ANN M. O’MALLEY, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE HEIRS AND ESTATE OF WILLIAM JAMES O’MALLEY, DECEASED, Plaintiff-Appellee/Cross-Appellant, - vs - FORUM HEALTH, d.b.a. FORUM HEALTH TRUMBULL MEMORIAL HOSPITAL, et al., Defendants-Appellants/Cross-Appellees.
CASE NO. 2012-T-0090
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
May 28, 2013
2013-Ohio-2621
Civil Appeal from the Trumbull County Court of Common Pleas. Case No. 2007 CV 2205. Judgment: Affirmed.
Thomas J. Wilson, Comstock, Springer & Wilson Co., L.P.A., 100 Federal Plaza East, Suite 926, Youngstown, OH 44503-1811 (For Defendants-Appellants/Cross-Appellees).
O P I N I O N
TIMOTHY P. CANNON, P.J.
{¶1} Appellants/Cross-Appellees Mohammed Rashid, M.D., and Forum Health, d.b.a. Forum Health Trumbull Memorial Hospital, appeal the Trumbull County Court of Common Pleas’ judgment after a jury verdict in favor of Appellee/Cross-Appellant Ann
{¶2} Courts throughout Ohio, including this one, have read the “active clinical practice” requirement of
{¶3} On August 29, 2007, Ms. O’Malley filed this medical malpractice action seeking damages for, inter alia, negligence and wrongful death. The allegations
{¶4} Following extensive discovery, including numerous motions in limine, the matter proceeded to trial. During trial, Ms. O’Malley presented, over objection, the videotaped testimony of Dr. Flancbaum as an expert witness. Dr. Flancbaum’s testimony indicated that Dr. Rashid, a Trumbull Memorial emergency room physician who treated Mr. O’Malley, deviated from the applicable standard of care and that Mr. O’Malley’s death was, in fact, preventable. Dr. Flancbaum opined that Dr. Rashid failed to recognize the severity of Mr. O’Malley’s injuries based on lab test results that were available at the time Dr. Rashid first appeared at Mr. O’Malley’s bedside; i.e., that the patient was hemorrhaging blood and was technically in hemorrhagic shock upon arrival. Dr. Flancbaum additionally explained that Dr. Rashid failed to address Mr. O’Malley’s injuries with proper and timely treatment. Appellants cross-examined Dr. Flancbaum and attacked the credibility of his opinion.
{¶6} The jury returned its verdict in favor of Ms. O’Malley and against Dr. Rashid and Forum Health in the amount of $556,779.15. The trial court entered judgment for Ms. O’Malley on April 27, 2012.
{¶7} Shortly thereafter, numerous post-verdict motions were filed. Appellants filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied. Ms. O’Malley filed a motion for prejudgment interest which, via October 18, 2012 judgment entry, was dismissed without prejudice.
{¶8} On November 6, 2012, appellants filed their notice of appeal, seeking to challenge the trial court’s judgment on the verdict and judgment denying a new trial. We note this appeal is timely, as “[a] journalized jury verdict is not a final, appealable order when a motion for prejudgment interest has been filed and remains pending.” Miller v. First Internatl. Fid. & Trust Bldg., 113 Ohio St.3d 474, 2007-Ohio-2457, syllabus.
{¶9} Appellants assert a single assignment of error for consideration by this court, which states:
{¶10} “The trial court committed prejudicial error in allowing the testimony of plaintiff’s expert, Dr. Louis Flancbaum, over Dr. Rashid’s objection.”
{¶11} Under their sole assignment of error, appellants raise two issues. They first contend the trial court abused its discretion in allowing Dr. Flancbaum to testify as an expert when he did not devote any of his time to the active clinical practice of
{¶12} In response, Ms. O’Malley argues the evidentiary ruling was not an abuse of discretion, highlighting Dr. Flancbaum’s extensive experiential background, his special experience, his one-half professional time devotion to active clinical practice at the time the action accrued, and the general principle, best stated by Wigmore, that “[t]he retirement from active practice involves no disqualification.” 7 Wigmore, Evidence, Section 687, at 3, fn.1 (Chadbourn Rev.1978).
{¶13} Evidentiary rulings, including whether a witness is competent to testify as an expert, are entrusted to the sound discretion of the trial court. Alexander v. Mt. Carmel Medical Center, 56 Ohio St.2d 155, 157 (1978). As such, the standard of review is whether the trial court abused its discretion in its ruling. Id. An abuse of discretion is defined as the “failure to exercise sound, reasonable, and legal decision-making.” Black’s Law Dictionary 11 (8th Ed.2004).
