circumstances which seriously impair the delivery of professional care to patients or clients;
31. Willfully harassing, abusing, or intimidating a patient either physically or verbally;
32. Failing to maintain a record for each patient which accurately reflects the evaluation and treatment of the patient, provided, however, that a physician who transfers an original mammogram to a medical institution, or to a physician or health care provider of the patient, or to the patient directly, as otherwise provided by law, shall have no obligation under this section to maintain the original or a copy thereof. Unless otherwise provided by law, all patient records must be retained for at least six years. Obstetrical records and records of minor patients must be retained for at least six years, and until one year after the minor patient reaches the age of eighteen years;
33. Failing to exercise appropriate supervision over persons who are authorized to practice only under the supervision of the licensee;
34. Guaranteeing that satisfaction or a cure will result from the performance of professional services;
35. Ordering of excessive tests, treatment, or use of treatment facilities not warranted by the condition of the patient;
36. Claiming or using any secret or special method of treatment which the licensee refused to divulge to the department of health;
37. Failing to wear an identifying badge, which shall be conspicuously displayed and legible, indicating the practitioner’s name and professional title authorized pursuant to this chapter, while practicing as an employee or operator of a hospital, clinic, group practice or multi-professional facility, or at a commercial establishment offering health services to the public;
38. Entering into an arrangement or agreement with a pharmacy for the compounding and/or dispensing of coded or specially marked prescriptions;
39. With respect to all professional practices conducted under an assumed name, other than facilities licensed pursuant to article twenty-eight of the public health law or article thirteen of the mental hygiene law, failing to post conspicuously at the site of such practice the name and licensure field of all of the principal professional licensees engaged in the practice at that site (i.e., principal partners, officers or principal shareholders);
40. Failing to provide access by qualified persons to patient information in accordance with the standards set forth in section eighteen of the public health law as added by chapter 497 of the laws of 1986;
41. Knowingly or willfully performing a complete or partial autopsy on a deceased person without lawful authority;
42. Failing to comply with a signed agreement to practice medicine in New York state in an area designated by the commissioner of education as having a shortage of physicians or refusing to repay medical education costs in lieu of such required service, or failing to comply with any provision of a written agreement with the state or any municipality within which the licensee has agreed to provide medical service, or refusing to repay funds in lieu of such service as consideration of awards made by the state or any municipality thereof for his or her professional education in medicine, or failing to comply with any agreement entered into to aid his or her medical education;
43. Failing to complete forms or reports required for the reimbursement of a patient by a third party. Reasonable fees may be charged for such forms or reports, but prior payment for the professional services to which such forms or reports relate may not be required as a condition for making such forms or reports available;
44. In the practice of psychiatry, (a) any physical contact of a sexual nature between licensee and patient except the use of films and/or other audiovisual aids with individuals or groups in the development of appropriate responses to overcome sexual dysfunction and (b) in therapy groups, activities which promote explicit physical sexual contact between group members during sessions; and
45. In the practice of ophthalmology, failing to provide a patient, upon request, with the patient’s prescription including the name, address, and signature of the prescriber and the date of the prescription.
46. A violation of section two hundred thirty-nine of the public health law by a professional.
47. Failure to use scientifically accepted barrier precautions and infection control practices as established by the department of health pursuant to section two hundred thirty-a of the public health law.
48. A violation of section two hundred thirty-d of the public health law or the regulations of the commissioner of health enacted thereunder.
49. Except for good cause shown, failing to provide within one day any relevant records or other information requested by the state or local department of health with respect to an inquiry into a report of a communicable disease as defined in the state sanitary code, or HIV/AIDS.
