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

“If you asked an average speaker of the English language none of them would say to you that this doctor was engaged in the active clinical practice of medicine, would they?”

Justice DeWine to counsel for Dr. Abdullah

“If you have reasonable minds on both sides disputing to what degree they meet the criteria of this rule, how is the decision to allow him [Dr. Wall] to testify an abuse of discretion as we define it?”

Justice Donnelly, to counsel for the Johnson family

On March 30, 2021, the Supreme Court of Ohio heard 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 and his family sued Dr. Abdullah, alleging negligence in Johnson’s care and treatment during Johnson’s visit to the emergency room. At trial, the Johnson family 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, the trial court 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, 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.

Read the oral argument preview of the case here.

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). 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.)

*Cited by Dr. Abdullah’s counsel at argument.

** Cited by both counsel at argument.

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.

At Oral Argument

Arguing Counsel

John B. Welch, Arnold Todaro Welch & Foliano Co., L.P.A Dayton, for Appellant Dr. Anthony Abdullah

Kevin A. Bowman, Brannon & Associates, Dayton, for Appellees Mark Johnson, Individually and as Guardian of David Johnson, an incompetent, Glenda Johnson and Gary Johnson.

Dr. Abdullah’s Argument

The First District violated longstanding principles that a trial court has the discretion to determine the competency of witnesses, and instead erroneously weighed in on the credibility of an expert witness and substituted its own judgment for that of the trial court.

The defense expert, Dr. Walls, was challenged even at the time the cause of action accrued, although he was clearly competent at that time.  From Dr. Walls’ testimony there isn’t any question that he qualified under the rule at the time care was provided.  He was a full-time practicing emergency room physician. He was chairman of the department of emergency medicine at Brigham and Woman’s Hospital in Boston, full professor at Harvard teaching and editing textbooks, writing and researching.

Evid. R. 601 (D) is written in the present tense. Over the years this court has interpreted the rule to require an expert to spend 50% of his time in the active clinical practice of medicine or its instruction at the time of trial or the time of testimony. But courts have also been relatively clear over the years that when a physician changes his role during the pendency of the case the trial court still has the discretion to find that witness competent to testify under the rule.

There’s no question that during the pendency of the case Dr. Walls’ role did change, plus there was a voluntary dismissal in the case. At the time of trial Dr. Walls was still teaching and writing.  He was a well-published researcher in emergency medicine, particularly in airway management and intubation in the emergency department, the precise issues in this case. Dr. Walls had spent most of his career on that particular subject. But even at the time of trial when his role had changed, he was still editor-in-chief of the major E.R. textbook. It is true that at the time of trial he had no direct bedside patient care.

Going back to the McCrory case, in which a physician who spent 85% of his time in research was deemed competent to testify by this court, the court reasoned that a physician’s duties and activities in clinical research was adjunctive to patient care, and was related to the physicians who are providing the bedside care and treatment of a patient. The same is true of Dr. Walls’ positions during the pendency of this case. The COO position must be filled by a physician because part of that role is to monitor and supervise other physicians who are providing direct patient care. Even though at the time of trial Dr. Walls was admittedly a step removed, active clinical practice of medicine has been defined as including those physicians whose duties are adjunctive to and indirectly affect patient care. That is true for Dr. Walls in his role as COO because everything he does is related to patient care. Plus, he continues to research and write about the issue in this case.

While generally an expert witness must satisfy the 50% rule at the time of testimony, this court held in Cellmer that the trial court has discretion in an appropriate case to deem a physician competent to testify under the rule. A narrow or black-and-white interpretation of the rule has been rejected over the years by this court both in McCrory and Cellmer. While it is true that the average person would probably say active clinical practice means bedside patient care, over the years this court has defined that phrase more broadly. But in this case the appeals court overruled the trial court’s discretion on this issue, despite the voir dire examination done by the trial court on Dr. Walls’ qualifications. The appeals court appeals incorrectly used its own judgment and applied de novo review.

The Johnsons Family’s Argument

Dr. Walls was never competent under the existing evidence rule to give expert testimony, including at the time the care was given. Generally, the rule applies in the present tense, at the time the doctor is testifying. If this were an issue of fact or of credibility the trial court would have absolute discretion, and this would be practically unreviewable on appeal. But this case involves the application of a rule of law. When a court applies a rule of law incorrectly or fails to apply a rule of law, that is an abuse of discretion.

