Jason P. Ferrante

Key Points: In Johnson v. Abdullah, Ohio Supreme Court opines regarding “active clinical practice” competency requirement for physician liability experts. Court upheld long-standing rule that requires physician liability experts to spend 50% or more their professional time in the “active clinical practice” of medicine. Court noted that “active clinical practice” requirement must be met at the time of trial. The connection between attorney and medical expert is as important as an attorney’s relationship with any health care-related client. Both associations require ongoing communication to not only establish a sound defense, but also to maintain strategy over what may become prolonged discovery and delayed litigation. This is especially true as we all move through another year of the COVID pandemic and deal with its effects on trial schedules.  Engaging medical experts at the beginning of litigation and continuing the communication is now even more important following the Ohio Supreme Court’s decision in Johnson v. Abdullah, 2021 WL 4301159 (Ohio Sept. 22, 2021). The Johnson court upheld a long-standing rule that requires physician liability experts to spend 50% or more their professional time in the “active clinical practice” of medicine. This decision provides clarification and cautionary acknowledgement of Ohio Evid.R. 601(B)(5), which states that these experts 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 field.” Ohio’s courts have recognized that “active clinical practice” is work “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.” Rule 601(B)(5) is understood to preclude testimony from “professional witnesses” and those lacking experience in the field they are opining on. In McCrory v. State, 423 N.E.2d 56 (Ohio 1981), the Ohio Supreme Court defined “active clinical practice” to mean the work of physicians “directly involved” in patient care. An exception to the expert competency rule was most notably created by the Ohio Supreme Court in Celmer v. Rodgers, 871 N.E.2d 557 (Ohio 2007). The Celmer court looked at whether an expert could testify if he or she did not meet the “active clinical practice” standard at the time of a continued trial but was actively practicing according to the rule at the earlier time of the originally scheduled trial. The Celmer decision effectively allowed some experts to assert almost retrospective qualifications even it their “active clinical practice” was not up to standard at the time of trial. It is an important decision to consider in the age of ongoing trial continuances that we live in today. An otherwise qualified expert in 2018 or 2019 may not maintain the required percentage over the extended periods of time associated with some current litigation schedules. The Johnson court’s September 2021 decision, however, dismisses any expert relief created in Celmer. The Johnson court refused to engage in what it considered to be a dilution of Evid.R. 601. The holding strengthened the general rule and emphasized that the active clinical practice requirement must be met at the time of trial. This means that a retained medical liability expert who has transitioned into an administrative role or who has reduced their clinical practice may not survive a motion to exclude his or her trial testimony. The Johnson case specifically dealt with alleged negligence in an emergency medicine setting in 2011. The defendant’s liability expert worked in a hospital management position and served as a medical school professor. He testified at trial about his applicable accomplishments and experience that directly related to the allegations and clinical issues in the case. Arguments were raised that the expert did not meet the Evid.R. 601 competency standard because he was not actively engaged in the clinical practice of medicine. The trial court still allowed him to testify, and the jury ultimately returned a defense verdict. An appeal subsequently found that the expert’s professional time was essentially in an administrative capacity that should have prevented him from testifying. On further appeal, the Johnson court examined what defines the “active clinical practice of medicine to satisfy the standard” set forth in Evid.R. 601. The defendant physician relied on the Celmer exception to argue that the expert was more than qualified at the time of the care at issue. The court, however, would not stray from the confines of the evidentiary rule. The court’s holding not only upheld the decision to exclude the expert, but very clearly stated that the requisite active clinical practice percentage must be satisfied at the time the expert testifies at trial. Transitioning into administration and limited teaching roles during the course of litigation could very likely preclude a physician liability expert from testifying at trial. The requirements of the Johnson opinion should be the focus of any expert communication. Confirming qualifications should be an ongoing process. Counsel ought to focus on medical liability experts who intend to actively engage in clinical work for an extended period of time. Clients should also be mindful of the Ohio requirement when considering expert approval recommendations. *Jason is a shareholder working in in our Cleveland, Ohio, office. He can be reached at 216.912.3808 or JPFerrante@mdwcg.com.   Defense Digest, Vol. 28, No. 1, April 2022 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2022 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. 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