[Cite as O'Malley v. Forum Health, 2013-Ohio-2621.]


                                 IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                  TRUMBULL COUNTY, OHIO


ANN M. O’MALLEY, INDIVIDUALLY AND                     :   OPINION
AS PERSONAL REPRESENTATIVE
OF THE HEIRS AND ESTATE OF                            :
WILLIAM JAMES O’MALLEY, DECEASED,                         CASE NO. 2012-T-0090
                                                      :
                 Plaintiff-Appellee/
                 Cross-Appellant,                     :

        - vs -                                        :

FORUM HEALTH, d.b.a. FORUM HEALTH                     :
TRUMBULL MEMORIAL HOSPITAL, et al.,
                                                      :
                 Defendants-Appellants/
                 Cross-Appellees.                     :


Civil Appeal from the Trumbull County Court of Common Pleas.
Case No. 2007 CV 2205.

Judgment: Affirmed.


Dennis P. Zapka and David H. Boehm, McLaughlin Law, LLP, 1111 Superior Building,
Suite 1350, Cleveland, OH 44114-2500 (For Plaintiff-Appellee/Cross-Appellant).

Thomas J. Wilson, Comstock, Springer & Wilson Co., L.P.A., 100 Federal Plaza East,
Suite 926, Youngstown, OH 44503-1811 (For Defendants-Appellants/Cross-Appellees).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellants/Cross-Appellees Mohammed Rashid, M.D., and Forum Health,

d.b.a. Forum Health Trumbull Memorial Hospital, appeal the Trumbull County Court of

Common Pleas’ judgment after a jury verdict in favor of Appellee/Cross-Appellant Ann
M. O’Malley, individually and as personal representative of the heirs and estate of

William James O’Malley, deceased. Appellants also appeal the judgment denying a

motion for new trial. Appellants claim the trial court abused its discretion in finding Dr.

Louis Flancbaum competent to testify as an expert witness under Evid.R. 601(D)

because he did not devote one-half of his professional time to the active clinical practice

of medicine at the time he offered his testimony. Appellants contend Dr. Flancbaum’s

testimony was improper and prejudicial and, therefore, request this court remand the

matter for a new trial. The issue on appeal is whether a trial court may find a witness

competent to offer expert testimony regarding the liability of a physician in a medical

malpractice case if that witness, at the time of testimony, does not devote one-half of his

professional time to the active clinical practice of medicine. Appellee/Cross-Appellant

appeals the judgment denying a motion in limine, which sought to exclude expert

testimony on behalf of appellants from Dr. Neuenschwander.

       {¶2}   Courts throughout Ohio, including this one, have read the “active clinical

practice” requirement of Evid.R. 601(D) flexibly.      After examining Dr. Flancbaum’s

length of practice, extensive experiential background, special experience in trauma

care, continuing education, and the fact he was engaged in active clinical practice at the

time relevant to the lawsuit, we conclude, in accordance with the purpose and function

of Evid.R. 601(D), the trial court did not abuse its discretion in allowing Dr. Flancbaum

to testify and in denying a new trial. This conclusion renders the cross-appeal moot.

For the reasons more fully set forth below, the judgment is affirmed.

       {¶3}   On August 29, 2007, Ms. O’Malley filed this medical malpractice action

seeking damages for, inter alia, negligence and wrongful death.           The allegations




                                            2
stemmed from decedent William O’Malley’s September 1, 2006 visit to Trumbull

Memorial Hospital emergency room.         Mr. O’Malley, age 70, was transported to the

emergency room at approximately 6:00 p.m., complaining of acute chest pain following

a fall two days prior which resulted in multiple rib fractures. While at the emergency

room, numerous tests were performed on Mr. O’Malley that, as Ms. O’Malley’s experts

would explain, suggested the existence of blood in the patient’s chest.            When

resuscitation efforts commenced hours after the lab test results were available, Mr.

O’Malley suffered significant hemorrhage in his left chest cavity which resulted in fatal

internal blood loss.

       {¶4}   Following extensive discovery, including numerous motions in limine, the

matter proceeded to trial.    During trial, Ms. O’Malley presented, over objection, the

videotaped testimony of Dr. Flancbaum as an expert witness.            Dr. Flancbaum’s

testimony indicated that Dr. Rashid, a Trumbull Memorial emergency room physician

who treated Mr. O’Malley, deviated from the applicable standard of care and that Mr.

O’Malley’s death was, in fact, preventable. Dr. Flancbaum opined that Dr. Rashid failed

to recognize the severity of Mr. O’Malley’s injuries based on lab test results that were

available at the time Dr. Rashid first appeared at Mr. O’Malley’s bedside; i.e., that the

patient was hemorrhaging blood and was technically in hemorrhagic shock upon arrival.