This case was filed in 2015, and when it was refiled, Dr Walls had already been promoted to COO. So, during the entire pendency of this case from filing to trial, he was COO and in his own words was performing 90% purely administrative and executive functions. When the case was refiled, the defense could easily have chosen a different expert, one who was competent to testify.  But when the defense named Dr. Walls as its expert, he was not competent to testify. The rule has to be applied as written even in cases with an expert like Dr. Walls, who is a fine physician. He could have testified about causation, or any number of things but the rule specifically says he cannot testify regarding the standard of care. It is not fair to doctors who are out there practicing to be judged by a doctor who is not practicing. That’s what the rule is about.

It is not true that Dr. Walls’ job requires a doctor because although this is not in the record, Dr. Walls has now been promoted to COO of Mass General and his former job is now being performed by a Masters in Program Management, not a doctor. There’s no evidence in the record that Dr. Walls’ job required him to be a doctor.  He was a doctor who happened to be promoted and the reality is throughout Ohio there are hundreds or maybe thousands of hospital administrators who are not doctors. There is no evidence that Dr. Walls was required to be a doctor to perform this function.

This case is also not about credibility.  No one has ever suggested Dr. Walls was not telling the truth. Dr. Walls absolutely was telling the truth when he said 90% of his time was spent in matters that were purely administrative or executive, when he said he no longer sees patients, and when he said he no longer teaches students or makes rounds with residents. That is why he does not fit the requirements of the evidence rule. There is no possibility of distorting the words “active clinical practice” to include what Dr. Walls does. When making decisions about the standard of care, we only want to hear from doctors who are currently practicing. That’s fair to both sides. Letting Dr. Walls testify was error under the rule because he didn’t qualify. Nor can this be deemed harmless error because it undoubtedly had a very profound effect on the jury’s verdict.

What Was On Their Minds

Evidence Rule 601(E), formerly 601(D)

If you asked an average speaker of the English language none of them would say to you that this doctor was engaged in the active clinical practice of medicine, would they, asked Justice DeWine? What do those words “actively clinically practicing medicine” mean to an average person?

I don’t think that there is any argument that this physician was an expert in this field, in this subject matter, respected in his field and produced learned treatises that other physicians could use to treat their patients successfully by following his directives, noted Chief Justice O’Connor. She added that from her point of view, she’d probably want somebody like that as her expert to explain what went wrong. But that is not what the rule says, she noted, and the court is stuck with the wording of the clinical practice component. She added that the 50% required was probably there to prevent the testimony of hired guns, but that no one was accusing Dr. Wall of that.

Wouldn’t it be a bad precedent for both sides to pay the money to hire an expert that may be competent at the beginning but during the pendency of the case takes on different roles just like Dr. Walls did and may not fit the criteria by the time the case goes to trial, asked Justice Donnelly?

Assume a person was a fourth-year medical student when the events occur and then he or she goes into this area of practice, noted Justice Fischer. Seven years later the person testifies but was never practicing at the time of the occurrence. That person could testify, correct? But what kind of evidence is that? He or she would know the applicable treatment six years later but wouldn’t know it six years earlier, he added.

Dr. Walls’ Role

Dr. Walls had no hands-on patient  responsibilities, did he, asked Chief Justice O’Connor? Is it fair to say he didn’t have a patient that he was the treating physician for? How long had he been COO? He wasn’t involved in the active clinical practice, was he? What exactly does that mean?

In this case isn’t it a fact that the COO position had to be filled by a medical doctor like Dr. Walls, because he had a direct relationship to the care that was being administered in that hospital, asked Justice Donnelly? Wasn’t trial counsel able to cross examine the doctor about all these issues and bring out any perceived weaknesses in his credibility?

How much time did Dr. Walls spend making rounds with other physicians, asked Justice Brunner? He wasn’t really spending that much time in the emergency room as COO and with the other things he was doing, was he? But didn’t his work as COO require close work with other doctors who are practicing so he still had his fingers in the pot but more from a Birdseye view?

Dr. Walls’ Testimony

When the trial court asked Dr. Walls if he spent at least 50% of his time in clinical work, his response was that everything that happens related to patient care in the hospital was his direct responsibility, which is not a direct answer to the question, noted Justice Stewart.  If the question being asked is do you spend 50% of your time in patient care and the answer is as head person in the hospital everything is mine that’s not the same thing, she added.

