A physician employed in an executive position who does not directly oversee physicians treating patients does not meet the requirements to testify as an expert witness in a medical malpractice lawsuit, the Ohio Supreme Court ruled today.

A Supreme Court majority upheld Ohio’s rule requiring that only physicians who spend more than 50 percent of their time in “active clinical practice” can testify as expert witnesses.

The decision overturns a ruling by the Hamilton County Common Pleas Court that found a doctor not negligent based on testimony that should not have been allowed.

The siblings of David Johnson filed a medical malpractice lawsuit against Dr. Anthony Abdullah and objected to allowing Dr. Ronald Walls to testify on behalf of Abdullah. Walls had been a practicing physician and instructor at Brigham and Women’s Hospital in Boston. But at the time of the 2017 trial, he was Brigham’s chief operating officer.

Writing for the Court, Justice Patrick F. Fischer stated that although Walls’ credentials made him well-suited to testify in this case, allowing an executive far removed from treating patients is contrary to the expert witness rule’s requirements. The ruling affirmed a First District Court of Appeals decision ordering a new trial.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, R. Patrick DeWine, Michael P. Donnelly, and Jennifer Brunner joined Justice Fischer’s opinion. Justice Melody J. Stewart concurred in judgment only.

Family Sues Doctor
Abdullah’s care of David Johnson took place in September 2011. In 2012, Johnson’s siblings sued Abdullah for medical malpractice in Hamilton County Common Pleas Court. Abdullah stated that Walls was identified as an expert witness in 2013.

The Johnsons voluntarily dismissed the lawsuit in 2014. In January 2015, Walls became the COO of the hospital system. The Johnsons refiled their case in April 2015, and the trial occurred in 2017. Walls was called by Abdullah to testify at the trial as an expert witness regarding the standard of care Abdullah provided.

The Johnsons sought to prevent Walls from testifying, arguing he did not meet the requirements of Rule 601 of the Ohio Rules of Evidence because he was not involved in the active clinical practice of medicine. The trial court determined Walls met the qualifications and allowed him to testify. The jury found Abdullah had not been negligent in treating David Johnson.

The Johnsons appealed to the First District, challenging several decisions by the trial court. The First District only addressed the claim regarding Wells’ testimony and reversed the trial court’s decision. The First District reasoned that if a physician acting as COO can be considered engaged in the active clinical practice of medicine, so too could nonphysician COOs, and that would be completely contrary to the purpose of Evid.R. 601. The court remanded the case to the trial court for a new trial.

Abdullah appealed the decision to the Supreme Court, which agreed to hear the case.

Supreme Court Reviewed Application of Expert Witness Rule
Evid.R. 601(B)(5) states that those who give expert testimony in a civil case involving a medical claim must “devote at least one half of his or her professional time to the active clinical practice in his or her field of licensure, or to its instruction in an accredited field.”

Justice Fischer explained that “active clinical practice” is not defined in state law or in the rule, but through Supreme Court cases it has been defined as work that is “related or adjunctive to patient care.” The definition is meant to prevent “hired gun” physicians -- who spend the majority of their time testifying against fellow physicians -- from serving as expert witnesses while allowing testimony from medical specialists directly involved in assisting with patient care, such as pathologists and radiologists.

Abdullah argued that at the time of the alleged malpractice, Walls devoted 75 percent of his time to active clinical practice or medical instruction. That should meet the rule’s requirement, he maintained.

The Court cited its 2007 Celmer v. Rodgers decision, in which a doctor was to serve as an expert witness for the plaintiff. However, the defendant requested a continuance, and the trial took place two years later. By the time the trial took place, the doctor no longer was engaged in active clinical practice, and the defendant sought to have the plaintiff’s expert barred from testifying.

Justice Fischer noted that in Celmer, the Court said the rule indicated the expert must be engaged in active clinical practice at the time of the trial, but because the defense delayed the trial, the trial court was permitted to use its discretion and allow the expert witness to testify.

The Court stated Abdullah was trying to take the exception one step further than Celmer. Not only was Abdullah asking the Court to consider Walls’ status at the time the trial was supposed to start, but to go back further in time to when the actual alleged medical error took place.

“If we extend the Celmer exception to permit the expert’s testimony in this case, we would in effect be rewriting the plain language of Evid.R. 601, which states that the witness must presently be engaged in the active clinical practice of medicine,” the opinion stated.

Expert’s Work Duties Examined
The Court stated it had to determine whether Walls’ work as the COO should be considered “adjunctive to patient care.” Walls stated that 90 percent of his work was “purely executive or administrative,” and he told the trial court all of his administrative work was directly related to patient care.

By making sure the hospital is adequately staffed and the staff has the proper technology to treat patients, he is “influencing the care every single day of thousands” of patients, Walls stated.

The Court stated that while Walls’ work did have an impact on the hospital’s mission to treat patients, he did not interact with physicians who were treating patients. The Court determined he was not engaged in the active practice of medicine or in a role considered adjunctive to patient care, as required by the rule.

The Court concluded that if the rule should allow doctors in executive positions to testify, “then the rule must be amended through the proper rule-amendment process.”

2020-0303. Johnson v. Abdullah, Slip Opinion No. 2021-Ohio-3304.

View oral argument video of this case.

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