MARK JOHNSON, Individuаlly, and as Guardian of David Johnson, an incompetent, GLENDA JOHNSON, and GARY JOHNSON, Plaintiffs-Appellants, vs. ANTHONY ABDULLAH, M.D., Defendant-Appellee.
APPEAL NO. C-180309
TRIAL NO. A-1501878
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
November 27, 2019
2019-Ohio-4861
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: November 27, 2019
Brannon & Associates, Dwight D. Brannon, Kevin A. Bowman and Matthew C. Schultz, for Plaintiffs-Appellants,
Arnold Todaro Welch & Foliano Co., LPA, Gregory B. Foliano and John B. Welch, for Defendant-Appellant.
O P I N I O N.
{¶1}
{¶2} We hold that an accomplished doctor should not have testified at trial because he did not engage in the “active clinical practice” of medicine as the rule commands. As chief operating officer (“COO“) of a hospital system, his job was almost entirely administrative, and while he insisted that everything he did impacted patient care in some fashion, that is a bridge too far fоr us to cross. By that logic, a nonphysician COO would also be engaged in the active clinical practice of medicine. We decline to equate administrative work far removed from patient care with “active clinical practice,” regardless of how noble the work or how qualified the doctor.
{¶3} Because the rule‘s plain language should have prevented this doctor from testifying, we reverse the judgment entered by the trial court and remand for a new trial.
I.
{¶4} In September of 2011, David Johnson underwent an invasive surgery, the procedure requiring his surgeon, Dr. Farooq Mirza, to remove a section of his diseased colon and then sew the еnds back together (i.e., anastomosis). Despite Mr. Johnson‘s deteriorating condition during his recovery, he was discharged from The Christ Hospital on
{¶5} In the aftermath of Mr. Johnson‘s tragedy, his brother and appointed guardian (and one of the named plaintiffs-appellants here1) commenced a medical malpractice claim against numerous defendants, including The Christ Hospital, Dr. Mirza, Dr. Daugherty (Mr. Johnson‘s primary care physician), and Dr. Abdullah. As to Dr. Mirza and Dr. Daugherty, Mr. Johnson specifically alleged the doctors were negligent during Mr. Johnson‘s first hospitalization, including prematurely discharging him when he suffered from an anastomotic leak (a common risk associatеd with his surgery). With respect to Dr. Abdullah, Mr. Johnson accused him of negligence in his care and treatment during Mr. Johnson‘s stay in the emergency department. Prior to trial, Dr. Mirza, Dr. Daugherty, and The Christ Hospital all settled with Mr. Johnson, leaving Dr. Abdullah the lone defendant during the three-week trial.
{¶6} At trial, Mr. Johnson‘s negligence claim against Dr. Abdullah focused on a narrow issue: whether the standard of care required Dr. Abdullah to recognize his deteriorating respiratory status and thus intubate him in the emergency department prior to his cardiac arrest. Predictably, this devolved into a battle of the experts. To support his
{¶7} To rebut this evidence, Dr. Abdullah provided his own expert testimony, the centerpiece of which involved Dr. Ron Walls, the COO of Brigham Health (a hospital system affiliated with Harvard) and a professor of emergency medicine at Harvard Medical School, regarding why the standard of care did not require intubation. Dr. Walls emphasized the dangers of intubation and indications of when to do it—none of which, he believed, manifested themselves in this case. Coupled with his opinion, the jury also heard a litany of Dr. Walls‘s impressive accomplishments and experiences, including performing over 1,000 intubations himself, creating a course on intubations and airway management and training between 8,000 and 10,000 physicians through this course, collecting numerous honors from emergency medicine societies, authoring myriad peer reviewed publications and chapters in textbooks on intubation, and currently editing the most reсent edition of Rosen‘s Emergency Medicine, Concepts and Clinical Practice (himself authoring the chapter on airway management)—to name just a few. Although Dr. Walls‘s renowned credentials would seem to make him an ideal witness on this point, Mr. Johnson objected to his testimony, maintaining that Dr. Walls failed to satisfy the requirements of
{¶9} Mr. Johnson now appeals, asserting six assignments of error. He challenges the trial court‘s decision to admit expert testimony, the weight of the evidence of the verdict in favor of Dr. Abdullah, the jury instructions provided, the trial court‘s failure to exclude testimony concerning the settling defendants, defense counsel‘s misuse of the learned treatise exception to hearsay, and the trial court‘s decision to allow Dr. Abdullah to present his case against the settling nonparties without requiring the jury to apportion fault.
