Update: On September 22, 2021, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the oral argument here.

On March 30, 2021, the Supreme Court of Ohio will hear oral argument in Mark Johnson, Individually and as Guardian of David Johnson,  an incompetent, Glenda Johnson and Gary Johnson v. Anthony Abdullah, M.D., 2020-0303. At issue in this case is whether an expert witness was sufficiently engaged in the active clinical practice of medicine to qualify as the expert witness in a medical malpractice suit.

Case Background

In 2011, David Johnson underwent an invasive surgery. A few hours after being discharged, Johnson returned to the hospital, complaining of shortness of breath. In attempting to identify Johnson’s condition, Dr. Anthony Abdullah—the emergency room doctor—performed several tests. During one of the tests, Johnson suffered a cardiac arrest, which caused an anoxic brain injury, leaving Johnson in a vegetative state and requiring him to remain in a long-term nursing facility.

Johnson sued Dr. Abdullah, alleging negligence in Johnson’s care and treatment during Johnson’s visit to the emergency room. At trial, Johnson and Dr. Abdullah each provided expert witnesses about whether Dr. Abdullah should have intubated Johnson before he experienced the cardiac arrest. Johnson’s expert witness testified that an earlier intubation by Dr. Abdullah would have avoided Johnson’s anoxic brain injury that caused his vegetative state.

Dr. Abdullah’s expert witness was Dr. Ron Walls, the Chief Operating Officer at Brigham and Women’s Hospital in Boston, and a professor of emergency medicine at Harvard Medical School. His emergency medicine subspecialty was airway management. Dr. Walls testified that the standard of care did not require an earlier intubation because intubation presents its own dangers and none of the circumstances which indicate the proper time to intubate were present in Johnson’s case.

Johnson objected to Dr. Walls’s testimony, asserting that Dr. Walls failed to meet the requirements of Evid.R. 601(D) because Dr. Walls did not engage in the active clinical practice of medicine. After conducting a short voir dire at trial, Hamilton County Court of Common Pleas Judge Robert P. Ruehlman deemed Dr. Walls competent to testify. At the conclusion of the trial, the jury found that Dr. Abdullah had not acted negligently.  

The Appeal

In a unanimous decision authored by Judge Pierre Bergeron and joined by Judges Beth Myers and Candace Crouse, the First District held Dr. Walls should not have been allowed to provide expert testimony at trial because at the time he testified he did not sufficiently engage in the “active clinical practice” of medicine, as required by Evid.R. 601(D).

The First District noted that, to engage in active clinical practice, an expert’s work cannot simply abstractly implicate patient care, but must extend to activities that are so intertwined with patient care that the physician is essentially personally engaged in treating patients, even if the physician is not physically standing next to the patient’s bed. This determination requires a fact-intensive inquiry. As Chief Operating Officer, the court held that Dr. Walls performed an almost entirely administrative function, which was far removed from actual patient care. Because the court declined to equate such administrative work with active clinical practice, the First District concluded that Dr. Walls was incompetent to testify under Evid.R. 601(D).

 Absent delaying tactics by the defense, which did not occur here, an expert’s qualifications must be determined at the time that the expert testifies at trial, not at the time the cause of action accrued or at some other time during the expert’s career. Because Dr. Walls’s qualifications when he testified failed to meet the active clinical practice requirement in Evid.R. 601(D), the First District reversed the trial court’s judgment and remanded for a new trial.

Votes to Accept the Case

Yes: Justices Donnelly, French, Fischer, and Stewart

No: Chief Justice O’Connor and Justices Kennedy and DeWine

Dr. Abdullah’s Proposition of Law Accepted for Review

When reviewing a trial court’s decision on a witness’ competence, an appellate court is not free to weigh in on the credibility of that witness and substitute its own judgment for that of the trial court.

Key Statutes and Precedent

Evid.R. 601(D)* (Experts who testify about liability in a medical malpractice action must devote at least 50% of their professional time to the “active clinical practice” in their field of licensure, or to its instruction in an accredited school.)

*Note: this rule has recently been amended and is now titled Evid.R. 601(B)(5)(b) This preview refers to the rule as Evid.R. 601(D).

