“While Walls’s role was vital and essential to the hospital, he was not engaged in the active practice of medicine or in a role adjunctive to patient care.”

Justice Fischer, opinion of the Court

On September 22, 2021, the Supreme Court of Ohio handed down a merit decision in Johnson v. Abdullah, Slip Opinion No. 2021-Ohio-3304. In a unanimous opinion written by Justice Fischer, in which Justice Stewart concurred in judgement only, the Court held that Dr. Ron Walls, the expert for defendant Dr. Abdullah, did not meet the competence requirement of Evid.R. 601(B)(5). The case was argued March 30, 2021.

Case Background

Appellee Mark Johnson and two of his siblings Glenda and Gary Johnson (collectively, for simplicity, “Johnson”) filed a medical malpractice case against Appellant Dr. Anthony Abdullah, alleging that Abdullah was negligent in his treatment of their brother David Johnson in 2011.

At trial, Abdullah called Dr. Ron Walls to testify as his expert on the standard of care. Johnson argued Walls was not competent to testify since he was not involved in the active clinical practice of medicine and did not meet the requirements of Evid. R. 601. The trial court found Walls competent, and the jury found Abdullah was not negligent in his treatment of Johnson. Johnson appealed.

On the issue pertinent to this appeal, in a unanimous decision the First District Court of Appeals held Walls should not have been allowed to provide expert testimony at trial because at the time he testified his job was almost entirely administrative. He did not sufficiently engage in the “active clinical practice” of medicine, as required by Evid.R. 601(D)(now 601(B)(5).) The judgment of the trial court was reversed, and the case remanded for a new trial.

Read the oral argument preview of the case here and the analysis here.

Key Precedent

Evid.R. 601(B)(5)(b) (in order to be competent to testify about liability in a medical claim, experts 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.)

Rohde v. Farmer, 23 Ohio St.2d 82 (1970) (“where a specific action, ruling or order of the court is required as a matter of law, involving no discretion, the test of “abuse of discretion” should have no application.”)

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.)

United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004) (“proponent of expert testimony always bears the burden to show that his expert is qualified to testify competently regarding the matters he intended to address.”) (internal quotation omitted)

Celmer v. Rodgers, 2007-Ohio-3697 (“generally, an expert witness in a medical malpractice action must meet the requirements of Evid.R. 601[(B)(5)(b)] at the time the testimony is offered at trial,” but the trial court has discretion to make an exception.)

State v. Boles, 187 Ohio App.3d 345 (2nd Dist. 2010) (deeming an “offensive formulation” the Ohio precedent that an “abuse of discretion” is more than an error of law, and stating no court has the authority to commit an error of law.)

State v. Williams, 2012-Ohio-5699 (“the fact that a question of law involves a consideration of the facts or the evidence does not turn it into a question of fact.”)

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.

Does the Court Adopt Abdullah’s Proposition of Law?

The Court does not agree that is what happened in this case.

Merit Decision

Analysis

The appeals court did not find Walls’ testimony to be untruthful. The reason it reversed the trial court’s judgment is that it found that Walls’ testimony failed to establish that Walls devoted at least half his professional time to the active clinical practice of medicine, as required by Evid.R. 601(B)(5). While Walls himself testified that he met this standard, that is not determinative. The appeals court must make this determination independently.

Abdullah’s Argument

Walls is not a hired gun or a professional witness. Because his professional role changed in 2015, pursuant to Celmer v. Rodgers the trial court could look at Walls’ activities at the time the malpractice occurred to determine whether he was qualified to testify at the time of the trial, which was in 2017.  Abdullah posits that before 2015, 75 percent of Walls’ professional time was devoted to the active clinical practice or its instruction, and after 2015 Walls was still engaged in the active clinical practice as everything that happened in the hospital related to patient care was his direct responsibility.

Johnson’s Argument

Prior to 2015, Walls spent most of his professional time on administrative matters and medical-legal consulting work, and after 2015, Walls spent 90% of his time on administrative and executive work.

The parties don’t disagree about what Walls did with his professional time before and after 2015. They disagree over whether his duties can be characterized as the active clinical practice of medicine under Evid. R. 601(B)(5) (formerly 601(D)). The amendments did not change the substance of the pertinent provision.

Overview of Precedent on the Active-Clinical-Practice Requirement

McCrory v. State

In the syllabus of this seminal case interpreting a statutory precursor to the evidence rule, the Court held that “active clinical practice” includes “work [that] is so related or adjunctive to patient care as to be necessarily included in that definition for the purposes of determining fault or liability in a medical claim.” The purpose of this requirement is to preclude the testimony of medical hired guns. And active clinical practice should not be interpreted so narrowly as to include only those at bedside with the patients, and should not exclude those doctors who assist the attending physician in care of the patients, such as pathologists, radiologists, and hematologists.