II.
{¶10} In Mr. Johnson‘s first assignment of error, he raises twо separate issues regarding expert testimony offered at trial. We turn first to his assertion that the trial court erred in admitting Dr. Walls‘s expert testimony at trial because, at the time of trial, Dr. Walls did not devote at least one-half of his professional time to the active clinical practice of medicine, rendering him incompetent to testify under
A.
{¶11} When providing expert testimony regarding liability in a medical malpractice action,
(1) The person testifying is licensed to practice medicine and surgery * * * by the state medical board or by the licensing authority of any state; (2) [t]he
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 and (3) [t]he person practices in the same or a substantially similar specialty as the defendant.
Because the only issue as to Dr. Walls‘s competency concerns whether he devoted at least one-half of his professional time to the active clinical practice of medicinе, we concentrate our analysis on this aspect of the rule, attempting to crystalize the standard for “active clinical practice” along the way.
{¶12} Notably,
{¶13} With this purpose in mind, the court in McCrory interpreted “active clinical practice” to include not only the physician who directly treats patients, but also a physician whose work is “so related or adjunctive to patient care as to be necessarily included in” the active clinical practice definition. McCrory at 104. Wary about excluding from the rule‘s reach medical experts who “work daily in and for our hospitals often assisting, directing, or advising the attending physician in his care of the sick,” the Supremе Court invited more flexibility. Id. at 103. The rule must therefore encompass physicians whose “ministrations
{¶14} Building on McCrory, Ohio courts have recognized that “active clinical practice” at its essence requires courts to evaluate “how closely the purported expert‘s work is related to patient care.” Aldridge v. Garner, 159 Ohio App.3d 688, 2005-Ohio-829, 825 N.E.2d 201, ¶ 12 (4th Dist), quoting Nicholson v. Landis, 4th Dist. Athens No. 1404, 1990 WL 34276, *9 (Feb. 27, 1990). In doing so, courts must find, at the very least, the expert‘s professional work be “the type that forms an essential link in the chain of services and activities which comprise the comprehensive treatment of patients.” Goldstein v. Kean, 10 Ohio App.3d 255, 257, 461 N.E.2d 1350 (10th Dist.1983). In other words, the expert‘s work cannot simply encompass patient сare from an abstract level but must include activities, so entwined with patient care, that the physician is essentially involved or engaged in treating patients him or herself (even if not standing by the patient‘s bedside). Courts appropriately insist that an expert‘s work entail more than a mere relation to the healthcare industry (because virtually every doctor could check that box). See Goldstein at 257 (finding that a physician who spends 75 percent of his professional time evaluating workers’ compensation claims but who does not personally examine, treat, or diagnose patients failed to meet the active clinical practice requirement); Aldridge at ¶ 15 (devoting 80 percent of his
{¶15} Divining where on this continuum a particular doctor‘s practice sits necessarily constitutes a fact-specific inquiry, which has yielded some inconsistent results in the caselaw. For instance, while performing medical research or working in an administrative position generally, on its own, may not closely relate to patient care, if interrelated with other activities—consulting with or evaluating patients, reviewing patient records, or supervising other physicians—then the expert‘s work may suffice to satisfy active clinical practice. See Witzmann v. Adam, 2d Dist. Montgomery No. 23352, 2011-Ohio-379, ¶ 26 (finding because his administrative role as Executive Medical Director for Johns Hopkins International included seeing patients, performing weekly surgeries, and publishing numerous medical articles, his activities met the active clinical practice requirement); Siuda v. Howard, 1st Dist. Hamilton Nos. C-000656 and C-000687, 2002 WL 946188, *9 (May 10, 2002) (holding that because the expert‘s position, as the medical director for the Cincinnati Eye Institute, included consulting with patients, reviewing patient rеcords, and researching and publishing pieces relating to ophthalmology he satisfied “active clinical practice“); Williams v. Reynolds Road Surgical Ctr., LTD, 6th Dist. Lucas No. L-02-1144, 2004 WL 628972, *5 (Mar. 31, 2004) (“[C]onsulting activities deal directly with patient care and satisfy ‘the active clinical practice’ definition as set forth in McCrory.