When Competency Rule Applies

Is there any dispute that Dr. Walls was competent to testify when this action accrued, asked Justice Donnelly? Shouldn’t that be the standard? He added that medical malpractice cases often take years to get to trial, and plaintiffs sometimes dismiss them voluntarily, or, as in this case, experts take on new responsibilities that may not fit with the rule. 

Did Dr. Walls satisfy the competency rule both at the time the cause of action accrued and at the time of his testimony, asked Justice Stewart?

Had the procedures changed from the time Dr. Walls was qualified to the time he testified, asked Justice Brunner?

Role of the Trial Court

Is it within the discretion of the trial court to accept someone as an expert in a particular field even if he or she does not directly satisfy the criteria of the evidence rule, asked Justice Stewart?

Are there other evidence rules that courts have the discretion not to follow, asked Justice DeWine? What other evidence rules fall into that category?

With reasonable mind on both sides disputing to what degree the criteria of this rule are met, how is the decision to allow Dr. Walls to testify an abuse of discretion, asked Justice Donnelly? How is the decision to allow this testimony such a perversity of will that it amounted to an abuse of discretion?

A lot of evidence questions are mixed questions of fact and law, noted Justice Brunner, adding that she thought the court of appeals saw this more a question of law than of fact.  If that’s the case what facts did the trial court have before it on which to base its discretion?

How it Looks from the Bleachers

To Professor Emerita Bettman

Like a win for the Johnson family. I think the Chief really nailed it when she said that Dr. Walls was eminently qualified and respected as an expert in his field, both clinically and in his writings, but the rule is very clear with its 50% requirement which Dr. Walls did not meet at the time of his testimony. To me it makes a lot of sense to say the rule should be applied at the time the incident happened, but that isn’t what the rule says.  For Dr. Abdullah, Mr. Welch stated it was undisputed that Dr. Walls was qualified then, but Mr. Bowman, for the Johnson family, disagreed.  And no one was arguing that there was any conduct by the plaintiffs that justified the trial court to find the 50% rule should apply at any time other than the time of testimony. Mr. Bowman relentlessly stayed on message about the present tense wording of the rule, about the fact that when he testified Dr. Walls did not meet the requirements, and about the fact that credibility is not at issue here. I think those arguments will carry the day. Justice DeWine, as he does frequently, leaned in on the plain language of the rule, getting a concession from Mr. Welch that to a lay person using ordinary language “active clinical practice” means treating the patient at bedside, which Dr. Wall clearly no longer did at the time of his testimony.

Justice Donnelly seemed inclined to find that the trial court properly exercised discretion here, so he may go his own way on this.

To Student Contributor Maria Ruwe

This case was tough to call, but I think it will be a win for the Johnson family. Chief Justice O’Connor and Justice DeWine were adamant that Dr. Walls was not engaged in the “active clinical practice” of medicine. Counsel for Dr. Abdullah, Mr. Welch, pushed back and said that the courts have interpreted “active clinical practice” broadly. Further, Mr. Welch argued that the Court should not necessarily look at the definition of “active clinical practice” as an average person would, but rather how the courts have legally defined the term. When Mr. Welch realized that he was not getting much traction with that argument, he alternatively argued that the trial court had abundant discretion to make these discretionary calls, and the appellate court should not have undertaken de novo review of the issue. Overall, Mr. Welch did a good job with his argument, but he was not intimately familiar with the breakdown of Dr. Walls’ time during the periods at issue. This was surprising to me, as how Dr. Walls spent his time is integral to the case.

Counsel for the Johnson family, Mr. Bowman, emphasized that the text of the rule must govern the case. Mr. Bowman countered some of the hypotheticals presented by the justices by reiterating that the Court is bound by the text of the rule. Also, Mr. Bowman focused on the standard of review that the appellate court may exercise. He argued that the credibility of Dr. Walls was not at issue, and therefore, no factual issue existed. Rather, the trial court had simply not applied the rule. Hence, the court of appeals could overrule the trial court’s holding without first finding an abuse of discretion. For these reasons, I found Johnson’s position more convincing than Dr. Abdullah’s arguments.