Expert Competency Rule Change Reverses Effects of Johnson v. Abdullah

Bricker Graydon LLP

Bricker Graydon LLP

To succeed in meeting their evidentiary burden for a medical malpractice claim, a plaintiff must prove a breach of the standard of care, causation, and damages through expert testimony. See Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673, 675 (1976).  Moreover, pursuant to Evid.R. 601(B)(5), in order to be qualified to opine as an expert, the expert must be licensed to practice medicine in any state, devote at least one-half of their professional time to the active clinical practice of medicine or its instruction, and practice in the same or substantially similar specialty as the defendant provider. 

When testifying to the standard of care in medical negligence cases, the expert must establish the standard of care for the defendant provider at the time of the care at issue. Therefore, it would logically follow that an expert testifying as to what that standard required and whether there was a deviation from that standard have to meet the criteria for qualification at the time the care was provided. However, in September of 2021, the Ohio Supreme Court found otherwise, holding that an expert must be qualified pursuant to Evid.R. 601(B)(5)(b) when they testify—not when the care in question happened. See Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463. In other words, an expert with decades of relevant experience who was actively practicing at the time of the care at issue would not be qualified if they retired before the time of trial, but a new expert who had not even been practicing at the time in question would be qualified.

In 2023 the Ohio General Assembly revised Evid.R. 601(B)(5)(b) to add a time parameter with the following language, “[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, at either the time the negligent act is alleged to have occurred or the date the claim accrued.” 

The effect of this rule change, which was celebrated by medical negligence attorneys on both sides of the equation, is twofold. First, because the Johnson decision disqualified some of the titans in their field just because they had subsequently retired, the quality of testifying experts is enhanced by focusing on the time that the care was provided. Second, the Johnson decision created a scramble among attorneys whose highly qualified experts were suddenly disqualified from testifying at trial and needed replaced.  This is no longer necessary. Ultimately, this Rule change enjoys rather universal support as it recognizes that the time of care and the time of qualification need to be one in the same.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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