McCrory v. State, 67 Ohio St.2d 99 (1981) (holding that the director of clinical research at a pharmaceutical company was engaged in the active clinical practice because the work was “so related or adjunctive to patient care as to be necessarily included in” the definition of active clinical practice. Physicians who assist, direct, or advise attending physicians in their treatment of patients satisfy the active clinical practice requirement.)

Goldstein v. Kean, 10 Ohio App.3d 255 (10th Dist. 1983) (Active clinical practices requires the expert’s professional work to be “the type that forms an essential link in the chain of services and activities which comprise the comprehensive treatment of patients.” A physician who spends 75% of his professional time evaluating workers’ compensation claims and does not personally examine, treat, or diagnose patients is not engaged in the active clinical practice of medicine.)

Cunningham v. St. Alexis Hosp. Med. Ctr., 143 Ohio App.3d 353 (8th Dist. 2001) (holding that a physician who spends 75% “of his time doing research, with the balance spent in patient care” does not meet the active clinical practice requirement.)

Hunt v. Crossroads Psych. & Psychological Ctr., 8th Dist. Cuyahoga No. 79120 (2001) (holding that an expert’s administrative position as chair of the department of psychiatry, which included overseeing the education of medical students, recruiting and maintaining faculty, and performing research, failed to satisfy the active clinical practice requirement.)

Aldridge v. Garner, 2005-Ohio-829 (4th Dist.) (Determining what constitutes active clinical practice requires the court to evaluate “how closely the purported expert’s work is related to patient care.” Physicians who spend 80% of their time at insurance companies reviewing casework, speaking with doctors, and consulting with medical insureds about claims do not fit within the “active clinical practice” definition.)

Celmer v. Rodgers, 2007-Ohio-3697 (“[W]here trial continuances requested by the defense and the insolvency of a defendant’s carrier delay trial for such time as the plaintiff’s medical expert no longer devotes one-half of his professional time to the active clinical practice of medicine, and where the medical expert is not a professional witness, a trial court has discretion to permit that witness to testify as an expert at trial.”)

Witzmann v. Adam, 2011-Ohio-379 (2nd Dist.) (holding that a physician whose administrative role included seeing patients, performing surgeries, and publishing medical articles met the active clinical practice requirement.)

Dr. Abdullah’s Argument

Dr. Walls was competent and qualified to testify at trial because he satisfied the clinical practice or instruction rule under Evid.R. 601(D). Because the trial court is in the best position to determine a witness’s competency to testify, the trial court’s determination should not be overturned absent an abuse of discretion. In applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. Rather, an appellate court may reverse a trial court’s decision on this matter only if the trial court’s decision was unreasonable, arbitrary, or unconscionable.

After examining how Dr. Walls spent his professional time through voir dire, the trial court reasonably found that Dr. Walls was engaged in the active clinical practice of medicine at the time of trial, meeting the requirements of Evid.R. 601(D). In reversing, the appellate court ignored the trial court’s findings and impermissibly substituted its own judgment. Because the trial court had not abused its discretion in determining that Dr. Walls was competent to testify, but rather had carefully evaluated Dr. Walls’ qualifications during a voir dire examination, the trial court’s determination should stand.

Evid.R. 601(D) requires that expert witnesses must spend at least 50% of their time in the active clinical practice of medicine, or its instruction, to be competent to testify on liability issues in a medical malpractice suit. The Supreme Court of Ohio has consistently rejected a narrow interpretation of “active clinical practice.” Additionally, although Evid.R. 601(D) uses the present tense, the rule looks to the past. For example, the Court has allowed an expert who was actively practicing medicine when the alleged negligence occurred to testify, even though, at the time of trial, the expert no longer spent most of his time actively practicing medicine.

When the alleged negligence occurred in this case, and at the time the suit was first filed, Dr. Walls spent 75% of his professional time in the active clinical practice of medicine and its instruction, indisputably meeting the requirements of Evid.R. 601(D). What is crucial is that Dr. Wall met the evidentiary requirement when Dr. Abdullah treated the patient. Dr. Wall continued to spend his time in that manner throughout the first two and a half years of this litigation. At that time, he ceased hands-on practice in the Emergency Department but continued to write and teach about intubation and became responsible for the clinical care of all the patients in his hospital. A significant portion of Dr. Walls’s administrative duties were directly related to patient care, which satisfied the requirement in Evid.R. 601(D).