“); but see Hunt v. Crossroads Psych. & Psychological Ctr., 8th Dist. Cuyahoga No. 79120, 2001 WL 1558574, *6-7 (Dec. 6, 2001) (“[Expert] does not meet the fifty percent rule for the active practice or teaching of medicine since the majority of his time is spent as
{¶16} Other states with similar statutes or rules have likewise struggled to define “active clinical practice,” and the results help shed some light on the term, but they also do not proceed in a straight path. See Moore v. Proper, 366 N.C. 25, 33, 726 S.E.2d 812 (2012) (“[C]linical means ‘actual experience in the observation and treatment of patients‘—not activities simply relating to the health profession, such as administration оr continuing education.“) (Emphasis sic.); Id. at 40 (Newby, J., concurring in part and concurring in the result) (“[A]n individual who observes or diagnoses patients but who does not regularly perform the various treatments done by other members of that health profession likely would not qualify as an expert under this rule.“); Hinkley v. Koehler, 269 Va. 82, 90, 606 S.E.2d 803 (2005) (finding doctor not engaged in “active clinical practice” when he “did not evaluate, manage, or treat problems in pregnancies in the context of direct patient care[.]“); Gay v. Select Specialty Hosp., 295 Mich.App. 284, 813 N.W.2d 354 (2012), fn.2 (“[A] nurse who supervises other nurses in a hospital is practicing nursing in a clinical setting even though he or she does not directly treat specific patients.“); Id. at 306 (Whitebeck, J., dissenting) (“[W]orking in a clinical setting merely overseeing employees who actually treat the patients is too removed from the type of experience contemplated by the statutory requirement.“).
B.
{¶18} The problem in this case is thаt Dr. Walls is not a “hired gun” professional witness—he occasionally does testify as an expert, but this represents a small fraction of his practice. He is also, as we have noted above, eminently qualified in his field. If we thus confined our view to the purpose of
{¶20} However, as touched on above, administrative work may satisfy the active clinical practice requirement when coupled with activities closely intertwined with patient care—engaging in patient visits, supervising other physicians’ treatment, or reviewing patient records. See Witzmann, 2d Dist. Montgomery No. 23352, 2011-Ohio-379, at ¶ 26 (finding the medical expert who, as the Executive Medical Director for Johns Hopkins International, routinely saw patients and performed weekly surgeries satisfied active clinical practice); Siuda, 1st Dist. Hamilton Nos. C-000656 and C-000687, 2002 WL 946188, at *9 (finding the expert satisfied the active clinical practiсe requirement as medical director for the Cincinnati Eye Institute because his professional activities included consulting with patients, reviewing patient records, and researching and publishing pieces relating to ophthalmology); Williams, 6th Dist. Lucas No. L-02-1144, 2004 WL 628972, at *5 (holding that despite devoting much of his time to developing programs, the medical expert fulfilled the active clinical practice requirement because he consulted with other doctors and supervised operations). In other words, saying that one is engaged in “administrative” work
{¶21} In this case, holding the same position at the time of his deposition as he did at trial, Dr. Walls admitted during his deposition that, as the COO of Brigham Health, he no longer sees patients and “probably 90 percent of [his] work would be characterized as purely executive or administrative.” Needless to say, that answer seems to be all but fatal in terms of qualifying him under