{¶14}
{¶15}
{¶16} Every person is competent to be a witness except:
{¶17} * * *
{¶18} (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. * * *
{¶19} Thus, in order to be competent to testify, an expert in a medical malpractice case must be licensed in one of the above-specified fields and must devote at least one-half of his time to the active clinical practice of medicine in his specific field, or its instruction in an accredited school. “Active clinical practice,” however, is not defined.
{¶20} In this case, there is no dispute that the matter is a civil medical malpractice action against a physician and hospital. See Brannon v. Austinburg Rehab. v. Nursing Ctr., 190 Ohio App.3d 662, 2010-Ohio-5396 (11th Dist.) (
{¶21} The question, therefore, is whether a trial court may find a witness competent to offer expert testimony on the issue of a physician’s liability in a medical malpractice case when that witness, at the time of the testimony, does not devote one-half of his professional time to the active clinical practice of medicine.
{¶22} The purpose of
{¶23} In consideration of the purpose and spirit of
{¶24} First, “active clinical practice” does not solely apply to the administration of care by an active clinic practitioner. In McCrory v. State, supra, a person who did medical research and supervised a staff of research doctors was competent under
{¶25} Second, a witness who does not devote at least one-half of his professional time to active clinical practice at the time of trial can nonetheless still be found competent to testify, provided there are specific facts that establish the witness’ competency. The Second Appellate District in Crosswhite, supra, warned against the dangers of interpreting the applicable rule and statute, which are written in the present tense, too strictly or too literally:
{¶26} A literal and strict interpretation of the statute focusing only on the present ignores the historical nature of the inquiry and the true purpose of the statute. It might even permit the testimony of a novice currently in practice yet exclude the testimony of an experienced clinical practitioner who is not. It would not serve the purposes of the statute or the ends of justice to exclude the assistance of the experienced specialist whose clinical practice spanned decades, because he is now retired. The true purpose of the statute is to ensure competency, and a strict application of the text in its literal sense fails to do that. Id. at 178.
{¶27} Rather, the court explained the essential inquiry is whether the witness acquired that “special knowledge” or “experiential background” in the field he seeks to judge. Id. In Crosswhite, the trial court excluded a retired physician’s testimony under
{¶28} In Celmer v. Rodgers, 11th Dist. No. 2004-T-0074, 2005-Ohio-7054, ¶24, this court applied and followed Crosswhite, holding that
{¶29}
Evid.R. 601(D) uses the present tense in providing that a person is unable to offer medical expert testimony unless that person is licensed to practice medicine and devotes at least one-half of his or her professional time to active clinical practice. This, however, does not preclude a trial court from exercising discretion in an appropriate case to determine that a physician is competent to testify[.]
{¶30} The Supreme Court concluded: “Given the specific facts of this case and Dr. Thompson’s competency to testify as an expert at the originally scheduled March 2002 trial, his disengagement from the active clinical practice of medicine prior to the May 2004 trial date did not render him incompetent to testify.” Id. at ¶27. Stated differently, “[o]n these facts, Thompson’s hiatus from the practice of medicine should not render him incompetent to testify in this matter and does not cause him to become a ‘professional witness.’” Id. at ¶26. The Court characterized the existence of “specific facts” as an exception to the strict language of
{¶31} Additionally, in Aldridge v. Garner, 159 Ohio App.3d 688, 2005-Ohio-829, ¶18 (4th Dist.), though a physician did not devote one-half of his time to active clinical practice at the time his testimony was offered, the Fourth Appellate District found his experiential background rendered him competent to testify under
{¶32} Similarly here, given the specific facts of this case, it cannot be concluded the trial court abused its discretion in finding Dr. Flancbaum competent to testify.
{¶33} First, there is the matter of Dr. Flancbaum’s extensive experiential background, including his special experience in trauma care. The record established that Dr. Flancbaum has practiced medicine for over 30 years, much of which was devoted to trauma care: he spent a five-year surgical residency at University of Illinois Hospitals, a component of which focused in trauma services, and completed a one-year fellowship in trauma surgery and critical care at the Maryland Institute for Emergency Medical Service Systems. He held a five-year tenure at Robert Wood Johnson Medical as a trauma attending and critical care attending surgeon, during which time he was actively involved in the establishment of a level-one trauma center. Later in his career, Dr. Flancbaum was the chief of the trauma critical care section at the Ohio State University Hospital, a level one trauma center, and site director at St. Luke’s Hospital, also a level one trauma center, where he was active in trauma service through 2004. Dr. Flancbaum also authored roughly 25 to 30 papers—25% of his entire publications—in the field of trauma care, and was an active faculty member for the American College of Surgeon’s advanced trauma life support course.
