Johnson v. Abdullah

Decision Date22 September 2021
Docket Number2020-0303
Parties JOHNSON et al., Appellees, v. ABDULLAH, Appellant.
CourtOhio Supreme Court

Brannon & Associates, Dwight D. Brannon, and Kevin A. Bowman, Dayton, for appellees.

Arnold Todaro Welch & Foliano Co., L.P.A., John B. Welch, Dayton, and Gregory B. Foliano, Columbus, for appellant.

Fischer, J. {¶ 1} In this case, we are asked to consider what constitutes "active clinical practice" as that term is used in Evid.R. 601(B)(5). In accordance with the plain language of that rule, we hold that a physician employed in an executive position who does not directly oversee physicians who treat patients does not satisfy the active-clinical-practice requirement of Evid.R. 601.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} Appellees, Mark Johnson (acting both in his individual capacity and in his capacity as a guardian of his brother, David Johnson) and two of his siblings—Glenda Johnson and Gary Johnson—filed a medical-malpractice suit. (For ease of discussion, we will refer to appellees collectively as "Johnson.") The allegation in the complaint that is relevant to this decision is Johnson's allegation that appellant, Dr. Anthony Abdullah, was negligent in his treatment of David in 2011.

{¶ 3} During the trial, Abdullah called Dr. Ron Walls to testify as an expert regarding the standard of care. Johnson had sought to prevent Walls from testifying on the basis that Walls failed to satisfy the requirements of Evid.R. 601 because he was not involved in the active clinical practice of medicine. After counsel conducted voir dire of Walls, the trial court determined that he was competent to testify. The jury found that Abdullah had not been negligent in treating David.

{¶ 4} Johnson raised numerous assignments of error on appeal. In its decision reversing and remanding the case for a new trial, the First District Court of Appeals addressed only Johnson's assignment of error challenging the trial court's decision to admit the expert testimony of Walls. 2019-Ohio-4861, 136 N.E.3d 581, ¶ 33. In beginning its analysis, the court stated that Ohio courts have sometimes struggled to apply the active-clinical-practice requirement of Evid.R. 601. Id. at ¶ 1. The court noted that Walls was the chief operating officer ("COO") of a hospital system. Id. at ¶ 2. Although Walls had testified that everything he did in his role as COO had an effect on patient care, the First District concluded that Walls's job was "almost entirely administrative." Id. The court reasoned that if Walls's activities constituted the active clinical practice of medicine, then nonphysician COOs would also be engaged in the active clinical practice of medicine. Id. Considering this conclusion antithetical to Evid.R. 601, the court rejected Abdullah's argument that Walls was engaged in the active clinical practice of medicine, despite Walls's being an accomplished doctor. Id. at ¶ 2-3. Concluding that the plain language of Evid.R. 601 should have prevented Walls from testifying and that the trial court's decision permitting Walls's testimony was not harmless error, the court reversed the trial court's judgment and remanded the case for a new trial. Id. at ¶ 3, 32.

{¶ 5} We accepted jurisdiction over Abdullah's appeal, in which he set forth a single proposition of law: "When reviewing a trial court's decision on a witness’[s] competence, an appellate court is not free to weigh in on the credibility of that witness and substitute its own judgment for that of the trial court." See 158 Ohio St.3d 1511, 2020-Ohio-2815, 144 N.E.3d 462.

II. ANALYSIS

{¶ 6} In his proposition of law, and throughout much of his argument before this court, Abdullah asserts that the First District improperly reweighed Walls's credibility. He maintains that in reversing the trial court's judgment, the appellate court rejected the trial court's finding that Walls's testimony was credible and substituted its own determination that Walls was not telling the truth. It is well settled that the responsibility of weighing the credibility of a witness rests with the fact-finder. See, e.g. , State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The First District did not violate this principle. It accepted Walls's descriptions of his professional duties, activities, and responsibilities. E.g. , 2019-Ohio-4861, 136 N.E.3d 581, at ¶ 21. In reversing the trial court's judgment, the First District did not find Walls's testimony to be untruthful; instead, the court concluded, based on Walls's testimony, that Abdullah had failed to establish that Walls devoted at least one-half of his professional time to the active clinical practice of medicine. Id. at ¶ 24.