Celmer v. Rodgers

In this case a trial that was supposed to start was continued at the request of the defense, and then stayed because of the insolvency of a defendant’s insurance carrier. Because of these delays, the trial was held more than two years after its originally scheduled date, at which time the plaintiff’s expert witness no longer devoted at least half his time to the active clinical practice of medicine. The key issue in Celmer, which was a plurality opinion, was whether a trial court has the discretion to allow expert testimony which met the requirements of Evid.R. 601 when the trial was originally scheduled but not at the time of the continued trial date, when the delay was solely at the request of the opposing party. The Court made special note of the fact that the active-clinical-practice requirement is written in the present tense but found it appropriate in this case to apply an exception to the general rule because of the particular facts of the case. The dissent in Celmer emphasized the present tense of the rule and did not think any judicially created exception should override the plain language of the rule.

Timeline of the Johnson case

The original complaint was filed in 2012. Walls was named the expert for the defense in 2013. Johnson voluntarily dismissed the case in 2014. Walls became COO in January of 2015. Johnson refiled the case in April of 2015, and the trial took place in 2017.

Abdullah argued that the Court should evaluate his expert’s qualifications at the time the malpractice occurred, as opposed to the time Walls testified. The Court declined to do so, limiting the Celmer exception to its particular facts, which it found significantly different from the facts in Abdullah’s case. Abdullah did not show that Johnson was stalling until Walls was not competent to testify under the rule. And the Court notes that Abdullah had plenty of time after the complaint was refiled to find a new expert who was qualified under the rule.

Bottom line here: the Court continues to apply the general rule that a witness must meet the active-clinical-practice requirement of Evid.R. 601 at the time the testimony is offered at trial, and thus refuses to consider Walls’ activities before 2015.

Walls’ Qualifications at the Time of Trial

The Court finds the evidence in the case shows that Walls did not meet the active-clinical-practice requirement at the time of trial. He testified that “probably 90% of my work would be characterized as purely executive or administrative.” He elaborated on this statement by testifying that he was responsible for all the teaching and training programs in the hospital, all safety related to patient care, and all clinical operations related to patient care.

Walls also testified that regarding his non administrative work, he devotes one hour a week to making hospital rounds and holds mentoring sessions with faculty. Specifically, he testified that “[v]irtually everything I do in my day, in my week, in my month, how I plan, has a direct influence on patient care…Everything that happens related to patient care in our hospital is my direct responsibility.”

The Court concludes that Abdullah failed to show that Walls was engaged in the active clinical practice of medicine at the time of trial. He was an executive; he made sure the hospital was running properly. Walls testimony “indicates that he was not involved in supervising doctors who were treating patients but that his day-to-day contact was primarily with the hospital’s management personnel,” Fischer wrote.  Nor did the small amount of teaching Walls did tip the balance to meet the rule.

Case Holding

“We accordingly hold that a physician employed in an executive position who does not directly oversee physicians engaged in treating patients does not satisfy the active-clinical-practice requirement of Evid.R. 601,” wrote Fischer.  The trial court committed reversable error in allowing Dr. Walls to testify as an expert.

Abuse of Discretion Review

Abdullah had also asked the Court to apply the abuse-of-discretion standard in reviewing this case and to decide whether the trial court’s decision was arbitrary, unreasonable, or unconscionable. The Court held that the abuse of discretion standard is not a good fit in a case like this one, in which the trial court relied on an incorrect conception of the active-clinical-practice requirement of Evid.R. 601. The Court makes it clear that courts do not have the discretion to make errors of law, which is why courts use a de novo standard when reviewing issues of law.

“We take this opportunity to make it clear that courts lack the discretion to make errors of law, particularly when the trial court’s decision goes against the plain language of a statute or rule,” wrote Fischer. Here, the Court finds that the First District correctly held that a physician employed in an executive position who does not directly supervise physicians who treat patients fails to satisfy the active-clinical-practice requirement of Evid.R. 601. The trial court committed an error of law in finding otherwise, and that error was not harmless. The Court acknowledges Walls’ excellent credentials but refuses to make an exception to the competency requirement of the rule. “Being an executive far removed from treating patients does not qualify as engaging in the active clinical practice of medicine.” Fischer wrote.

Case Disposition

The case is reversed and remanded for a new trial.

Trial Court Judge (reversed)

Hamilton County Court of Common Pleas Judge Robert P. Ruehlman 

First District Court of Appeals Panel (affirmed)

Opinion by Judge Pierre Bergeron and joined by Judges Beth Myers and Candace Crouse

Concluding Observations

I used to practice in this field and have gotten stung by this rule. After argument, I predicted this looked like a win for the Johnson family, and wrote

“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.”

Here’s what former student contributor Maria Ruwe wrote:

“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.