COLUMBUS, Ohio (Legal Newsline) - A physician who took on the role of chief operating officer of a hospital is no longer qualified to testify as an expert in medical malpractice lawsuits, the Ohio Supreme Court ruled, even though he is directly in charge of patient safety and medical education at the institution.
The decision enforces a narrow definition of who is allowed to testify under Ohio’s rules of evidence for malpractice cases, which require experts to devote at least half their professional time “to the active clinical practice” of medicine. The Ohio Supreme Court upheld an appeals court’s ruling reversing a defense verdict and sending the case back for retrial.
Mark Johnson and two of his siblings sued Dr. Anthony Abdullah on behalf of their brother David, accusing him of malpractice in 2011. Abdullah hired Dr. Ron Walls, the COO of a hospital system, to testify on his behalf.
Over the objections of the plaintiffs, the trial judge allowed Walls to testify. The jury returned a verdict for Abdullah and the plaintiffs appealed, arguing that while Walls testified that virtually everything he did had “a direct influence on patient care,” he didn’t meet the definition of “active clinical practice” under Ohio Rule of Evidence 601.
The First District Court of Appeals reversed and remanded for a new trial, finding Walls unqualified to testify because his job was “almost entirely administrative.”. Abdullah appealed, but in a Sept. 22 decision written by Justice Patrick Fischer, the Ohio Supreme Court upheld the appeals court’s decision.
Abdullah argued the appeals court improperly questioned the trial judge’s finding that Walls met the standard and should have reviewed the decision under the more rigorous abuse-of-discretion standard. The Supreme Court disagreed, finding that the trial judge had made a clear error of law by disregarding the Rule 601 requirement that medical experts be engaged in “active clinical practice.”
The rule, and a prior statute, were designed to prevent “the basic unfairness of permitting the pointing of accusatory fingers by those who do not take care of the sick toward those who do,” the Supreme Court noted, as well as “to preclude testimony by the physician who earns his living or spends much of his time testifying against his fellows as a professional witness.”
The definition doesn’t require direct bedside contact with patients since many specialist physicians act as consultants, providing vital advice to practitioners, the high court said. And there are exceptions: In a 2007 decision, the Ohio Supreme Court allowed a doctor who was no longer qualified to testify, because he had been qualified when the trial was originally scheduled to begin, before a two-year delay.
In this case, Abdullah argued Walls was qualified when the malpractice allegedly occurred in 2011. But the Supreme Court refused to expand the exception.
“This result may not be ideal, given that Walls’s credentials would seem to make him well suited to testify in this case,” the court concluded. “If Ohio’s Rules of Evidence should allow doctors who work in positions such as Walls’s to testify as experts in cases like this, then the rule must be amended through the proper rule amendment process.”