In assuring compliance with these rules, the duty shall be
on the physician, not on the party who engaged the physician to perform medical
expert activities and not on any other person or entity, to ensure that his or
her medical expert activities comply with these rules. Any physician who claims
to be exempt from these rules shall have the burden of proving to the Board
that the exemption is valid.
Amended May 20, 2010.
References.
Mississippi Code, Sections
11-1-61,
73-25-27,
73-25-29,
73-25-30,
73-25-33,
73-25-34,
73-25-83,
73-25-87,
73-43-11,
73-51-1,
et al
Mississippi Rule of Evidence 702
"Rules, Laws, and Policies of the Mississippi State Board of
Medical Licensure." Published by the Mississippi State Board of Medical
Licensure and available at Internet address
www.msbml.ms.gov
Hall v. Hilbun, 466 So. 2d 856 (Miss. 1985)
Code of Medical Ethics, Current Opinions with Annotations.
Published by the Council on Ethical and Judicial Affairs of the American
Medical Association, 2006-07 edition.
" The Role of Licensing Boards in the Evaluation and
Discipline of the Expert Witness." Authored by William J. Wenner, Jr., M.D.,
J.D. Published in the Journal of Medical Licensure and Discipline, Vol. 90, No.
3, 2004, Pp. 15-20 (collecting cases and scholarly publications)
Findings of Fact adopted by the Mississippi State Board of
Medical Licensure on May 18, 2006.
**
_____________________________
**COMMENT: Based on information
presented to the Board at a public hearing on this matter on March 9, 2006, and
on May 18, 2006, and on research and analysis of information obtained by Board
members and its staff and attorneys, and also on comments received from
numerous sources, including the Board's Consumer Health Committee, leaders of
the medical and legal professions, former judges, officials from the Federation
of State Medical Boards, and members of the public, the Mississippi State Board
of Medical Licensure makes the following Findings of Fact:
1. A physician's professional practice,
conducted pursuant to the privilege of possessing a medical license,
historically has been subject to regulation by other members of the medical
profession, by methods such as peer review, performance evaluation, quality
assurance monitoring, and other methods of regulation. However, there is a
problem in Mississippi with the lack of regulation of medical expert activities
by physicians. This lack of regulation causes the performance of medical expert
activities to be vulnerable to fraud, abuse, dishonesty, deception,
incompetence, and other forms of unprofessional, dishonorable, and unethical
conduct by physician experts, all of which are harmful to the public.
2. A physician's performance of
medical expert activities involves a lawful part of a physician's practice that
is historically an area of state concern and that the Board has the statutory
authority and duty to regulate in order to protect the public.
3. A physician's medical expert activities
involve practices that are likely to affect the health, safety, rights,
remedies, and general welfare of persons in Mississippi.
4. In keeping with the public policy and
provisions of law in Mississippi, the performance of medical expert activities,
regardless of the physician expert's location or state(s) of medical licensure,
is a lawful practice that requires a qualified physician, and is therefore
subject to regulation by, and professional accountability to, the Mississippi
State Board of Medical Licensure.
5. Due to its physician membership and
statutory authority, the Mississippi State Board of Medical Licensure is
uniquely able to establish and enforce licensure requirements, qualification
requirements, and Professional Standards related to the performance of medical
expert activities by physicians, especially with regard to ethical conduct and
competent practice.
6. Regardless
of a physician's state(s) of medical licensure, a physician who performs
medical expert activities in a legal matter has an ethical duty to practice
according to the standards of medical professionalism, to perform all medical
expert activities in an honest and competent manner, and to strive to report to
appropriate entities any physician who is deficient in character or competence
or who engages in fraud or deception.
7. In keeping with the public policy and
provisions of law in Mississippi and principles of medical ethics, it is
unprofessional, dishonorable, and unethical for a physician to willfully state
an opinion or a material fact as a medical expert in the context of a legal
matter that the physician knows or should know is false, or that a reasonable
person could objectively conclude was a misrepresentation or other distortion
of the truth, or was intended by the physician to mislead or deceive a judge,
juror, lawyer, litigant, other expert, hearing officer, administrative body,
investigator, legal authority, or any finder of fact.
8. In adopting these rules, the Mississippi
State Board of Medical Licensure has attempted to tailor these rules as closely
as possible to the current provisions of Mississippi law, in order to regulate
medical expert activities for the legitimate government purpose of protecting
the public and to further other legitimate government purposes in the public
interest.
9. In adopting these
rules, the Mississippi State Board of Medical Licensure states that its intent
is only to regulate the conduct and practice of physicians who perform medical
expert activities in Mississippi. The Board does not intend for these rules to
be subverted or misused by participants in legal proceedings as a procedural
weapon to intimidate or harass a physician expert or to delay or otherwise
complicate the administration of justice.
The Mississippi State Board of Medical Licensure shall
provide a copy of these rules, with these Comments appended, to the Mississippi
Supreme Court, the Mississippi Court of Appeals, the respective conferences of
the Mississippi Circuit, Chancery, and County Judges, the Administrative Office
of the Courts, the Mississippi Attorney General, the United States District
Courts and United States attorneys located in Mississippi, the Mississippi
Workers' Compensation Commission, the Mississippi Bar Association, the
Mississippi State Medical Association, the Federation of State Medical Boards,
and any other appropriate person or organization at the discretion of the
Board's Executive Director, with the request that those organizations give
notice to their members or other interested parties of the existence of these
rules.
