Missouri Bd. of Registration for the Healing Arts v. Levine

• Decision Date: 14 May 1991
• Docket Number: No. WD,WD
• Citation: 808 S.W.2d 440
• Parties: MISSOURI BOARD OF REGISTRATION FOR THE HEALING ARTS, Appellant, v. Laurence A. LEVINE, M.D., Respondent. 43796.
• Court: Missouri Court of Appeals

Page 440

808 S.W.2d 440

MISSOURI BOARD OF REGISTRATION FOR THE HEALING ARTS, Appellant, v. Laurence A. LEVINE, M.D., Respondent.

No. WD 43796.

Missouri Court of Appeals,

Western District.

May 14, 1991.

William L. Webster, Atty. Gen., Stephanie K. Karl, Asst. Atty. Gen., Jefferson City, for appellant.

J. Thomas Archer, Thomas B. Borton, St. Louis, for respondent.

Before LOWENSTEIN, J., Presiding, and TURNAGE and FENNER, JJ.

LOWENSTEIN, Judge.

The Missouri Board of Registration for the Healing Arts ("Board"), appeals the trial court's affirmance of the Administrative Hearing Commission's ("AHC") decision to dismiss the Board's complaint against Dr. Laurence A. Levine.

Levine specializes in otolaryngology (ear, nose and throat). The Board sought to discipline his license because on two occasions he gave false answers under oath when testifying as a medical expert. First, at a deposition, Levine testified that he had passed the otolaryngology boards on his second attempt. Then, at an unrelated trial, Levine testified that he had passed his boards on his fourth attempt and also denied ever testifying he passed on his second attempt. The Board in its action claimed, that in truth, he actually passed his exam on his fifth attempt.

The Board argued Levine's actions violated § 334.100.2(4) and (5), RSMo 1983 and RSMo 1986. ¹ These provisions provide that the Board may cause a complaint to be filed against a physician for:

(4) Obtaining or attempting to obtain any fee, charge, tuition or other compensation by fraud, deception or misrepresentation;

(5) Incompetency, misconduct, gross negligence, fraud, misrepresentation or dishonesty in the performance of the functions or duties of any profession licensed or regulated by this chapter;

Even though the AHC found that Levine's responses constituted misconduct, misrepresentation and dishonesty, the AHC dismissed the complaint on two grounds. First, the AHC concluded the facts did not establish that Levine obtained fees using misstatements as defined by § 334.100.2(4), RSMo Supp.1983 and RSMo 1986. Second, the AHC concluded that expert testimony by a non-treating physician is not "the practice of medicine" or one of a physician's functions and duties for which a medical license may be suspended or revoked under Chapter 334.

Appellant does not dispute the AHC's first conclusion regarding the inapplicability of part (4) of § 334.100.2, supra. Thus, this court affirms the finding that these facts do not establish that Levine obtained fees, "or other compensation by fraud, deception or misrepresentation," as defined in §§ 334.100.2(4). State ex rel. Holly Inv. Co. v. Board of Zoning Adjustment of Kansas City, 771 S.W.2d 949, 950-51 (Mo.App.1989); Rule 84.04(d).

The standard of review in this case is that the AHC decision must be upheld if it was supported by substantial evidence upon the whole record. Section 536.140.2(3). The record must be viewed in a light most favorable to the AHC decision. State Board of Registration for the Healing Arts v. Finch, 514 S.W.2d 608, 618 (Mo.App.1974).

The Board's point on appeal is that the circuit court erred in upholding the AHC's order dismissing the Board's complaint because (A) the legislature intended the Board to discipline a physician's license for expert medical witness activity; (B) licensure is an evidentiary prerequisite for expert medical testimony; and (C) the AHC record shows that Levine engaged in the type of misconduct contemplated by § 334.100.2(5).

Both parties intensively briefed the issue of whether licensure is an evidentiary prerequisite for expert medical testimony. This court does not reach the issue because it is not dispositive. The dispositive issue is whether the doctor's conduct is prohibited by § 334.100.2(5), RSMo Supp.1983, RSMo 1986.

Appellant argues the legislature intended the Board to discipline a physician's license for improper expert medical witness activity because testifying as an expert is a function or duty of a physician. Legislative intent may be inferred from the statute's language when the words used are given their plain and ordinary meaning. Wolff Shoe Company v. Director of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988). The ordinary meaning of "function" applicable here is: "1: professional or official position: OCCUPATION, 2: the action for which a person or thing is specially fitted or used or for which a thing exists." The shared meaning elements of synonyms of "function" is "the acts or operations expected of a person or thing." Webster's New Collegiate Dictionary, 465 (1977). The ordinary meaning of "duty" applicable here is: "2a: obligatory tasks, conduct, service, or functions that arise from one's position (as in life or in a group). 3a: a moral or legal obligation." Webster's New Collegiate Dictionary, 355 (1977).

Legislative intent may also be inferred from a statute's purpose. Gaddy v. State Bd. of Registration for the Healing Arts, 397 S.W.2d 347, 353 (Mo.App.1965). The primary purpose of statutes authorizing the Board to discipline a physician's license is to safeguard the public health and welfare. Bhuket v. Bd. of Reg. for the Healing Arts, 787 S.W.2d 882, 885 (Mo.App.1990).

Appellant argues that testifying as a non-treating expert medical witness constitutes the "practice of medicine" and, thus, Levine is subject to discipline under § 334.100.2(5). Appellant cites several cases discussing the phrase "practice of medicine." In an action to enjoin a naturopath from practicing medicine without a license, the court in State v. Scopel, 316 S.W.2d 515 (Mo.1958), declined to judicially define what constitutes the practice of medicine in Missouri. Id. at 519. The court stated, however, that diagnosis is an "important and integral part of the practice of medicine," and held that diagnosis and treatment of the sick constituted the "practice of medicine" within the contemplation of Chapter 334. Id.

In another action to enjoin a naturopathic physician from practicing medicine without a license, the court in State v. Errington, 355 S.W.2d 952 (Mo. banc 1962), held:

that the phrase "practice of medicine" was a term of "common understanding and meaning and universally accepted to include, although not necessarily limited to, the acts of one publicly representing himself to be trained in the treatment and cure of ills of the human body and purporting for a fee to diagnose bodily ills and effectuate a cure or an alleviation thereof." Id. at 956, citations omitted.

See also, State v. Missouri Board of Chiropractic Examiners, 365 S.W.2d 773 (Mo.App.1963) (chiropractic doctor who prescribed medicine exceeded the authority granted to him under his license); State v. Leimer, 382 S.W.2d 718 (Mo.App.1964) (naturopath who diagnosed and treated cancer was unlawfully practicing medicine without a license in violation of Chapter 334); State ex rel. Missouri State Bd. v. Southworth, 704 S.W.2d 219 (Mo. banc 1986) (in suit to enjoin defendant for unauthorized practice of medicine or midwifery, court cites the Errington definition of "practice of...