Carbaugh v. Asbestos Corporation: Exemptions in the Utah Professional Licensing Act

In this section of the discussion in the Carbaugh case, the applicability of the Utah Professional Licensing Act is discussed with respect to Dr. Schonfeld. 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.

Specifically, in addition to the general exemptions from licensure provided by the Division of Occupational and Professional Licensing Act, (See Footnote) the Act outlines several additional “practices or acts” an individual not licensed to practice medicine in Utah could perform without violating the Act. These individuals and “practices or acts” principally include:

(1) an individual offering emergency aid for no fee;

(2) an individual administering a domestic or family remedy;

(3) a person engaged in the sale of vitamins, health foods, dietary supplements or herbs not otherwise in violation of federal law;

(4) a person engaged in the good faith practice of a religious tenet or belief;

(5) an individual statutorily authorized to withdraw blood to determine drug or alcohol content;

(6) a medical assistant working under the direct supervision of a licensed physician or surgeon;

(7) an individual engaging in the practice of medicine who is licensed in another state and who is providing a public service for a non-commercial purpose without a fee; and

(8) an individual providing expert testimony in a legal proceeding.

See Utah Code Ann. § 58-67-305.

We find that the final exception applies here. In this case, there is no question that Dr. Schonfeld practiced medicine in Utah without a license when he held himself out as a physician, conducted physical examinations, allowed an unlicensed technician to administer pulmonary function tests, rendered medical advice, and diagnosed the plaintiffs with asbestos-related diseases. Dr. Schonfeld performed these “practices or acts” as “an individual providing expert testimony in a legal proceeding” and therefore did not violate the Act. Utah Code Ann. § 58-67-305(8).

We agree with the plaintiffs that the expert witness exception not only allows individuals to hold themselves out as physicians and to offer medical opinions while physically occupying the witness chair in a legal proceeding, but that it allows potential experts to perform medical evaluations and similar medical “practices or acts” as part of their preparation to give their testimony.

Courtesy of the Utah State Courts

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