Dr. Flancbaum additionally explained that Dr. Rashid failed to address Mr. O’Malley’s

injuries with proper and timely treatment. Appellants cross-examined Dr. Flancbaum

and attacked the credibility of his opinion.




                                               3
       {¶5}   Ms. O’Malley also presented the expert testimony of Dr. Samuel Kiehl,

who similarly testified that Dr. Rashid failed to recognize the severity of the trauma

demonstrated by the test results and failed to respond accordingly.

       {¶6}   The jury returned its verdict in favor of Ms. O’Malley and against Dr.

Rashid and Forum Health in the amount of $556,779.15.             The trial court entered

judgment for Ms. O’Malley on April 27, 2012.

       {¶7}   Shortly thereafter, numerous post-verdict motions were filed. Appellants

filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial,

which was denied. Ms. O’Malley filed a motion for prejudgment interest which, via

October 18, 2012 judgment entry, was dismissed without prejudice.

       {¶8}   On November 6, 2012, appellants filed their notice of appeal, seeking to

challenge the trial court’s judgment on the verdict and judgment denying a new trial.

We note this appeal is timely, as “[a] journalized jury verdict is not a final, appealable

order when a motion for prejudgment interest has been filed and remains pending.”

Miller v. First Internatl. Fid. & Trust Bldg., 113 Ohio St.3d 474, 2007-Ohio-2457,

syllabus.

       {¶9}   Appellants assert a single assignment of error for consideration by this

court, which states:

       {¶10} “The trial court committed prejudicial error in allowing the testimony of

plaintiff’s expert, Dr. Louis Flancbaum, over Dr. Rashid’s objection.”

       {¶11} Under their sole assignment of error, appellants raise two issues. They

first contend the trial court abused its discretion in allowing Dr. Flancbaum to testify as

an expert when he did not devote any of his time to the active clinical practice of




                                             4
medicine at the time of trial, purportedly in contravention of Evid.R. 601(D). Appellants

further contend this alleged abuse of discretion resulted in improper and prejudicial

testimony such that the trial court should have granted a new trial pursuant to Civ.R.

59(A)(6) (“judgment is not sustained by the weight of the evidence”) and Civ.R. 59(A)(9)

(error of law, Evid.R. 601(D)). Appellants request this court reverse the judgment and

remand the matter for a new trial.

       {¶12} In response, Ms. O’Malley argues the evidentiary ruling was not an abuse

of discretion, highlighting Dr. Flancbaum’s extensive experiential background, his

special experience, his one-half professional time devotion to active clinical practice at

the time the action accrued, and the general principle, best stated by Wigmore, that

“[t]he retirement from active practice involves no disqualification.”         7 Wigmore,

Evidence, Section 687, at 3, fn.1 (Chadbourn Rev.1978).

       {¶13} Evidentiary rulings, including whether a witness is competent to testify as

an expert, are entrusted to the sound discretion of the trial court. Alexander v. Mt.

Carmel Medical Center, 56 Ohio St.2d 155, 157 (1978).          As such, the standard of

review is whether the trial court abused its discretion in its ruling. Id. An abuse of

discretion is defined as the “failure to exercise sound, reasonable, and legal decision-

making.” Black’s Law Dictionary 11 (8th Ed.2004).

       {¶14} Evid.R. 601(D) governs whether a particular witness is competent to

testify in a malpractice action as an expert.     As originally enacted, Evid.R. 601(D)

derived from provisions of former R.C. 2743.43 and provided that a person was

competent to testify as an expert in a medical malpractice case if he was (1) licensed by

a state medical board and (2) devoted at least three-fourths of his time to the practice of




                                            5
medicine. In 1991, the Rule was amended, reducing the “three-fourths” requirement to

“at least one-half.”

       {¶15} Evid.R. 601(D) now states, in pertinent part:

       {¶16} Every person is competent to be a witness except:

       {¶17} * * *

       {¶18} (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 by a physician or podiatrist, 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 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. * * *

       {¶19} Thus, in order to be competent to testify, an expert in a medical

malpractice case must be licensed in one of the above-specified fields and must devote

at least one-half of his time to the active clinical practice of medicine in his specific field,

or its instruction in an accredited school. “Active clinical practice,” however, is not

defined.

