Carbaugh v. Asbestos Corporation: Utah Expert Testimony Exception Discussion

Read the further discussion regarding the expert testimony exception in the Utah Professional Licensing Act, and whether it can be applied in the Carbaugh case. This Opinion involves a number of asbestos plaintiffs who sought relief after finding that their medical expert, although a licensed and credentialed physician in other states, was not licensed to practice medicine in Utah.

The defendants contend that holding oneself out as a physician is within the definition of the practice of medicine and that, therefore, the exception was only meant to allow experts to hold themselves out as physicians while giving testimony in a legal proceeding. This approach, however, does not track the plain language of the statute. Experts who solely offer testimony in legal proceedings do not “practice medicine” as that term is defined by the Act. The Act defines the “practice of medicine,” in relevant part, as follows:

(a) to diagnose, treat, correct, administer anesthesia, or prescribe for any human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, or to attempt to do so, by any means or instrumentality, and by an individual in Utah or outside the state upon or for any human within the state . . . .

(d) to use, in the conduct of any occupation or profession pertaining to the diagnosis or treatment of human diseases or conditions in any printed material, stationery, letterhead, envelopes, signs, or advertisements, the designation “doctor,” “doctor of medicine,” “physician,” “surgeon,” “physician and surgeon,” “Dr.,” “M.D.,” or any combination of these designations in any manner which might cause a reasonable person to believe the individual using the designation is a licensed physician and surgeon.

Id. § 58-67-102(8)(a), (d).

Courtesy of the Utah State Courts

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