Johnson v. Abdullah

• Decision Date: 27 November 2019
• Docket Number: NO. C-180309,C-180309
• Citation: 136 N.E.3d 581,2019 Ohio 4861
• Parties: Mark JOHNSON, Individually, and as Guardian of David Johnson, an Incompetent, Glenda Johnson, and Gary Johnson, Plaintiffs-Appellants, v. Anthony ABDULLAH, M.D., Defendant-Appellee.
• Court: Ohio Court of Appeals

136 N.E.3d 581

2019 Ohio 4861

Mark JOHNSON, Individually, and as Guardian of David Johnson, an Incompetent, Glenda Johnson, and Gary Johnson, Plaintiffs-Appellants,

v.Anthony ABDULLAH, M.D., Defendant-Appellee.

NO. C-180309

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: November 27, 2019

Brannon & Associates, Dwight D. Brannon, Kevin A. Bowman and Matthew C. Schultz, Dayton, for Plaintiffs-Appellants,

Arnold Todaro Welch & Foliano Co., LPA, Gregory B. Foliano, Columbus, and John B. Welch, Dayton, for Defendant-Appellant.

OPINION

Bergeron, Judge.

{¶1} Evid.R. 601(D) stems from a salutary purpose—preventing "hired gun" professional witnesses who do not actually treat patients from pontificating on how treating doctors should have performed their jobs in medical malpractice cases. But the square peg of this purpose does not always fit in the round hole of the language the rule employs. As a result, since its inception, Ohio courts have sometimes struggled trying to imbue the rule with sensible meaning. This case-by-case analysis has generated some confusion, and we endeavor to clarify today the standard required for an expert to engage in the "active clinical practice" of medicine.

{¶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 for 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 ends back together (i.e., anastomosis). Despite Mr. Johnson's deteriorating condition during his recovery, he was discharged from The Christ Hospital on the afternoon of October 1, just a few days after his surgery. Within hours of his discharge, Mr. Johnson returned to the hospital with complaints of shortness of breath, this time seeing defendant-appellee Dr. Anthony Abdullah in the emergency room. In an attempt to identify the problem, Dr. Abdullah, between the hours of 9:45 p.m. and 2:50 a.m., ordered and performed a battery of tests. Unfortunately, during one of these tests, Mr. Johnson suffered a cardiac arrest, which necessitated resuscitation before a pulse returned. As a result of the cardiac arrest, Mr. Johnson suffered an anoxic brain injury, requiring him to live in the care of a long-term nursing facility where he remains in a vegetative state.

{¶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 associated 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 case, Mr. Johnson presented expert testimony that, based on his symptoms and signs (i.e., belabored breathing, audible wheezing, and portable x-ray picture of his "abnormal" lung), the standard of care required Dr. Abdullah to intubate Mr. Johnson earlier, instead of after his cardiac arrest. Such measures, according to Mr. Johnson's expert, would have protected his airways and prevented him from entering into arrest, thereby avoiding the anoxic brain injury that precipitated his vegetative state.

{¶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 recent 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 Evid.R. 601(D) because he was not involved in the active clinical practice of medicine. Faced with this objection, the trial court conducted a short voir dire at trial, ultimately deeming Dr. Walls competent to testify.

{¶8} Given our disposition of this appeal, and in the interests of brevity, we will not dwell on the other details of the trial germane to other assignments of error that we find moot. Suffice it to say, after hearing all the evidence at trial, the jury returned a unanimous defense verdict, finding Dr. Abdullah not negligent.

{¶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 two 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 Evid.R. 601(D). Because a trial court enjoys discretion in evaluating a witness's competency to testify as an expert, we will not reverse a trial court's decision absent a showing that the court abused its discretion. See Celmer v. Rodgers , 114 Ohio St.3d 221, 2007-Ohio-3697, 871 N.E.2d 557, ¶ 19.

A.

{¶11} When providing expert testimony regarding liability in a medical malpractice action, Evid.R. 601(D) requires:

(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 medicine, we concentrate our analysis on this aspect of the rule, attempting to crystalize the standard for "active clinical practice" along the way.

{¶12} Notably, Evid.R. 601(D) fails to define "active clinical practice," leaving courts to struggle with this somewhat elusive requirement when evaluating the competency of medical experts. Several decades ago, in offering guidance, the Ohio Supreme Court in McCrory v. State , 67 Ohio St.2d 99, 423 N.E.2d 156 (1981), encouraged courts to interpret "active clinical practice" broadly in light of the purpose behind Evid.R. 601(D) : "to preclude testimony by the physician who earns his living or spends much of his time testifying against his fellows as a professional witness[.]" McCrory at 103, 423 N.E.2d 156 ; see Celmer at ¶ 23 ("[T]o prohibit a physician who makes his living as a professional witness from testifying on the liability of physicians who devote their professional time to the treatment of patients.").

{¶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, 423 N.E.2d 156. Wary...