“Active Clinical Practice” Requirements for Expert Witnesses Now Evaluated at the Time of Alleged Malpractice

July 14, 2023    •    2 min read

In recent years, issues surrounding the admissibility of expert witness testimony in medical malpractice matters have been more prevalent than ever. In general, Ohio law mandates that medical claims are sufficiently supported by an Affidavit of Merit from a qualified medical expert pursuant to Rules such as Civ.R. 10(D)(2) and Evid.R. 601.[1]

Evid.R. 601 establishes the general competency thresholds for expert witnesses, including the “active clinical practice” requirement. More specifically, pursuant to Evid.R. 601(B)(5) and R.C. 2305.113, a person giving expert testimony regarding liability in a medical claim must devote at least fifty percent of his/her professional time to active clinical practice in his/her field. Pertinent to evaluation of such thresholds moving forward, Ohio recently amended Evid.R. 601(B)(5) to resolve issues stemming from the “active clinical practice” precedent set forth in the Supreme Court of Ohio’s ruling in Johnson v. Abdullah in 2021.[2] Here, the Court held that Evid.R. 601 required expert witnesses, like defendant-physician Dr. Abdullah in that case, to meet the “active clinical practice” requirement at the time their testimony is offered in trial.[3]

As of July 1, 2023, however, “active clinical practice” requirements will no longer be evaluated under the Abdullah precedent (i.e., at the time of trial) due to recent amendments to Evid.R. 601. Now, under Evid.R. 601(B)(5)(b), a person giving expert testimony regarding liability in the context of a medical claim must devote “at least one-half of his/her professional time to the active clinical practice in his/her field of licensure, or to its instruction in an accredited school, at eitherthe time the negligent act is alleged to have occurred or the date the claim accrued” (emphasis added).

As a result of the amended Rule, Ohio’s previously heightened standards for expert testimony have become slightly more lax. With this change, Ohio healthcare institutions may face increased risks as litigant’s “pool of experts” increase. [4] On the other hand, it provides possible benefits to medical professionals by permitting them to defend their own care despite their decision to retire during what can oftentimes be a lengthy litigation process, or similarly expanding their own defense expert capacity as well.

For more information contact Monica Davis, Associate, at [email protected].

[1] Bruni v. Tatsumi, 46 Ohio St.2d 127, 131-32, 346 N.E.2d 673 (1976).

[2] Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463.

[3] See Celmer v. Rodgers, 114 Ohio St.3d 221, 2007-Ohio-3697, 871 N.E.2d 557 (applying the prior Evid.R. 601(B)(5) which showed that expert witnesses must presently be engaged in active clinical practice at the time of their testimony, except in limited circumstances).

[4] Rose v. United States Louis Stokes Va. Med. Ctr., No. 1:19CV514, 2022 U.S. Dist. WL 10658098 (N.D. Ohio 2022).

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