{¶22} While we have no doubt that Dr. Walls‘s work as a COO has an impact on all facets of patient care at Brigham Health, based on the work activities that he described, we cannot help but view his COO duties as too attenuated from patient care to satisfy
{¶23} In fact, much of Dr. Walls‘s activities strike us as quintessentially administrative (i.e., nonclinical). Similar to the medical expert‘s duties the Eighth District deemed administrative in Hunt, Dr. Walls‘s responsibilities involve developing education programs for residents and students and engaging with faculty through mentorship and oversight of departments. Hunt, 8th Dist. Cuyahoga No. 79120, 2001 WL 1558574, at *6-7. And while Dr. Walls serves as a professor of Emergency Medicine at Harvard Medical School, like the medical expert in Nicholson, he only spends a de minimis amount of time actually teaching (about six hours a year) and no longer makes rounds with residents (only making rounds once a week for about an hour with clinical nurses). Nicholson, 4th Dist. Athens No. 1404, 1990 WL 34276, at *9. Moreover, unlike the medical experts in Witzmann, Siuda, and Williams, Dr. Walls‘s position as COO of Brigham does not include time consulting with patients, reviewing patient records, supervising other physicians’ direct treatment, or treating patients himself. See Witzmann, 2d Dist. Montgomery No. 23352, 2011-Ohio-379, at ¶ 26; Siuda, 1st Dist. Hamilton Nos. C-000656 and C-000687, 2002 WL 946188, at *9; Williams, 6th Dist. Lucas No. L-02-1144, 2004 WL 628972, at *5. Stated differently, Dr. Walls‘s testimony fails to illuminate any activities closely related to patient care (i.e., observing patients, performing rounds with residents, reviewing patient
{¶24} Accordingly, while we are mindful that “active clinical practice” does not require direct treatment of patients, based on the analysis above, we cannot say that Dr. Walls‘s work is so “adjunctive to patient care” as to fall within the definition of active clinical practice. We understand the frustration that the defense must surely feel at the exclusion of a witness who, on paper, seems ideally situated to testify in this case. But no manner of “broad” construction of “active clinical practice” can justify allowing Dr. Walls‘s testimony lest we write that clause out of the rule. Unwilling to do that, we conclude that Dr. Walls was not competent to testify under
C.
{¶25} Perhaps anticipating this result, as a fallback, Dr. Abdullah urges us not to evaluate Dr. Walls‘s competency at the time of trial, but instead at the time the cause of action acсrued, pointing to Celmer and other Ohio caselaw for support. In Celmer, after reiterating the purposes behind
{¶26} In applying this limited exception, the court held that, despite the plaintiff‘s medical expert no longer devoting at least one-half of his professional time to active clinical practice at the time of trial, he could testify because he met the requirements of
{¶27} We recognize that some Ohio appellate courts choose to read Celmer and
{¶28} Because Dr. Abdullah fails to present any such justification here, we decline to extend Celmer‘s limited exception to his case. And even if we were inclined to go down that path, we are not convinced Dr. Walls satisfied
{¶29} In light of our analysis above, the trial court did not properly apply the “active clinical practice” standard and abused its discretion in allowing Dr. Walls‘s testimony on this record.
D.
{¶30} With error established, we must next ask whether we can dismiss the improper evidentiary ruling here as harmless. See
{¶32} Therefore, we cannot dismiss the error as harmless, and we accordingly sustain Mr. Johnson‘s first assignment of error as described above.
III.
{¶33} For all of the foregoing reasons, we sustain Mr. Johnson‘s first assignment of error only insofar as it relates to the trial court‘s decision to admit Dr. Walls‘s expert
Judgment reversed and cause remanded.
MYERS, P. J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry this date.