{¶ 7} Although Walls testified that he did meet this standard, neither the First District nor this court is required to accept Walls's determination that his professional duties satisfied the definition of the legal term "active clinical practice." See State v. Williams , 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 25 (explaining that appellate courts apply the law to the facts of individual cases to make legal determinations and that just because "facts are involved in the analysis does not make the issue a question of fact deserving of deference to a trial court"). In such instances, the appellate court must independently determine, without deference to the trial court's conclusion, whether the facts satisfy the applicable legal standard. Id. at ¶ 26, citing State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Indeed, no court should abdicate its duty to interpret the law to anyone, including an expert witness. Because this case turns on whether at least 50 percent of Walls's professional time was devoted to the active clinical practice of medicine as that term is used in Evid.R. 601, our analysis will focus on determining whether the activities that Walls spent the majority of his professional time engaged in qualify as the active clinical practice of medicine.

{¶ 8} Abdullah emphasizes that Walls is not a "hired gun" or "professional witness." In light of the fact that Walls's professional role changed in 2015, Abdullah asserts that pursuant to Celmer v. Rodgers , 114 Ohio St.3d 221, 2007-Ohio-3697, 871 N.E.2d 557 (plurality opinion), the trial court was permitted to look at Walls's activities at the time the alleged malpractice occurred to determine whether Walls was qualified to testify as an expert witness at trial. Abdullah asserts that based on the evidence in the record, 75 percent of Walls's professional time prior to 2015 was devoted to the active clinical practice of medicine or its instruction. Looking at the period after 2015 (the trial occurred in 2017), Abdullah asserts that Walls's testimony—particularly Walls's assertion that "[e]verything that happens related to patient care in [the] hospital is [his] direct responsibility"—establishes that Walls was engaged in the active clinical practice of medicine.

{¶ 9} Johnson responds that Walls was not competent to testify under Evid.R. 601, because the evidence in the record shows that prior to 2015, Walls devoted the majority of his professional time to administrative matters and medical-legal consulting work and that after 2015, Walls devoted 90 percent of his time to administrative and executive matters.

{¶ 10} The parties do not dispute the substance of Walls's testimony regarding the specific duties and responsibilities he had prior to and after 2015. Each accepts that testimony at face value, with the differences between the parties’ positions essentially consisting of differing views on whether those duties and responsibilities may be characterized as the active clinical practice of medicine under Evid.R. 601.

{¶ 11} Evid.R. 601(B) provides in relevant part that a person is disqualified to testify as a witness when the court determines that the person is

(5) * * * giving expert testimony on the issue of liability in any medical claim , as defined in R.C. 2305.113, 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 :
* * *
(b) 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.

(Emphasis added.) Evid.R. 601 was amended in 2020 and 2021 (while this case was pending), and the amendments caused this provision to be renumbered from Evid.R. 601(D) to Evid.R. 601(B)(5). The amendments did not substantively change the relevant provision. For the purposes of this analysis, we will refer to the provision by its current section.

A. An overview of our decisions addressing the active-clinical-practice requirement

{¶ 12} Before addressing to what extent Walls was engaged in the active clinical practice of medicine under Evid.R. 601, we will briefly review our previous decisions addressing the active-clinical-practice requirement.

1. McCrory v. State

{¶ 13} The seminal case in this area is McCrory v. State , 67 Ohio St.2d 99, 423 N.E.2d 156 (1981). In that case, we 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." Id. at syllabus.

{¶ 14} In McCrory , in which we interpreted a statutory precursor to the current Evid.R. 601, we began our analysis by noting that the relevant statute (like the current rule) did not define the term "active clinical practice." Id. at 103, 423 N.E.2d 156. We explained that "the statute deals with the basic unfairness of permitting the pointing of accusatory fingers by those who do not take care of the sick toward those who do." Id. We added that

the purpose of the statute is to preclude testimony by the physician who earns
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