Celmer v. RodgersCelmer v. Rodgers
Lead Opinion
{¶ 1} Dr. Edward Walker, Dr. Han Soo Shin, and Radiology Associates of Warren, Inc., appeal from a decision of the Trumbull County Court of Appeals, which affirmed a trial court order denying their oral motion to exclude Dr. Jay Thompson from offering expert testimony on behalf of Carol and Michael Celmer in this medical malpractice action.
{¶ 2} The issue presented on appeal concerns the application of
{¶ 3} The record before us reveals that in 1997 and 1998, Carol Celmer complained to her family physician, Dr. Sharon George, about a lump in her right breast. Dr. George referred her for diagnostic testing, and as a result, Dr. Edward Walker read a December 1998 mammogram and diagnosed the lump in her breast as a benign cyst. Dr. Han Soo Shin also reviewed the same mammogram and a sonogram and determined that neither showed anything suspicious. Based on these opinions and her own interpretation of these tests, George advised Celmer that she did not have cancer.
{¶ 4} Thereafter, in December 1999, Celmer obtained a new mammogram, revealing a mass in her right breast, which a biopsy showed to be a malignant tumor. As a result, she underwent chemotherapy and surgery for its removal, though the cancer eventually spread to other organs.
{¶ 5} Following her surgery, the Celmers’ legal counsel contacted Dr. Jay Thompson, who became her expert witness in this case. After reviewing her X-ray films, Thompson concluded that the cancer in her breast could have been discerned in the 1997 and 1998 mammograms and opined that the failure to identify the cancer constituted a deviation from the standard of care.
{¶ 7} At a pretrial conference held on March 20, 2001, the trial court scheduled the case for trial on March 11, 2002. However, in June 2001, the court continued the trial to June 17, 2002, at the request of Drs. Walker and Shin and Radiology Associates. Subsequently, on October 29, 2001, the court granted Dr. George’s motion to stay all proceedings as a result of an insolvency proceeding in the state of New York involving her insurance carrier. The stay remained in effect until January 2003, when the court granted the Celmers’ motion and rescheduled trial for February 23, 2004. However, on April 14, 2003, at the request of Dr. George and over the Celmers’ objection, the trial court continued the February 23 trial date to May 18, 2004.
{¶ 8} The court began trial in May 2004 against Drs. Walker and Shin and Radiology Associates. On the second day of trial, the court permitted defense counsel to voir dire Dr. Thompson regarding his competency to testify as an expert witness on behalf of the Celmers. During voir dire, Thompson acknowledged that he held a license to practice medicine in Ohio and that between February 1997 and October 2003, he had spent at least one-half of his professional time in the active clinical practice of radiology but admitted that as of November 2003, he had resided in the state of Florida and had not engaged in the practice of medicine. He further testified that four days before commencement of trial, he had accepted a new position with a radiology practice group in Ohio, where he would receive training to interpret computer radiology results.
{¶ 9} Following Thompson’s voir dire, defense counsel moved to preclude his expert testimony, arguing that he no longer qualified as a medical expert witness pursuant to
{¶ 10} Pursuant to the court’s ruling, Thompson testified at trial that Walker and Shin deviated from the standard of care when they failed to diagnose Celmer with cancer based upon the mammograms and the sonograms. Following deliberations, the jury returned verdicts in favor of the Celmers of $85,000 against Dr. Walker and Radiology Associates and $115,000 against Dr. Shin and Radiology Associates.
{¶ 12} We granted discretionary review to examine the issue of whether, in conformity with
{¶ 13}
{¶ 14} “Every person is competent to be a witness except:
(¶ 15} “ * * *
{¶ 16} “(D) A person giving expert testimony on the issue of liability in any claim asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care, or treatment of any person by a physician or podiatrist, unless the person testifying is licensed to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery by the state medical board or by the licensing authority of any state, and unless the person devotes 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 school.”
{¶ 17} This rule incorporates much of
{¶ 18} Thus,
{¶ 19} A trial court has discretion to determine whether a witness is competent to testify as an expert, and the trial court’s decision will not be reversed absent a clear showing that the court abused its discretion. McCrory v. State (1981),
{¶ 20} In McCrory,
{¶ 21} On review in this court, we rejected the narrow interpretation of the term “active clinical practice,” explaining that “the purpose of the [requirement] is to preclude testimony by the physician who earns his living or spends much of his time testifying against his fellows as a professional witness, and to prevent those whose lack of experiential background in the very field they seek to judge, the clinical practitioner, makes the validity of their opinions suspect, from expressing those opinions for pay or otherwise.” Id. Based upon the purpose of the requirement, we concluded there that the trial court did not abuse its discretion, as “the phrase ‘active clinical practice’ includes more than those physicians who regularly treat patients directly * * Id. at 104, 21 OO.3d 63,
{¶ 22} Similarly, Chief Justice Moyer, then sitting as a member of the Tenth District Court of Appeals, identified the intent of
{¶ 23} Based on the foregoing, we reiterate that the purpose of
{¶ 24} In addition,
{¶ 25}
{¶ 26} In this case, the record supports the conclusion that Dr. Thompson satisfied the requirements of
{¶ 27} Generally, an expert witness in a medical malpractice action must meet the requirements of
{¶ 28} For the foregoing reasons, we affirm the judgment of the court of appeals.
Judgment affirmed.
Dissenting Opinion
dissenting.
{¶ 32} Because I believe that a plain reading of
{¶ 33} 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. Presumably, appellees’ expert would be competent to testify if the trial were held today.
{¶ 35} This conclusion, however, is not meant to countenance the use of
{¶ 36} The rule amendment process, however, is a more appropriate mechanism to address the policy concerns raised by appellees and to weigh the advisability of various options and alternatives. It may well be that the current requirements of
{¶ 37} In the present case, however, because the duty of the trial court is to apply the plain meaning of the rule as it exists, the ruling contrary to such
Notes
. The issue of whether a deposition taken of an expert witness, competent under
Dissenting Opinion
dissenting.
{¶ 29} Because I believe that this case presents a unique scenario that does not provide the court with a sufficiently meaningful opportunity to explore the important legal and policy questions it implicates, I believe that the appeal should be dismissed as having been improvidently accepted.
{¶ 30} I would further hold that the court of appeals’ holding should be limited to this case and should not be cited as authority in ensuing cases, except by the parties inter se.
{¶ 31} I therefore dissent from the majority’s decision to affirm.