Thе 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 gаve 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 attеmpt. 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 рrofession 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 оn 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 Chаpter 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,
The standard of review in this eаse is that the AHC decision must be upheld if it was supported by substantial evidence upon the whole record. Section 536.140.-
*442
2(3). The record must be viewed in a light most favorable to the AHC deсision.
State Board of Registration for the Healing Arts v. Finch,
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) licen-sure 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 рhysician. 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,
Legislative intent may also be inferred from a statute’s purpose.
Gaddy v. State Bd. of Registration for the Healing Arts,
Appellant argues that tеstifying 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 naturo-path from practicing medicine without a license, the court in
State v. Scopel,
In another action to enjoin a nаturopathic physician from practicing medicine without a license, the court in
State v. Errington,
that the phrase “practice of medicine” was a term of “common understanding and mеaning 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,
The Board argues that testifying as a non-treating medical expert constitutes the “practice of medicine” because the physician uses his “knowledge of a partiсular field to analyze or ‘diagnose’ the propriety of another practitioner’s actions.” This court disagrees.
Levine notes there are no Missouri eases holding that аcting as a non-treating expert medical witness is subject to discipline under § 334.100.2(5). Levine points out that all of the Board’s cases which discuss the “practice of medicine” definе it as the diagnosis and treatment of the sick. 2 In the Board’s cases, the defendants were disciplined because in the acts complained of they were diagnosing and treating patients in excess of the authority granted by their licenses or without a license at all. The case at bar differs factually from the Board’s cases because Levine was not treating the sick.
The Boаrd maintains that Levine’s opinion of the standard of care rendered to the plaintiff in the medical malpractice action was equivalent to a diagnosis. This court is unwilling to accept the Board’s characterization of “diagnosis.” Levine did not diagnose and treat the sick merely by giving expert testimony as a non-treating physician. Furthermore, under thе plain language of “function” and “duty,” testifying as a non-treating medical expert is not an “obligatory task,” nor “a moral or legal obligation,” nor even an act “expectеd of” a person. This court holds that acting as a non-treating expert medical witness does not constitute the practice of medicine or the function or duty of a licеnsee and that Levine is not subject to discipline under § 334.100.2(5). 3
This holding is supported by a further examination of all of the other subdivisions in § 334.100.2, RSMo Supp.1983 and 1986. Subdivision two lists twenty-one offenses for which the Bоard can cause a complaint to be filed. Of the twenty applying to physicians, only three directly relate to patient care.
See
§ 334.100.2(1), (5) and (21), relating to impaired ability because of controlled substances or alcoholic beverages; gross negligence in performing duties or functions of a profession licensed or regulated by Chapter 334; and incompetency due to various causes, respectively. The other seventeen reasons the Board may cause a complaint to be issued relate tо patient care only indirectly, if at all.
See, e.g.
§ 334.100.2(14) (knowingly falsifying birth or death certificate). If the legislature had wanted to regulate the conduct of a physician acting as a non-treаting expert medical witness, it would have statutorily so provided. The mention of one thing in a statute implies the exclusion of another.
Harrison v. MFA Mut. Ins. Co.,
Notes
. These statutes apply because Levine’s alleged misconduct occurred February 11, 1983, and August 18, 1986.
.
See State v. Errington,
. Levine may be subject to prosecution for perjury under § 575.040, RSMo 1986.