Recently, the Ohio Supreme Court issued a ruling that clarifies the definition of “active clinical practice.” The case in point wasJohnson v. Abdullah, Slip Opinion No. 2021-Ohio-3304. The Ohio Supreme Court determined what constitutes “active clinical practice” in the context of the Ohio Rules of Evidence. The court held that a physician employed in an executive position who does not directly oversee physicians who treat patients does not fall under this definition. This more concrete definition may heighten the requirements of medical expert qualifications. However, it also provides some much-needed guidance on an ambiguous term and legal standard.
What is “Active Clinical Practice”?
Pursuant to Rule 601(B)(5) of the Ohio Rules of Evidence, the court deems an expert witness testifying in any medical claim competent to testify only if they meet certain conditions. The requirements include the expert having a license to practice medicine. Another condition was that the expert practiced in the same or similar specialty as the defendant. Rule 601(B)(5)(b) specifically provides that the expert 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 school…”
“Active clinical practice” is a significant factor in determining witness admissibility. Yet, Rule 601 or any other Ohio state law doesn’t define the term. Rather, prior case precedent has helped shape its interpretation.
McCrory v. State
InMcCrory v. State, 67 Ohio St.2d 99 (1981), a case cited in the Johnson v. Abdullah decision, the court held that active clinical practice includes “work [that] is so related or adjunctive to patient care as to be necessarily included in that definition for the purpose of determining fault or liability in a medical claim.” As stated in McCrory, and reiterated inJohnson, the purpose of Rule 601(B)(5)(b) 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.”
However, theMcCrory court cautioned against a defining active clinical practice so narrowly so that it only includes physicians “in direct contact with the patient at his bedside,” which “would exclude the large panoply of medical expertise of various physician-specialists who work daily in and for our hospitals often assisting, directing, or advising the attending physician in his case of the sick.” Therefore,McCrory’s definition of active clinical practice included the work of physicians “directly involved in the care of the patient.”
Exceptions to the Active Clinical Practice Requirement
Over two decades after McCrory, the Ohio Supreme Court revisited the issue of the active clinical practice requirement. In Celmer v. Rodgers, the court held that an expert must satisfy Rule 601’s requirements at the time of trial. Furthermore, the court noted the present tense language of the rule. However,Celmer held that there are exceptions to this rule. The trial court is not precluded from exercising its discretion in admitting expert testimony. The court could exercise its discretion in cases where the expert witness would have qualified at the time the trial was scheduled to take place but was ultimately postponed due to the defendant’s insurance carrier’s insolvency.
Johnson v. Abdullah
InJohnson v. Abdullah, the plaintiff alleged the defendant physician was negligent in treating the plaintiff back in 2011. During the trial, the defendant retained an expert to opine on the standard of care. Johnson moved to exclude the expert’s testimony. The plaintiff claimed the expert failed to satisfy the active clinical practice requirements. The expert was previously a practicing physician. At the time of the 2017 trial, the expert was the chief operating officer of a hospital system. The trial court deemed the expert competent to testify and a jury found in favor of Dr. Abdullah. The First District Court of Appeals reversed and remanded for a new trial. The court noted that the expert’s job was “almost entirely administrative” and didn’t constitute the active clinical practice of medicine. Thus, the court of appeals believed the trial court should have precluded the expert’s testimony.
Ohio Supreme Court Decision on Active Clinical Practice Requirement
Before the Ohio Supreme Court were two issues. One concern was what constitutes the active clinical practice requirement. The other was when an expert must meet such requirement. The court declined to expand the narrow exception carved out in Celmer. Furthermore, the court held that the general rule is that a potential expert must meet the requirement at the time the expert testifies at trial. Previously, the rule was that the expert must meet the requirement at the time of the alleged malpractice.
Therefore, the question as to whether the expert engaged in active clinical practice was limited to the time of the 2017 trial. By the expert’s own admission, probably 90% of his “work would be characterized as purely executive or administrative.” Additionally, the expert testified that he is responsible for teaching and training programs, issues related to the quality and safety of patient care, and clinical operations. The court declined Walls’ assertion that his work “has a direct influence on patient care.” The court noted that he does not directly supervise any of the treating physicians. The expert’s day-to-day contact is primarily with hospital management personnel. Overall, the court concluded that the expert was not working in the active practice of medicine or in a role adjunctive to patient care. The expert was not interacting with the physicians who were treating patients.
What Does This Mean for Attorneys?
When choosing a medical expert for a case in Ohio, attorneys should be mindful of the requirements set forth in the Johnson opinion. Firstly, it is incumbent to examine the expert’s type of practice and if their work will undergo any substantive changes by the time of trial. There is often no way to definitively determine an exact trial date at the time a lawsuit commences. As such, attorneys should strive to retain an expert who plans to engage in clinical practice work for the foreseeable future. Physicians who seek to obtain new employment in the areas of hospital administration or academia at some point in their careers might not be best for attorneys to retain.
The definition of active clinical practice includes the direct supervision of physicians treating patients. As such, attorneys should be wary of potential experts whose functions are in executive or managerial work. Attorneys should also be wary of those who only indirectly supervise treating physicians. This definition may limit the prospective pool of experts. However, it also provides useful clarification as to which functions the court deemed sufficient under the applicable Ohio rules.
