The Ohio Supreme Court has ruled that a hospital executive who does not directly oversee treating physicians does not meet the requirements to testify as an expert witness in a medical malpractice suit.

Trial Court

Mark Johnson, Glenda Johnson, and Gary Johnson filed a medical malpractice suit on behalf of their brother, David Johnson. The lawsuit claimed that Dr. Anthony Abdullah was negligent in his treatment of David in 2011.

At trial, Dr. Abdullah called Dr. Ron Walls to testify as an expert witness regarding the standard of care. The Johnsons objected to Dr. Walls’ testimony, arguing that he was not involved in the active clinical practice of medicine. The trial court determined that Dr. Walls was competent to testify and he testified on Dr. Abdullah’s behalf. A jury found that Dr. Abdullah was not negligent in treating David.

Court of Appeals

The Johnsons appealed to the First District Court of Appeals. Upon review, the court addressed only the trial court’s decision to admit the testimony of Dr. Walls. The court noted that Dr. Walls was the chief operating officer of a hospital system, but that his job was “almost entirely administrative.” The court rejected Dr. Abdullah’s argument that Walls was engaged in the active clinical practice of medicine and determined that the trial court should have prevented Dr. Walls from testifying. The court reversed the trial court’s judgment and ordered a new trial.

The Supreme Court of Ohio

Dr. Abdullah appealed to the Supreme Court of Ohio. On appeal, Dr. Abdullah argued that the First District improperly reweighed Dr. Walls’ credibility. The Supreme Court disagreed. It determined that the First District did not find that Dr. Walls’ testimony was untruthful; instead, it had concluded, based on Dr. Walls’ testimony, that Dr. Abdullah had failed to establish that Dr. Walls devoted at least one-half of his professional time to the active clinical practice of medicine.

Evid.R. 601(B) provides in relevant part that a person is disqualified to testify as a witness when the court determines that the person is

(5) …giving expert testimony on the issue of liability in any medical claim, as defined in R.C. 2305.113, asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care, or treatment of any person by a physician or podiatrist, unless: . . .

(b) The person devotes at least one-half of his or her professional time to the active clinical practice in his or her field of licensure, or to its instruction in an accredited school.

In Celmer v. Rodgers, 114 Ohio St.3d 221, 2007-Ohio3697, 871 N.E.2d 557 (plurality opinion), the court explained that the purpose of the active clinical practice requirement was to prevent testimony from physicians who spend most of their time testifying as professional witnesses and lack experiential background in the area at issue in the case. The key issue in Celmer was not whether the expert’s professional activities constituted the active clinical practice of medicine; the key issue was whether a trial court may permit an expert to testify when they did not meet the requirements of Evid.R. 601 at the time the trial took place, but did meet those requirements when the trial was originally supposed to start, but then the trial was delayed by the request of the opposing party. Dr. Abdullah argued that this Celmer exception should apply here to consider the expert’s duties at the time of the alleged malpractice.

The Supreme Court declined to expand the Celmer exception. The court noted that the facts of this case are significantly different from those in Celmer. There, the court carved out a limited exception to consider the expert’s activities at the time the trial was originally scheduled to begin. Here, Dr. Abdullah asked to extend that limited exception to consider an expert’s activities long before this case was even filed.

The court noted that Dr. Walls testified that about 90 percent of his work would be considered purely executive or administrative. It determined that Dr. Abduallah failed to show that Dr. Walls was involved in the active clinical practice of medicine at the time of the trial and affirmed the ruling of the First District Court of Appeals.