       {¶20} In this case, there is no dispute that the matter is a civil medical

malpractice action against a physician and hospital. See Brannon v. Austinburg Rehab.

v. Nursing Ctr., 190 Ohio App.3d 662, 2010-Ohio-5396 (11th Dist.) (Evid.R. 601 does




                                               6
not apply in cases of ordinary negligence). There is also no dispute that Dr. Flancbaum

presented expert testimony on the issue of liability. See Melvin v. Ohio State Univ.

Med. Ctr., 10th Dist. No. 10AP-975, 2011-Ohio-3317, ¶30 (Evid.R. 601(D) did not apply

where expert witness did not offer an opinion on duty, standard of care, or breach of

duty).    Additionally, there is no dispute that Dr. Flancbaum is licensed to practice

medicine in the state of New York. The only challenge to Dr. Flancbaum’s testimony as

an expert is the contention that he did not devote, at the time of his testimony, at least

one-half of his professional time to the active clinical practice in his field of licensure, or

to its instruction in an accredited school.

         {¶21} The question, therefore, is whether a trial court may find a witness

competent to offer expert testimony on the issue of a physician’s liability in a medical

malpractice case when that witness, at the time of the testimony, does not devote one-

half of his professional time to the active clinical practice of medicine.

         {¶22} The purpose of Evid.R. 601(D) is two-fold: (1) “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 (2) to “prevent those whose lack of experiential

background in the very field they seek to judge, [i.e.,] the clinical practitioner, * * * from

expressing their opinions for pay or otherwise.” McCrory v. State, 67 Ohio St.2d 99,

159 (1981).     Stated differently, the rule seeks to eliminate “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. However, the purpose of Evid.R. 601(D) is not to make proof

of a medical claim more difficult. Crosswhite v. Desai, 64 Ohio App.3d 170, 177 (2d

Dist.1989).    Indeed, the burden of proof in a medical malpractice case is naturally




                                              7
increased due to the nature of the claim itself and the fact that “expert testimony is

ordinarily needed to establish the requisite standard of care and skill a physician owes

in his treatment of a patient.” Hoffman v. Davidson, 31 Ohio St.3d 60, 62 (1987);

Crosswhite at 177. The limitations imposed by Evid.R. 601(D) “should not be applied so

narrowly that the right of redress in a medical claim collapses under an undue burden.”

Crosswhite at 178.

       {¶23} In consideration of the purpose and spirit of Evid.R. 601(D), the

requirement that the clinical practice be presently active has been read flexibly by courts

throughout Ohio, resulting in two principles of application.

       {¶24} First, “active clinical practice” does not solely apply to the administration of

care by an active clinic practitioner. In McCrory v. State, supra, a person who did

medical research and supervised a staff of research doctors was competent under

Evid.R. 601(D) to testify about a drug he previously examined. The Court explained

that the “active clinical practice” requirement “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.” Id. at

syllabus.

       {¶25} Second, a witness who does not devote at least one-half of his

professional time to active clinical practice at the time of trial can nonetheless still be

found competent to testify, provided there are specific facts that establish the witness’

competency. The Second Appellate District in Crosswhite, supra, warned against the

dangers of interpreting the applicable rule and statute, which are written in the present

tense, too strictly or too literally:




                                             8
       {¶26} A literal and strict interpretation of the statute focusing only on the

               present ignores the historical nature of the inquiry and the true

               purpose of the statute. It might even permit the testimony of a

               novice currently in practice yet exclude the testimony of an

               experienced clinical practitioner who is not. It would not serve the

               purposes of the statute or the ends of justice to exclude the

               assistance of the experienced specialist whose clinical practice

               spanned decades, because he is now retired. The true purpose of

               the statute is to ensure competency, and a strict application of the

               text in its literal sense fails to do that. Id. at 178.

       {¶27} Rather, the court explained the essential inquiry is whether the witness

acquired that “special knowledge” or “experiential background” in the field he seeks to

judge. Id. In Crosswhite, the trial court excluded a retired physician’s testimony under

Evid.R. 601(D).     The Second District reversed, explaining that the retirement from

medical practice, standing alone, is not an impediment to competence. The physician in

Crosswhite had been engaged in the clinical practice of medicine for 33 years and,

though he was retired, remained licensed to practice medicine. The clinical experience

envisioned by the rule is present “if the witness is engaged or has been engaged in an

active clinical practice[.]” Id. at 179.

