TITLE 43 PROFESSIONS AND BUSINESSES

Section 34. Physicians, Acupuncture, Physician Assistants, Cancer and Glaucoma Treatment, Respiratory Care, Clinical Perfusionists, and Orthotics and Prosthetics Practice, 43-34-1 through 43-34-290.

ARTICLE 2 MEDICAL PRACTICE

43-34-26. License requirement for persons engaged in practice of medicine; qualifications; evaluation program; examinations.

1. 1. Any person who wishes to obtain the right to practice medicine in this state and who was not, prior to March 16, 1970, registered or licensed to practice medicine, either by the State Board of Medical Examiners or the State Board of Examiners in Osteopathy, shall, before it shall be lawful for him or her to practice medicine in this state, make application to the board through the executive director, upon such forms and in such manner as shall be adopted and prescribed by the board, and shall obtain from the board a license to practice medicine. Any person who practices medicine without first having obtained a license shall be deemed to have violated this article. All applicants for a license to practice medicine or for a renewal of any such license which has been revoked shall furnish the board with evidence of good moral character. Applications from candidates to practice medicine or surgery in any of its branches shall be accompanied by proof that the applicant is a graduate of some legally incorporated medical school or osteopathic medical school.
  2. The board by rule or regulation may establish standards for evaluating, inspecting, and approving any medical school or osteopathic medical school. The evaluation procedure may include consideration of reports from any outside agency having expertise in medical school or osteopathic medical school evaluation; provided, however, that the board shall make the final decision on approval of medical schools and osteopathic medical schools. Nothing contained in this Code section shall prevent the approval of medical schools outside of the United States or the licensing of graduates of medical schools outside of the United States if such schools and their graduates comply with the standards established in this Code section and by rule of the board.
2. Each medical school or osteopathic medical school in good standing with the board shall have a minimum preliminary educational requirement of the completion of a two-year premedical college course.
3. Graduates of board approved medical schools or osteopathic medical schools and persons who graduated on or before July 1, 1985, from medical schools or osteopathic medical schools which are not approved by the board must complete one year of a postgraduate residency training program. Persons who graduated after July 1, 1985, from medical schools or osteopathic medical schools which are not approved by the board must complete three years of residency, fellowship, or other postgraduate medical training that is approved by the Accreditation Council for Graduate Medical Education (ACGME), the American Osteopathic Association (AOA), or the board to be eligible for a license to practice medicine in this state. Current certification of any applicant by a member board of the American Board of Medical Specialties may be considered by the board as evidence that such applicant's postgraduate medical training has satisfied the requirements of this paragraph. However, before any such person shall be eligible to receive a license to practice medicine in this state, he or she shall furnish the board with satisfactory evidence of attainments and qualifications under this Code section and the rules and regulations of the board. Nothing contained in this Code section shall be construed so as to require a person who has previously passed an examination given by the board for a license to practice medicine in this state to stand another examination.
4. If the applicant submits proof that he or she has had postgraduate training as required in paragraph (3) of this subsection and if he or she furnishes satisfactory evidence of qualifications under this article and the rules and regulations of the board, he or she shall be eligible to receive a license from the board giving him or her absolute authority to practice medicine in this state.
5. If the date of graduation from an institution mentioned in subparagraph (B) of paragraph (1) of this subsection is on or before January 1, 1967, no proof of postgraduate training in an approved hospital need be submitted to obtain a license from the board.
1. Students who have completed the academic curriculum in residence in a foreign medical school and who:
  1. Have studied medicine at a medical school located outside of the United States, Puerto Rico, and Canada which is approved by the board; and
  2. Have completed all of the formal requirements of the foreign medical school except any postgraduate training equivalent
    may substitute for the postgraduate training equivalent required by a foreign country an academic year of supervised clinical training (clinical clerkship) prior to entrance into the first year of American Medical Association approved graduate education. The supervised clinical training must be under the direction of a medical school approved by the liaison committee on medical education.
2. Before beginning the supervised clinical training, the students must have their academic records reviewed and approved by the medical schools supervising their clinical training and shall pass the Educational Council for Foreign Medical Graduates (ECFMG) qualifying examination.
3. Students who are judged by the sponsoring medical schools to have successfully completed the supervised clinical training shall be eligible to enter the first year of American Medical Association approved graduate training program without completing internship obligations required by the foreign country and without obtaining Educational Council for Foreign Medical Graduates (ECFMG) certification.
For any applicant who has not passed a board approved licensing examination or a board approved specialty board examination or recertification examination within seven years of the date of application, the board shall determine, by an evaluation program established by rule, such person's fitness to resume active status and may require the person to complete a period of evaluated clinical experience and successful completion of an examination. The board may also require a licensee or applicant who is subject to discipline pursuant to Code Section 43-34-9 to take and pass a clinical competency assessment or similar examination approved by the board as a condition of licensure. Nothing contained in this Code section shall be construed so as to require a person who has previously passed an examination approved by the board for a license to practice medicine in this state to stand another examination as a condition of renewal of a current unrestricted license.
The board may approve any examination or examinations that it deems must be passed in order to meet the requirements for licensure. Such examinations shall be in English. The board shall establish the passing score which all applicants for licensure shall meet or exceed. If an applicant fails for the third or any subsequent time any examination which is required to be passed in order to become a licensed practitioner in this state, the applicant shall not be eligible to retake any such examination until such applicant furnishes proof of having completed one year of approved Accreditation Council for Graduate Medical Education (ACGME) postgraduate training.

