Ohio SC: Experts don't lose status because defense stalled

John O'Brien Jul. 26, 2007, 1:42pm

COLUMBUS, Ohio - Medical experts who no longer spend more than half their time to active clinical practice may still testify as experts when the other side is guilty of stalling, the Ohio Supreme Court decided Wednesday.

A 4-3 decision gives trial courts the right to use their discretion in such instances, though Justice Robert Cupp disagreed because what he thinks is the pertinent rule of evidence to decide the case is written in the present tense.

"It appears uncontroverted that appellees' expert was competent to testify (1) when the alleged malpractice occurred, (2) when the trial was originally scheduled in 2002, and (3) when appellees' expert continued his practice on a reduced basis until the fall of 2003," Cupp wrote in his dissent.

"Presumably, appellees' expert would be competent to testify if the trial were held today. Evid.R. 601(D) supports these points of agreement; it also rendered appellees' expert incompetent to testify at the time of the actual trial."

Carol Celmer filed suit against several physicians in 2000, claiming they did not properly diagnose early evidence of her breast cancer. When she filed the suit, her attorneys identified Dr. Jay Thompson as an expert in the field of radiology to testify at the trial.

The trial was scheduled for March 2002 but was delayed by several continuances requested by the defendants and a 13-month stay imposed by the trial court when one of the defendants' medical malpractice insurer filed for bankruptcy.

The trial finally occurred more than two years after its original date, in May 2004. Thompson admitted during his testimony that he had not spent at least half his professional time in the active clinical practice of radiology since Oct. 2003.

Thompson moved to preclude his testimony on those grounds, though the trial court overruled the motion. When the trial concluded, a jury awarded Celmer $200,000. That led to the appeal, and the 11th District Court of Appeals affirmed the trial court's holding.

The Supreme Court made it unanimous when it handed down its ruling.

"(W)e reiterate that the purpose of Evid.R. 601(D) is to prohibit a physician who makes his living as a professional witness from testifying on the liability of physicians who devote their professional time to the treatment of patients," Justice Terrence O'Donnell wrote.
"In this case, the record supports the conclusion that Dr. Thompson satisfied the requirements of Evid.R. 601(D) at the time the cause of action accrued, at the time of filing suit, and during the first three years of this litigation.

"As the trial court noted, the Evid.R. 601(D) issue in this case would not have arisen had the court commenced trial as originally scheduled. On these facts, Thompson's hiatus from the practice of medicine should not render him incompetent to testify in this matter and does not cause him to become a 'professional witness.'"

O'Donnell was joined in the majority by justices Paul Pfeifer, Evelyn Lundberg Stratton and Judith Ann Lanzinger, who concurred in the syllabus and judgment only.

Chief Justice Thomas Moyer and Justice Maureen O'Connor dissented, along with Cupp.

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