       {¶28} In Celmer v. Rodgers, 11th Dist. No. 2004-T-0074, 2005-Ohio-7054, ¶24,

this court applied and followed Crosswhite, holding that Evid.R. 601(D) indeed permits

flexibility in determining whether an expert meets its requirements. The Ohio Supreme




                                                 9
Court granted discretionary review of Celmer and affirmed the judgment. Celmer v.

Rodgers, 114 Ohio St.3d 221, 2007-Ohio-3967. There, the Court explained:

       {¶29} Evid.R. 601(D) uses the present tense in providing that a person is

              unable to offer medical expert testimony unless that person is

              licensed to practice medicine and devotes at least one-half of his or

              her professional time to active clinical practice.      This, however,

              does not preclude a trial court from exercising discretion in an

              appropriate case to determine that a physician is competent to

              testify[.]

       {¶30} The Supreme Court concluded: “Given the specific facts of this case and

Dr. Thompson’s competency to testify as an expert at the originally scheduled March

2002 trial, his disengagement from the active clinical practice of medicine prior to the

May 2004 trial date did not render him incompetent to testify.” Id. at ¶27. Stated

differently, “[o]n these facts, Thompson’s hiatus from the practice of medicine should not

render him incompetent to testify in this matter and does not cause him to become a

‘professional witness.’” Id. at ¶26. The Court characterized the existence of “specific

facts” as an exception to the strict language of Evid.R. 601(D). Id. at ¶27.

       {¶31} Additionally, in Aldridge v. Garner, 159 Ohio App.3d 688, 2005-Ohio-829,

¶18 (4th Dist.), though a physician did not devote one-half of his time to active clinical

practice at the time his testimony was offered, the Fourth Appellate District found his

experiential background rendered him competent to testify under Evid.R. 601(D):

“Based upon Dr. Kirwin’s length of practice, and the fact that Dr. Kirwin was engaged in

active clinical practice at all times relevant to the lawsuit against Garner, we find that Dr.




                                             10
Kirwin’s experience satisfies the purpose intended by the active clinical practice rule.”

Id.

       {¶32} Similarly here, given the specific facts of this case, it cannot be concluded

the trial court abused its discretion in finding Dr. Flancbaum competent to testify.

       {¶33} First, there is the matter of Dr. Flancbaum’s extensive experiential

background, including his special experience in trauma care. The record established

that Dr. Flancbaum has practiced medicine for over 30 years, much of which was

devoted to trauma care: he spent a five-year surgical residency at University of Illinois

Hospitals, a component of which focused in trauma services, and completed a one-year

fellowship in trauma surgery and critical care at the Maryland Institute for Emergency

Medical Service Systems. He held a five-year tenure at Robert Wood Johnson Medical

as a trauma attending and critical care attending surgeon, during which time he was

actively involved in the establishment of a level-one trauma center. Later in his career,

Dr. Flancbaum was the chief of the trauma critical care section at the Ohio State

University Hospital, a level one trauma center, and site director at St. Luke’s Hospital,

also a level one trauma center, where he was active in trauma service through 2004.

Dr. Flancbaum also authored roughly 25 to 30 papers—25% of his entire publications—

in the field of trauma care, and was an active faculty member for the American College

of Surgeon’s advanced trauma life support course.

       {¶34} Next, Dr. Flancbaum still devoted one-half of his professional time to the

active clinical practice at the time the cause of action accrued. Specifically, during the

time of Mr. O’Malley’s emergency room visit, as well as at the end of 2006, Dr.

Flancbaum was still continuing to provide critical care services. Dr. Flancbaum testified




                                            11
that, at the end of 2006, 50% of his time was devoted to critical care, both surgical and

non-surgical, at North Shore University Hospital.          Dr. Flancbaum retired shortly

thereafter, in May 2007, as a result of being afflicted with Parkinson’s Disease.

       {¶35} Finally, though not administering care at the time of his testimony, the

record illustrates that Dr. Flancbaum continues to follow medical literature, continues to

attend medical conferences on a semi-regular basis, and maintains an active medical

license in the state of New York.

       {¶36} Thus, based upon the specific facts of this case, including Dr.

Flancbaum’s length of practice, extensive experiential background, special experience

in trauma care, continuing education, and the fact he was engaged in active clinical

practice at the time the cause of action accrued, we conclude the trial court did not

abuse its discretion in allowing Dr. Flancbaum to testify. This holding is in accordance

with the purpose and function of Evid.R. 601(D).

       {¶37} As a result, appellants’ second issue is also without merit. Even without

Dr. Flancbaum’s testimony, the evidence is still sufficient to support a verdict against

appellants to withstand a motion for a new trial pursuant to Civ.R. 59(A)(6).           The

testimony from Ms. O’Malley’s other expert witness, Dr. Samuel Kiehl, also established

that Dr. Rashid breached the standard of care, the result of which proximately caused

Mr. O’Malley’s death.

       {¶38} Dr. Kiehl opined that the standard of care was breached in many ways.