(Ga. L. 1909, p. 123, § 7; Civil Code 1910, § 1738; Ga. L. 1913, p. 101, §§ 6, 8, 9; Ga. L. 1918, p. 173, §§ 4, 5; Code 1933, §§ 84-907, 84-1207; Ga. L. 1935, p. 412, § 1; Ga. L. 1941, p. 352, § 1; Ga. L. 1966, p. 232, § 1; Ga. L. 1967, p. 826, § 1; Ga. L. 1970, p. 301, § 5; Ga. L. 1972, p. 847, § 1; Ga. L. 1976, p. 403, § 1; Ga. L. 1977, p. 334, § 2; Ga. L. 1978, p. 1381, § 1; Code 1981, §43-34-27; Ga. L. 1983, p. 881, § 1; Ga. L. 1984, p. 1067, § 1; Ga. L. 1992, p. 2062, § 4; Ga. L. 1993, p. 91, § 43; Ga. L. 1999, p. 296, §§ 22, 25; Ga. L. 2005, p. 526, § 1/HB 608; Code 1981, §43-34-26, as redesignated by Ga. L. 2009, p. 859, § 1/HB 509; Ga. L. 2010, p. 878, § 43/HB 1387.)

Cross references.

- English designated as official language, § 50-3-100.

Editor's notes.

- The State Board of Medical Examiners and the State Board of Examiners in Osteopathy, referred to in subparagraph (a)(1)(A) of this Code section, were merged by Ga. L. 1970, p. 301, § 3, to form the Composite State Board of Medical Examiners (now Georgia Composite Medical Board).

Ga. L. 1999, p. 296, § 27, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 1999, except that Sections 12, 13, and 25 of this Act and any other provisions of this Act relating to the transfer of the Composite State Board of Medical Examiners from the jurisdiction of the Secretary of State shall not become effective upon July 1, 1999, if the Governor by executive order issued before that date determines such transfer to be impracticable on that date, in which event those sections and provisions shall become effective upon the effective date specified in that executive order but no later than July 1, 2000." No such executive order was issued.

Ga. L. 2009, p. 859, § 1/HB 509, effective July 1, 2009, redesignated former Code Section 43-34-26 as present Code Section 43-34-22.

JUDICIAL DECISIONS

Right to practice medicine is a valuable property right, in which, under the Constitution and laws of the state, one is entitled to be protected and secure. Yeargin v. Hamilton Mem. Hosp., 225 Ga. 661, 171 S.E.2d 136 (1969), cert. denied, 397 U.S. 963, 90 S. Ct. 997, 25 L. Ed. 2d 255 (1970), later appeal, 229 Ga. 870, 195 S.E.2d 8 (1972).

Medical license is "property" for purposes of forfeiture under 21 U.S.C. § 853. United States v. Dicter, 198 F.3d 1284 (11th Cir. 1999), cert. denied, 531 U.S. 828, 121 S. Ct. 77, 148 L. Ed. 2d 40 (2000).

License to practice medicine is not a contract, and gives licensee no right to continue in practice in future unrestricted, and such license may be revoked for good cause, and such revocation alone is not a taking of property without due process of law. Hughes v. State Bd. of Medical Exmrs., 162 Ga. 246, 134 S.E. 42 (1926).

State's right to set standards and exclude unqualified practitioners.

- State has broad powers to regulate businesses and professions within the state's boundaries, especially when the profession deals so directly with the health and welfare of the people of the state. The state can thus exclude from the practice of medicine those whom the state finds not to be qualified and can set standards for qualification. Oliver v. Morton, 361 F. Supp. 1262 (N.D. Ga. 1973).

Regulatory law leaving field open to those possessing prescribed qualifications is permissible.

- Statute regulating right to practice medicine, but leaving field open to all who possess prescribed qualifications, does not abridge privileges or immunities of citizens in violation of U.S. Const., Art. XIV, Sec. I. Yeargin v. Hamilton Mem. Hosp., 225 Ga. 661, 171 S.E.2d 136 (1969), cert. denied, 397 U.S. 963, 90 S. Ct. 997, 25 L. Ed. 2d 255 (1970), later appeal, 229 Ga. 870, 195 S.E.2d 8 (1972).