The purpose of Evid.R. 601(D) is to preclude testimony by physicians who spend significant time testifying against their colleagues as “hired guns.” The rule also operates to prohibit expert witnesses who lack experiential background in the field they wish to judge, which makes their opinions untrustworthy. Additionally, the rule simply establishes the competence of the expert witnesses. Opposing parties are free to attack an expert’s credibility by drawing attention to the expert’s lack of time in clinical practice.

Dr. Walls was anything but a professional witness. Dr. Walls testified that he evaluates three to four cases per year, which accounts for less than 5% of his professional time. Additionally, Dr. Walls has testified for both plaintiffs and defendants equally, which further demonstrates that he was not a “hired gun.” Disqualifying Dr. Walls would not serve the purpose of Evid.R. 601(D). In fact, the appellate court’s ruling would violate the rule’s purpose—it would encourage delay, gamesmanship, and “running out the clock.” A party could disqualify an experienced and qualified physician by delaying the litigation until the expert physician retired. This result is contrary to case law and to the purpose of the rule.

Even if Dr. Walls were disqualified, the appellate court should not have reversed and remanded for a new trial. Additional evidence existed on which the jury could have found that Dr. Abdullah was not liable—two other experts also opined that Dr. Abdullah had not been negligent in his treatment of Johnson. For these reasons, the appellate court’s reversal of a unanimous jury verdict is improper, and the jury verdict for Dr. Abdullah should be reinstated.

Johnson’s Argument

Dr. Walls did not engage in the active clinical practice of medicine, as required by Evid.R. 601(D). He retired from the active clinic practice in 2015. The majority of his time since then is spent in administration and executive concerns, and not the treatment of patients. Accordingly, the appellate court correctly held that Dr. Walls should not have been permitted to testify at trial.

A mistake of law by a trial court constitutes an abuse of discretion. Indeed, the decision whether to apply the correct law or rule is not a matter of a trial court’s discretion. Here, the trial court blatantly ignored the requirements of Evid.R. 601(D). Accordingly, the appellate court correctly and properly found that Dr. Walls was incompetent to testify at trial.

In a medical malpractice case, all experts who testify at trial about liability issues must meet the requirements of Evid.R. 601(D). This requirement mandates that experts must devote at least half of their professional time to the clinical practice of medicine or its instruction. Administrative, executive, or organizational work does not constitute active clinical practice. The caselaw is clear that tasks such as assigning hospital resources and personnel are not active clinical practice of medicine.

Generally, an expert witness in a medical malpractice suit must meet the requirements of Evid.R. 601(D) at the time that the expert testifies at trial. An exception to this general timing rule allows a court to consider an expert’s qualifications at the time of the alleged negligence. However, some justification must be provided to invoke this exception. Additionally, extending the applicable timeframe to when the alleged negligence occurred violates the language of Evid.R. 601(D), which uses present-tense language.

When Dr. Walls testified, 90% of his professional time consisted of administrative activities, which does not meet the requirements in Evid.R. 601(D). Dr. Walls no longer treated patients, and his teaching consisted of a few hours per year. No justification was offered to explain why the exception to the general timing rule should apply. But even if Dr. Walls’s qualifications were considered at the time of the alleged negligence, Dr. Walls would still not be competent to testify. At the of the alleged negligence, Dr. Walls still spent less than half of his professional time on clinical care and instruction—most of his time was spent on administrative and organizational matters.

The purpose of Evid.R. 601(D) is to ensure that an expert who opines on the issue of liability in a medical malpractice claim is suitable by experience to do so. Requiring the expert to have some actual knowledge about the daily care of patients gives credibility to an expert testifying about whether a defendant physician deviated from the standard of care. Additionally, Evid.R. 601(D) aims to prevent physicians who are not involved in direct patient care from passing judgment on those are involved. Because Dr. Walls was not engaged in active clinical practice when he testified, or at the time of the alleged negligence, the appellate court’s decision facilitates the purpose of Evid.R. 601(D) and should be affirmed.  

Johnson’s Proposed Counter Proposition of Law

In reviewing a trial court’s decision regarding the competence of an expert witness under Ohio Rule of Evidence 601(E) (formerly 601(D)), where there is no dispute of fact, the trial court abuses its discretion by permitting a witness to testify when that witness does not meet the requirements of the Rule.

Student Contributor: Maria Ruwe