First, Dr. Rashid failed to recognize that the patient’s condition required the highest level

of trauma, rather than a second-level trauma response. Dr. Kiehl explained, just as Dr.

Flancbaum, that there was an inappropriate response to Mr. O’Malley’s abnormal lab




                                             12
and radiologic studies which were available to Dr. Rashid shortly after 7:00 p.m. A

chest x-ray showed fluid on the left side of Mr. O’Malley’s chest where he had broken

his ribs. A computed tomography scan (CT scan) of the chest, abdomen, and pelvis

localized the problem to the chest, as that area showed a complex fluid with particulate

matter, suggesting the presence of blood (rather than water). Blood gas, hemoglobin,

and hematocrit test results also were indicative of a patient entering shock. Additionally,

patient diagnostic readings indicated Mr. O’Malley had serious anemia, moderate

acidosis, low blood pressure, and low blood count. The patient history report detailed

Mr. O’Malley’s recent fall and his broken ribs, which should have been taken into

account due to the known medical correlation between broken ribs and blood entering

the chest. Dr. Kiehl explained that, taken together, these results indicate the patient is

in hemorrhagic shock.      Dr. Flancbaum testified to the same points, noting that the

results indicate Mr. O’Malley suffered a massive hemothorax, meaning that blood was

present in the plural cavity of the chest.

       {¶39} Dr. Kiehl opined, just as Dr. Flancbaum did, that the response to these

results should have been immediate resuscitation and intervention; i.e., the patient

needed crystalloid fluid, blood as quickly as possible, and a chest tube to drain existing

blood and inflate the lungs. Dr. Kiehl also noted a Foley catheter to monitor urine

output, which would correlate to indications of blood volumes, should have been

administered, though Dr. Flancbaum did not mention such a specific catheter treatment.

       {¶40} Dr. Kiehl went into much detail concerning the specific failure to place a

chest tube for therapy and monitoring purposes, as did Dr. Flancbaum.            Dr. Kiehl

explained the chest tube is a relatively simple procedure where a tube is placed into the




                                             13
patient’s chest so the fluid can be drained. A chest tube placement is necessary given

that a significant amount of blood in the chest compromises the patient’s ability to

breathe appropriately and can also cause the lung to compress, thereby impeding its

ability to provide adequate respiration. Following drainage from a chest tube, Dr. Kiehl

noted the fluid volume should be measured and the tube should remain to monitor any

ongoing bleeding.

      {¶41} Dr. Kiehl noted that, in this case, a chest tube was “appropriate and

indicated” by the lab tests that came back around 7:00 p.m. He also noted that a bolus

of fluids should have been introduced at the time of the first low blood pressure reading,

at around 6:30 p.m. Though appellants claim otherwise, Dr. Flancbaum was, in fact,

less specific with the timing aspect of a chest tube placement, merely noting that the

later the bleeding is noticed, the more compromise there is to the organs in the body

and the less chance of a successful outcome.

      {¶42} Dr. Kiehl similarly set forth the apparent danger in delaying these

responses to the diagnostic information: the longer a patient remains in shock due to

blood hemorrhaging, the more likely they will die. Fluid resuscitation must be initiated

when early signs and symptoms of blood loss are apparent or suspect, not when the

blood pressure is falling or absent—this is basic trauma management according to Dr.

Kiehl’s testimony.

      {¶43} Thus, though there were minor permutations between their testimony,

both experts testified to the same material points: (1) the failure to recognize the

severity of the trauma and designate the proper trauma response; (2) the inappropriate

response to the numerous tests and studies, including the CT scan illustrating a




                                           14
complex fluid, the chest x-ray showing fluid, the patient’s vitals, and the existence of

broken ribs; (3) the inappropriately slow fluid resuscitation, including the failure to

introduce a bolus of fluids as a temporizing measure before determining more definitive

interventions; (4) the inadequate and slow administration of blood; and (5) the failure to

place a chest tube.

       {¶44} We therefore cannot conclude the trial court abused its discretion in

denying the motion for a new trial, even if Dr. Flancbaum’s testimony was entered in

error, because Dr. Kiehl essentially testified to the same material points.

       {¶45} Appellants’ sole assignment of error is without merit.

       {¶46} Appellee/Cross-Appellant Ms. O’Malley asserts one assignment of error,

which states: “The trial court committed prejudicial error in allowing the testimony of

appellant’s expert, Dr. James Neuenschwander, over appellee’s objection.”

       {¶47} Given the above-framed analysis, the cross-appeal is moot.

       {¶48} The judgment of the Trumbull County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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