Board's refusal of examination because of improper application not jury question.

- Refusal of board to permit person to take examination required of applicants for licenses to practice medicine when such person fails or refuses or is unable for lack of educational qualifications or for other reasons, to make application in form and manner prescribed by the board, is not a judgment from which the defendant may appeal to the jury in a superior court. Berkeley v. State, 74 Ga. App. 711, 41 S.E.2d 265 (1947).

Mere failure to have license to practice does not authorize inference of negligence when one attempts to treat or operate on another and injures that person. Andrews v. Lofton, 80 Ga. App. 723, 57 S.E.2d 338 (1950).

Showing required of physician seeking to recover value of services rendered.

- In action by physician and surgeon to recover value of professional services rendered, burden is on the physician/surgeon to prove that the plaintiff is a physician, that the plaintiff was employed as such, that the physician/surgeon rendered the services alleged, and to show the value of such services as represented by ordinary and reasonable price for services of that nature. Yeates v. Boyd, 50 Ga. App. 331, 177 S.E. 921 (1935).

Plaintiff must show causal relation between lack of license and injury sustained.

- Allegations that duties and inhibitions imposed upon the defendant by statutes as to necessity of having a license to practice medicine or surgery were due to the plaintiff and the child personally, and as members of the public seeking medical and surgical care, and that death of child was a natural and probable consequence of violation of such statutes by the defendant were subject to demurrer (now motion to dismiss) for failure to show anything having a causal relation to the death of the child. Andrews v. Lofton, 80 Ga. App. 723, 57 S.E.2d 338 (1950).

Defendant's holding out as physician is relevant to establish why plaintiff engaged defendant's services.

- Allegations made that the defendant falsely held out as a physician and surgeon, and that the defendant did not possess qualifications necessary for possession of a license are pertinent by way of history or inducement as to why the plaintiff engaged services of the defendant and for that reason should not be stricken on demurrer (now motion to dismiss), though irrelevant on the question of the defendant's negligence. Andrews v. Lofton, 80 Ga. App. 723, 57 S.E.2d 338 (1950).

Cited in Georgia Ass'n of Osteopathic Physicians & Surgeons, Inc. v. Allen, 112 F.2d 52 (5th Cir. 1940); Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973); Blue Cross of Georgia/Atlanta, Inc. v. Grenwald, 148 Ga. App. 486, 251 S.E.2d 585 (1978); Sandford v. Howard, 161 Ga. App. 495, 288 S.E.2d 739 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Board may disapprove internship program admitting academically unqualified persons.

- Internship taken prior to graduation is not disqualified; however, the Composite State Board of Medical Examiners (now Georgia Composite Medical Board) may exercise the board's authority to disapprove internship programs accepting persons not academically prepared to practice as an intern. 1972 Op. Att'y Gen. No. 72-76.

Applicant must be graduate of approved medical school before the applicant is eligible to take examination given by Composite State Board of Medical Examiners. 1972 Op. Att'y Gen. No. 72-26.

Licensee may practice all branches of medicine.

- State of Georgia, acting through State Board of Medical Examiners (now Georgia Composite Medical Board), does not license persons to practice a particular branch of medicine but licenses persons with "absolute authority to practice medicine in this state." 1968 Op. Att'y Gen. No. 68-90.

Osteopaths holding full practice licenses were included within term "licensed doctors of medicine" as that term was used in former Code 1933, §§ 84-907 and 84-1207 (see now O.C.G.A. § 33-19-13). 1971 Op. Att'y Gen. No. 71-133.

Terms "doctors of medicine," "licensed doctors of medicine," "doctors of medicine licensed to practice in the state," and similar terms used in the statutes include persons who have graduated from a medical college and hold a degree of Doctor of Medicine and those who hold the degree of Doctor of Osteopathy. When those terms are used to describe qualifications of physicians to be hired by the Department of Human Resources, the department may hire physicians who have either degree. 1974 Op. Att'y Gen. No. 74-50.

RESEARCH REFERENCES

ALR.

- Constitutionality of statute prescribing conditions of practicing medicine or surgery as affected by question of discrimination against particular school or method, 16 A.L.R. 709; 37 A.L.R. 680; 42 A.L.R. 1342; 54 A.L.R. 600.

Hypnotism as illegal practice of medicine, 85 A.L.R.2d 1128.

Compelling admission to membership in professional association or society, 89 A.L.R.2d 964.

Right to enjoin business competitor from unlicensed or otherwise illegal acts or practices, 90 A.L.R.2d 7.

Recovery back of money paid to unlicensed person required by law to have occupational or business license or permit to make contract, 74 A.L.R.3d 637.

Rights as to notice and hearing in proceeding to revoke or suspend license to practice medicine, 10 A.L.R.5th 1.

Tort claim for negligent credentialing of physician, 98 A.L.R.5th 533.

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