2013 Ohio 2621
Ohio Ct. App.2013Background
- O’Malley sued Forum Health for medical malpractice after decedent’s 9/1/2006 ER visit, death from hemorrhagic shock following chest trauma.
- Dr. Flancbaum, a physician, testified as plaintiff’s liability expert via videotaped testimony alleging standard-of-care breach by Dr. Rashid.
- Defendants challenged Flancbaum’s competence under Evid.R. 601(D) for not devoting half his time to active clinical practice.
- The trial court admitted Flancbaum’s testimony; jury returned a verdict for plaintiff; post-trial motions denied; cross-appeal filed.
- Court held Evid.R. 601(D) flexible; trial court did not abuse its discretion; cross-appeal moot; judgment affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Flancbaum met Evid.R. 601(D)’s active practice requirement | O’Malley contends extensive trauma background and active practice at relevant time show competence | Rashid/Forum Health argue lack of half-time active practice renders Flancbaum incompetent | Yes; court found Flancbaum competent under flexible standard. |
| Whether denial of new trial was proper even if Flancbaum’s testimony was improper | Kiehl’s testimony supported liability independent of Flancbaum | Testimony improperly admitted; new trial warranted | No; substantial other evidence supported verdict. |
| Whether cross-appeal is moot and affects the final judgment | Cross-appeal challenges trial rulings | Appeal seeks reversal for new trial | Cross-appeal moot; judgment affirmed. |
Key Cases Cited
- McCrory v. State, 67 Ohio St.2d 99 (1981) (purpose of active clinical practice rule)
- Crosswhite v. Desai, 64 Ohio App.3d 170 (1989) (flexibility in Evid.R. 601(D) competency inquiry)
- Celmer v. Rodgers, 114 Ohio St.3d 221 (2007) (court allowed competency despite hiatus from practice under specific facts)
- Aldridge v. Garner, 159 Ohio App.3d 688 (2005) (experiential background can satisfy competency)
- Brannon v. Austinburg Rehab. v. Nursing Ctr., 190 Ohio App.3d 662 (2010) ( Evid.R. 601(D) does not apply to ordinary negligence)