Summary
addressing the experts who may testify as to "fault or liability" under the rule
Summary of this case from Melvin v. Ohio State Univ. Med. Ctr.Opinion
No. 80-755
Decided July 8, 1981.
Malpractice — Physicians and patients — Expert testimony — Admissible, when — R.C. 2743.43 — "Active clinical practice," construed.
The phrase "active clinical practice," contained in R.C. 2743.43(A), primarily describes those physicians who spend three-fourths of their professional time treating patients, but it also includes the physician-specialist whose work 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.
APPEAL from the Court of Appeals for Franklin County.
This appeal arises out of a medical malpractice action filed in the Court of Claims by appellants, Dorothy McCrory and her son, Edward McCrory, against appellees, the state of Ohio and Ohio Youth Commission ("Youth Commission").
In their complaint, appellants alleged that Edward McCrory, while in the exclusive custody and control of the Youth Commission, suffered a severe and prolonged overdose of the anti-convulsant drug Dilantin, resulting in Dilantin intoxication. Appellants alleged that the Dilantin intoxication caused Edward to suffer temporary pain and suffering, as well as severe and permanent cerebellar brain damage, and that as a result of the brain damage, Edward is unable to walk, speak coherently, or care for himself.
The medical experts agreed that the medical staff of the Ohio Youth Commission failed to provide Edward with the degree of care prescribed by accepted medical standards by failing to closely monitor his condition, and thereby failing to alleviate his pain and suffering while at the Youth Commission.
Appellants' medical experts testified that Edward's permanent cerebellum degeneration was caused by the Dilantin intoxication. They stated that Dilantin is specifically targeted to the cerebellum, and that only the cerebellum is damaged by Dilantin. Appellants' experts asserted that because only the cerebellum portion of Edward's brain was found to have degenerated, Dilantin was the only possible explanation. They asserted that a lack of oxygen to the brain (anoxia), resulting from the grand mal seizures suffered by Edward, could not have caused the damage here because, unlike brain damage caused by Dilantin intoxication, brain damage due to grand mal seizures adversely affects the entire brain and not just the cerebellum. They also testified that the damage here could not have been caused by temporal lobe seizures either, because such seizures do not cause brain damage of any type since they do not result in deprivation of oxygen to the brain.
Appellees presented two expert witnesses, Dr. Robert Buchanan and Dr. Howard Tucker. Dr. Buchanan is employed as Director of the Clinical Research Department by the Parke-Davis Pharmaceutical Company in Ann Arbor, Michigan. He supervises a staff of eight or nine other physicians engaged in evaluating and developing drugs for use in humans. Parke-Davis manufactures 70 percent of the world's anti-convulsant drugs, such as Dilantin. Dr. Buchanan spends 85 percent of his professional time on his job with Parke-Davis. The remaining 15 percent of his time is divided between his work as a Clinical Assistant Professor of Pediatrics at the University of Michigan Medical Center and the practice of pediatrics at Children's Hospital in Ann Arbor. Dr. Buchanan is one of the world's leading authorities on the effects of Dilantin. He has written numerous articles on Dilantin appearing in prestigious medical journals.
Over objection, Dr. Buchanan testified that Dilantin did not cause Edward's cerebellar damage. He stated that there is no controlled scientific evidence that Dilantin administered at any dosage and for any period can cause cerebellar damage. He stated further, that while there is anecdotal evidence that Dilantin can cause cerebellar damage when administered at high dosages over an extended period of time, the relatively low dosage and short period here precluded Dilantin from being the cause of Edward's brain damage. Dr. Buchanan stated that in his opinion Edward's cerebellar damage was caused by the severe seizure disorder from which he had suffered since infancy.
Appellees' other expert medical witness, Dr. Tucker, testified that in his opinion the Dilantin administered to Edward did not cause the cerebellar brain damage. He stated that the brain damage resulted from Edward's life-long seizure activity. Specifically, he believed that the cerebellar brain damage was caused by a lack of oxygen to the brain (anoxia) as a result of temporal lobe seizures.
All the experts agreed that nowhere in medical literature is there any record of cerebellar dysfunction and degeneration resulting from the use of Dilantin in the amount and for the period it was administered to Edward.
