Results of a Survey to State Medical Boards: Is expert witness testimony the practice of medicine?

Background

In May 2006, the then President of the Coalition and Center for Ethical Medical Testimony (CCEMT), A. Bernard Ackerman, M.D., commissioned the Executive Director of that organization, Bernadette Carr, to conduct a survey of all State Boards of Medical Examiners in the United States about a single statement: “We consider medical expert witness testimony the practice of medicine,” for which two boxes for reply were provided, one titled “Yes” and the other “No.”

Each letter contained a stamped envelope self-addressed to the offices of CCEMT.

By the end of June, CCEMT had received responses from 24 states—14 negative and 10 positive. There also were comments written on some letters, such as about definition of “practice of medicine” in the state of Maryland or a comment from the State Board of Maine to the effect that “There is no specific citation or regulation that lists expert testimony as the practice of medicine.”

A follow-up letter at the end of June went to representatives of the 26 states yet to be heard from, it eliciting another 11 responses, almost all of them in the negative.

It was clear that the still remaining 15 states would have to be contacted by phone and/or e-mail message if the survey were to be complete. In July, CCEMT began to canvass, by telephone, representatives of those states. The task proved to be daunting. One state board, called back twice, informed that “an answer” surely would be forthcoming. With each call, however, the representative became ever more piqued, at last blurting out, “No!” The representative of another State Board, an attorney, declared that the question posed was both contrived and slanted. He also affirmed that his state did not consider medical expert testimony to be the practice of medicine.

Only one representative, of Texas, asked that CCEMT share the results of the survey.

Those efforts, repeated, enabled a final tally of 42 states—27 “No,” 12 “Yes,” and 3 “Ambivalent.” New York, New Jersey, and some other states with large populations, declined, consistently, to comment and/or failed to return messages.

Name of Representative	State	No	Yes	No Position	Ambivalent	Explanation
Gallant, Leslie	AK	x
Bill Trice	AR	x
Miller, Timothy	AZ	x
Thornton, David	CA	x
Miller, Susan	CO	x
Kardys, Jeff	CT	x				*CT -Â No: Provided copy of "Chapter 370: Medicine & Surgery: http://www.cga.ct.gov/2005/pub/Chap370.htm"
McAfee, Gayle	DE	x
Bluthardt, D.	IL	x
Buening, L	KS	x
Karen R. Wulff	MD	x				Letter defining what "practice" means in Maryland
Audesse, Nancy	ME	x				There is no specific citation in statute or regulation that lists expert testimony as the practice of medicine.
Ramsdell, Ray	MN	x
Leach, Robert A.	MO	x
	MS	x
Sletten, Rolf P.	NE	x
	NH	x
Taylor, Penny	NM	x
King, Liz	NV	x
Brown, Bonnie	OK	x
Kelsey, Lyle	PA	x
Troutman, J	RI	x				Pursuant to Medicare Act and Judicial Code this falls to the jurisdiction of the courts.
Hansen, Margaret	TN	x
	UT	x
Maresh, Blake T.	WI	x
Ryan, Thomas	WV	x
Shotwell, Carole	WY	x
Granger, James	D.C.		x
CabralConstance	HI		x
Mowery, Ann	IA		x
Kerr, Nancy	ID		x
Morgan, Mallan G.	MT		x			See Encl. (Copy of Proposed Regulations)
Worsech, J	NC		x
Henderson, R. D	ND		x
	OR		x
Crausman, R..S.	SC		x
Duke, Bruce F.	SD		x
Jackson, Craig J.	VT		x
DiStabile, Paula	WA		x
Rinebold, M	IN			x
Schmidt, C.	KY			x	x	*Depends
LaSharn Hughes	GA				x
	MA					Did not answer
Manning, R	MI				x
	TOTAL	26	12	2	3

In sum and in short, more than two thirds of state boards throughout the United States do not consider medical expert testimony to be the practice of medicine.