{¶34} Next, Dr. Flancbaum still devoted one-half of his professional time to the active clinical practice at the time the cause of action accrued. Specifically, during the time of Mr. O’Malley’s emergency room visit, as well as at the end of 2006, Dr. Flancbaum was still continuing to provide critical care services. Dr. Flancbaum testified
{¶35} Finally, though not administering care at the time of his testimony, the record illustrates that Dr. Flancbaum continues to follow medical literature, continues to attend medical conferences on a semi-regular basis, and maintains an active medical license in the state of New York.
{¶36} Thus, based upon the specific facts of this case, including Dr. Flancbaum’s length of practice, extensive experiential background, special experience in trauma care, continuing education, and the fact he was engaged in active clinical practice at the time the cause of action accrued, we conclude the trial court did not abuse its discretion in allowing Dr. Flancbaum to testify. This holding is in accordance with the purpose and function of
{¶37} As a result, appellants’ second issue is also without merit. Even without Dr. Flancbaum’s testimony, the evidence is still sufficient to support a verdict against appellants to withstand a motion for a new trial pursuant to
{¶38} Dr. Kiehl opined that the standard of care was breached in many ways. First, Dr. Rashid failed to recognize that the patient’s condition required the highest level of trauma, rather than a second-level trauma response. Dr. Kiehl explained, just as Dr. Flancbaum, that there was an inappropriate response to Mr. O’Malley’s abnormal lab
{¶39} Dr. Kiehl opined, just as Dr. Flancbaum did, that the response to these results should have been immediate resuscitation and intervention; i.e., the patient needed crystalloid fluid, blood as quickly as possible, and a chest tube to drain existing blood and inflate the lungs. Dr. Kiehl also noted a Foley catheter to monitor urine output, which would correlate to indications of blood volumes, should have been administered, though Dr. Flancbaum did not mention such a specific catheter treatment.
{¶40} Dr. Kiehl went into much detail concerning the specific failure to place a chest tube for therapy and monitoring purposes, as did Dr. Flancbaum. Dr. Kiehl explained the chest tube is a relatively simple procedure where a tube is placed into the
{¶41} Dr. Kiehl noted that, in this case, a chest tube was “appropriate and indicated” by the lab tests that came back around 7:00 p.m. He also noted that a bolus of fluids should have been introduced at the time of the first low blood pressure reading, at around 6:30 p.m. Though appellants claim otherwise, Dr. Flancbaum was, in fact, less specific with the timing aspect of a chest tube placement, merely noting that the later the bleeding is noticed, the more compromise there is to the organs in the body and the less chance of a successful outcome.
{¶42} Dr. Kiehl similarly set forth the apparent danger in delaying these responses to the diagnostic information: the longer a patient remains in shock due to blood hemorrhaging, the more likely they will die. Fluid resuscitation must be initiated when early signs and symptoms of blood loss are apparent or suspect, not when the blood pressure is falling or absent—this is basic trauma management according to Dr. Kiehl’s testimony.
{¶43} Thus, though there were minor permutations between their testimony, both experts testified to the same material points: (1) the failure to recognize the severity of the trauma and designate the proper trauma response; (2) the inappropriate response to the numerous tests and studies, including the CT scan illustrating a
{¶44} We therefore cannot conclude the trial court abused its discretion in denying the motion for a new trial, even if Dr. Flancbaum’s testimony was entered in error, because Dr. Kiehl essentially testified to the same material points.
{¶45} Appellants’ sole assignment of error is without merit.
{¶46} Appellee/Cross-Appellant Ms. O’Malley asserts one assignment of error, which states: “The trial court committed prejudicial error in allowing the testimony of appellant’s expert, Dr. James Neuenschwander, over appellee’s objection.”
{¶47} Given the above-framed analysis, the cross-appeal is moot.
{¶48} The judgment of the Trumbull County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
COLLEEN MARY O’TOOLE, J.,
concur.