The trial court found that, although the medical care provided Edward by the agents and employees of the Youth Commission fell below the proper standard in that there was a failure to closely monitor his condition which directly and proximately caused the Dilantin intoxication, the Dilantin intoxication was not the cause of Edward's permanent cerebellar brain damage, but that the cerebellar brain damage resulted from the severe seizure disorder experienced by Edward from the age of 16 weeks until his 17th year (his age while in the custody of the Youth Commission). Judgment was rendered in the amount of $15,000 to compensate Edward for unnecessary pain and suffering temporarily caused by the Dilantin intoxication.
On appeal, appellants alleged that the trial court's findings were based on Dr. Buchanan's testimony, and that Dr. Buchanan was totally incompetent to testify because he did not devote three-fourths of his professional time to the active clinical practice of medicine as required by R.C. 2743.43, and that, therefore, the trial court prejudicially erred in allowing Dr. Buchanan to testify over their objection. Appellants also alleged that even with Dr. Buchanan's testimony the trial court's judgment was against the manifest weight of the evidence.
The Court of Appeals affirmed the trial court; it held that there was sufficient evidence in the record to support the trial court's finding that Edward's permanent disability was not proximately caused by the Youth Commission's negligence. The Court of Appeals also determined that any error committed in allowing Dr. Buchanan to testify was not prejudicial because his testimony was essentially cumulative. In a separate concurring opinion, Judge McCormac concluded that R.C. 2743.43, which restricts expert testimony on the liability issues in a medical claim, did not apply to restrict Dr. Buchanan's testimony because he testified only on the issue of proximate cause.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. McConnaughey, Stradley, Mone Moul, and Mr. Edward F. Whipps, and Michael F. Colley Associates, Mr. Michael F. Colley and Mr. Jerry L. Maloon, for appellants.
Mr. William J. Brown, attorney general, and Mr. Melvin D. Weinstein, for appellees.
We conclude that with Dr. Buchanan's testimony the judgment below was soundly based upon the evidence, but that Dr. Buchanan's testimony was crucial to the validity of the judgment since the trial court clearly relied on it heavily in making its decision.
The issue for resolution, therefore, is whether the trial court erred in allowing Dr. Buchanan to testify over appellants' objection that Dr. Buchanan was incompetent to testify because he did not devote three-fourths of his professional time to the active clinical practice of medicine as required by R.C. 2743.43.
R.C. 2743.43 provides, in relevant part, that:
This statute was enacted as part of the Ohio Medical Malpractice Act., Am. Sub. H.B. No. 682 (136 Ohio Laws 2809, 2823). R.C. 2743.43 has since been incorporated into Evid. R. 601, which provides:
"Every person is competent to be a witness except:
"***
"(D) A person giving expert testimony on the issue of liability in any claim asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care or treatment of any person, unless the person testifying is licensed to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery by the state medical board or by the licensing authority of any state, and unless such person devotes three-fourths of his professional time to the active clinical practice in his field of licensure, or its instruction in an accredited university."
"(A) No person shall be deemed competent to give expert testimony on the liability issues in a medical claim, as defined in division (D)(3) of section 2305.11 of the Revised Code, unless:
"(1) Such person is licensed to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery by the state medical board or by the licensing authority of any state.
"(2) Such person devotes three-fourths of his professional time to the active clinical practice of medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery, or its instruction in an accredited university."
Nowhere in the statute is the phrase "active clinical practice" defined. Dictionary definitions of phrases such as "clinical" and "clinical medicine" point to patient care as a basic requirement and further suggest bedside care. Hence, we conclude 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. More specifically, we conclude that the purpose of the statute is to preclude testimony by the physician who earns his living or spends much of his time testifying against his fellows as a professional witness, and to prevent those whose lack of experiential background in the very field they seek to judge, the clinical practitioner, makes the validity of their opinions suspect, from expressing those opinions for pay or otherwise.
