Buckingham, Doolittle & Burroughs, LLC

A seminal issue in many medical malpractice cases involves qualified expert opinions. Under Ohio law, obtaining such experts is a threshold matter for any medical claim;[1] notable legal safeguards exist to ensure that these potential expert witnesses are adequately qualified to opine on medical and scientific matters. For example, Ohio Evidence Rule 601 establishes guidelines regarding certain qualifications, including the “active clinical practice” requirement in order for an expert to opine on various topics, such as the applicable medical standard of care. This requirement has been subject to frequent litigation in Ohio courts. On September 22, 2021, the Ohio Supreme Court in the Abdullah[2] case provided clarification and guidance on the “active clinical practice” requirement that experts must meet in order to provide testimony under Evid.R. 601.

More specifically, pursuant to Evid.R. 601(B), an expert providing testimony on the issue of liability for a medical claim 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.” Application of this rule has frequently hinged on the definition of “active clinical practice,” which is unclear from the plain language of the rule itself. Historically, the Ohio Supreme Court previously defined “active clinical practice” as: “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.”[3]

However, in this most recent decision, the Court in Abdullah reversed a trial court decision permitting testimony from an expert witness whose work responsibilities predominantly consisted of executive and administrative roles. Now, to be a qualified expert witness, a physician primarily employed in an executive position must also directly oversee physicians engaged in patient care.[4]

Importantly, an expert’s ability to meet this “active clinical practice” threshold is evaluated at the time of trialnot at the time of the alleged malpractice (as argued in Abdullah), nor when the case was filed or when experts were disclosed. A limited exception has been provided when a party’s expert witness is appropriately qualified as of the originally-scheduled trial date, but the trial is delayed at the request of the opposing party.[5] This timing exception is particularly important since trial dates are frequently postponed (especially during the COVID-19 pandemic), and the underlying alleged medical malpractice may have occurred many years prior.

Another notable consideration for practitioners here involves medical experts who change the scope of their practice, or even retire during the pendency of the lawsuit for which they are retained. Moving forward from the Abdullah decision, it will be imperative for litigants to proactively monitor the status of an expert’s practice and job responsibilities. And in some situations, such drastic changes to a medical expert’s career may necessitate finding a new expert to avoid disqualification per this recent interpretation of Evid.R. 601 in Abdullah.

In short, Abdullah strengthens the requirements which govern the admissibility of expert testimony in lawsuits for medical malpractice by mandating that a purported medical expert maintains an “active clinical practice” through the time of trial. This rule will provide further protection to Ohio medical professionals and healthcare institutions by ensuring litigants are not utilizing experts who no longer actually have active clinical practices and instead serve in administrative positions or semi-retirement roles. At the same time, the Abdullah decision serves as an important reminder for attorneys to ensure that their medical experts maintain active clinical practices during the pendency of the litigation.

[1] In Ohio, Civ.R. 10(D)(2) requires that an Affidavit of Merit is produced in support of medical claims, from a qualified medical expert, and must accompany the complaint.

[2] Johnson v. Abdullah, 2021-Ohio-3304.

[3] McCrory v. State, 67 Ohio St.2d 99, 423 N.E.2d 156 (1981).

[4] Johnson at ¶32.

[5] Celmer v. Rodgers, 114 Ohio St.3d 221, 2007-Ohio-3697, 871 N.E.2d 557.

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