§ 6531. Additional definition of professional misconduct, limited application
Notwithstanding any inconsistent provision of this article or any other provisions of law to the contrary, the license or registration of a person subject to the provisions of this article and article one hundred thirty-one-B of this chapter may be revoked, suspended, or annulled or such person may be subject to any other penalty provided in section two hundred thirty-a of the public health law in accordance with the provisions and procedures of this article for the following:
That any person subject to the above-enumerated articles has directly or indirectly requested, received or participated in the division, transference, assignment, rebate, splitting, or refunding of a fee for, or has directly requested, received or profited by means of a credit or other valuable consideration as a commission, discount or gratuity, in connection with the furnishing of professional care or service, including x-ray examination and treatment, or for or in connection with the sale, rental, supplying, or furnishing of clinical laboratory services or supplies, x-ray laboratory services or supplies, inhalation therapy service or equipment, ambulance service, hospital or medical supplies, physiotherapy or other therapeutic service or equipment, artificial limbs, teeth or eyes, orthopedic or surgical appliances or supplies, optical appliances, supplies, or equipment, devices for aid of hearing, drugs, medication, or medical supplies, or any other goods, services, or supplies prescribed for medical diagnosis, care, or treatment under this chapter, except payment, not to exceed thirty-three and one-third percent of any fee received for x-ray examination, diagnosis, or treatment, to any hospital furnishing facilities for such examination, diagnosis, or treatment. Nothing contained in this section shall prohibit such persons from practicing as partners, in groups or as a professional corporation or as a university faculty practice corporation, nor from pooling fees and moneys received, either by the partnerships, professional corporations, or university faculty practice corporations or groups by the individual members thereof, for professional services furnished by an individual professional member, or employee of such partnership, corporation, or group, nor shall the professionals constituting the partnerships, corporations or groups be prohibited from sharing, dividing, or apportioning the fees and moneys received by them or by the partnership, corporation, or group in accordance with a partnership or other agreement; provided that no such practice as partners, corporations, or groups, or pooling of fees or moneys received or shared, division or apportionment of fees shall be permitted with respect to and treatment under the workers’ compensation law. Nothing contained in this chapter shall prohibit a corporation licensed pursuant to article forty-three of the insurance law pursuant to its contract with the subscribed from prorationing a medical or dental expenses indemnity allowance among two or more professionals in proportion to the services rendered by each such professional at the request of the subscriber, provided that prior to payment thereof such professionals shall submit both to the corporation licensed pursuant to article forty-three of the insurance law and to the subscriber statements itemizing the services rendered by each such professional and the charges therefor.
N.Y. Comp. Codes, Rules and Regulations tit. 10 §405.3 Administration.
The hospital shall be managed effectively and efficiently in accordance with hospital bylaws and policies and procedures. The daily management and operational affairs of the hospital shall be the responsibility of the chief executive officer.
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(e) Other reporting requirements
(1) The hospital shall report in writing to the Office of Professional Medical Conduct with a copy to the appropriate area administrator of the department’s Office of Health Systems Management within 30 days of the occurrence of denial, suspension, restriction, termination or curtailment of training, employment, association or professional privileges or the denial of certification of completion of training of any physician, registered physician’s assistant or registered specialist’s assistant licensed/registered by the New York State Department of Education for reasons related in any way to any of the following:
(i) alleged mental or physical impairment, incompetence, malpractice, misconduct or endangerment of patient safety or welfare;
(ii) voluntary or involuntary resignation or withdrawal of association or of privileges with the hospital to avoid the imposition of disciplinary measures;
(iii) the receipt of information concerning a conviction of a misdemeanor or felony. The report shall contain:
(a) the name and address of the individual;
(b) the profession and license number;
(c) the date of the hospital’s action;
(d) a description of the action taken; and
(e) the reason for the hospital’s action or the nature of the action or conduct which led to the resignation or withdrawal and the date thereof; and
(iv) the hospital shall establish policies and implement procedures to ensure compliance with these reporting requirements.
(2) The hospital shall furnish to the Department of Education or the Department of Health for individuals licensed by the Department within 30 days of occurrence, a written report of any denial, withholding, curtailment, restriction, suspension or termination of any membership or professional privileges in, employment by or any type of association with a hospital relating to an individual who is a health profession student serving in a clinical clerkship, an unlicensed health professional serving in a clinical fellowship or residency, or an unlicensed health professional practicing under a limited permit or a state licensee, such as an audiologist, licensed master social worker (LMSW), licensed clinical social worker (LCSW), dental hygienist, dentist, medical laboratory technologist, nurse, occupational therapist, ophthalmic dispenser, optometrist, pharmacist, physical therapist, podiatrist, psychologist, radiologic technologist, radiologist assistant, respiratory therapist, respiratory therapy technician or speech-language pathologist for reasons related in any way to any of the following reasons;
(i) Alleged mental or physical impairment, incompetence, malpractice, misconduct or endangerment of patient safety or welfare;
(ii) Voluntary or involuntary resignation or withdrawal of association, employment or privileges with the hospital to avoid imposition of disciplinary measure; and
(iii) The receipt of information concerning a conviction of a misdemeanor or felony. The report shall contain:
(a) The name and address of the individual;
(b) The profession and license number;
(c) The date of the hospital’s action;
(d) A description of the action taken; and
(e) the reason for the hospital’s action or the nature of the action or conduct which lead to the resignation or withdrawal and the date thereof.
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