It is self-evident, however that we must devise a definition of active clinical practice of medicine that is not so narrow as to include only the physician who is in direct contact with the patient at his bedside. For such a definition would exclude the large panoply of medical expertise of various physician-specialists who work daily in and for our hospitals often assisting, directing, or advising the attending physician in his care of the sick. Such physicians are directly involved in the care of the patient and are usually aware of the progress of the treatment of his health problems and of that treatment's ultimate result. Their ministrations form inseparable parts of that patient's care. Their expertise is necessary in any determination of fault or responsibility. To exclude their testimony in the attempt to determine liability would be unthinkable. For example, the physician-pathologist is often so totally essential at several points in the patient's care that to narrow the definition of clinical practice so as to exclude his testimony would be absurd as well as totally destructive of the validity of the inquiry into liability. What is true of the pathologist is also true of the radiologist, the hematologist, and perhaps others who are adjunctive to patient care. Therefore, we hold that while the phrase "active clinical practice," contained in R.C. 2743.43(A), primarily describes those physicians who spend three-fourths of their professional time treating patients, it also includes the physician-specialist whose work 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.
Having determined that the phrase "active clinical practice" includes more than those physicians who regularly treat patients directly, we must determine whether Dr. Buchanan falls within this larger definition.
Dr. Buchanan spends 85 percent of his professional time as Director of Clinical Research at Parke-Davis, the company that manufactures Dilantin. In his job, Dr. Buchanan does medical research and supervises the research done by a staff of physicians who evaluate and develop new drugs for use in humans and who detail its characteristics, dosage and usage to physicians such as those employed here by the state. Because of his work, Dr. Buchanan has had a greater opportunity than anyone to study and learn about the effects of Dilantin and has done so. Therefore, Dr. Buchanan's credentials as an expert medical witness, in the instant cause, are exceptional, since his testimony dealt with the issue whether Dilantin was the proximate cause of Edward's cerebellar brain damage. Because of his work, Dr. Buchanan is one of the world's leading authorities on the effects of Dilantin.
While Dr. Buchanan may to some extent have an interest in the outcome of the suit, since his employer is the manufacturer of Dilantin, this should not render him incompetent to testify, but rather, should be taken into account in giving weight to his testimony.
Dr. Buchanan is as adjunctive to patient bedside care as the others we have described. The drug in question is manufactured and tested and distributed under his supervision and, after qualifying for approval by the appropriate governmental agencies, the drug is detailed to the physician accompanied by literature describing its uses and dosages, with warnings of side effects and other caveats. With much reliance on these, the attending physicians treat the patient. Effectiveness of the drug is observed at the bedside and reported in various ways including the mentioned medical literature. The admission of Dr. Buchanan's accumulated and expert knowledge in this field by extension of the definition of clinical practice of medicine is indicated by necessity, and that testimony, entirely trustworthy and credible, does not violate the principle of fairness sought by the statute or any rule of evidence.
Noteworthy, too, is the fact that Dr. Buchanan's testimony would be material and relevant under his unquestioned expertise qualifications even were he not a physician. His being a physician should not result in the exclusion of his obviously relevant testimony.
The trial court found that Dr. Buchanan was competent to testify as an expert medical witness. "The qualification of competency of a witness to testify as an expert***rests with the trial court, and, on appeal, its ruling with respect to such matters will ordinarily not be reversed unless there is a clear showing that the court abused its discretion." Ohio Turnpike Comm. v. Ellis (1955), 164 Ohio St. 377, paragraph eight of the syllabus; Alexander v. Mt. Carmel Medical Center (1978), 56 Ohio St.2d 155; State v. Maupin (1975), 42 Ohio St.2d 473; Akron v. Pub. Util. Comm. (1966), 5 Ohio St.2d 237; Tully v. Mahoning Express Co. (1954), 161 Ohio St. 457. We find that the trial court did not abuse its discretion in allowing Dr. Buchanan to testify over appellants' objection.
Dr. Buchanan was competent to testify. With the inclusion of his testimony, there was competent, credible evidence going to all the essential elements of the case and, therefore, we find that the holdings below were not against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
COOK, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.
CELEBREZZE, C.J., concurs in the judgment.
COOK, J., of the Eleventh Appellate District, sitting for W. BROWN, J.