Celmer v. Rodgers

114 Ohio St. 3d 221
CourtOhio Supreme Court
DecidedJuly 25, 2007
DocketNo. 2006-0305
StatusPublished
Cited by25 cases

This text of 114 Ohio St. 3d 221 (Celmer v. Rodgers) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Celmer v. Rodgers, 114 Ohio St. 3d 221 (Ohio 2007).

Opinions

O’Donnell, J.

{¶ 1} Dr. Edward Walker, Dr. Han Soo Shin, and Radiology Associates of Warren, Inc., appeal from a decision of the Trumbull County Court of Appeals, which affirmed a trial court order denying their oral motion to exclude Dr. Jay Thompson from offering expert testimony on behalf of Carol and Michael Celmer in this medical malpractice action.

{¶ 2} The issue presented on appeal concerns the application of Evid.R. 601(D), which specifies that only those who are licensed to practice medicine and who devote at least one-half of their professional time to the active clinical practice of medicine may testify in a civil action on the issue of a physician’s liability with respect to the diagnosis, care, or treatment of a person. We are asked to determine whether, in a situation where a trial is originally scheduled and then continued at the request of defense counsel, then stayed due to the insolvency of a defendant’s insurance carrier, and where more than two years after the original trial date, the expert witness no longer devotes at least one-half of his professional time to the active clinical practice of medicine, a trial court may permit that witness to testify as an expert at trial.

{¶ 3} The record before us reveals that in 1997 and 1998, Carol Celmer complained to her family physician, Dr. Sharon George, about a lump in her right breast. Dr. George referred her for diagnostic testing, and as a result, Dr. Edward Walker read a December 1998 mammogram and diagnosed the lump in her breast as a benign cyst. Dr. Han Soo Shin also reviewed the same mammogram and a sonogram and determined that neither showed anything suspicious. Based on these opinions and her own interpretation of these tests, George advised Celmer that she did not have cancer.

{¶ 4} Thereafter, in December 1999, Celmer obtained a new mammogram, revealing a mass in her right breast, which a biopsy showed to be a malignant tumor. As a result, she underwent chemotherapy and surgery for its removal, though the cancer eventually spread to other organs.

{¶ 5} Following her surgery, the Celmers’ legal counsel contacted Dr. Jay Thompson, who became her expert witness in this case. After reviewing her X-ray films, Thompson concluded that the cancer in her breast could have been discerned in the 1997 and 1998 mammograms and opined that the failure to identify the cancer constituted a deviation from the standard of care.

[223]*223{¶ 6} Thereafter, on April 28, 2000, the Celmers filed a medical malpractice action against Radiology Associates, Warren Radiologists, Inc., St. Joseph Health Center, and Drs. Walker, Shin, Rodgers, Goettsch, and George.

{¶ 7} At a pretrial conference held on March 20, 2001, the trial court scheduled the case for trial on March 11, 2002. However, in June 2001, the court continued the trial to June 17, 2002, at the request of Drs. Walker and Shin and Radiology Associates. Subsequently, on October 29, 2001, the court granted Dr. George’s motion to stay all proceedings as a result of an insolvency proceeding in the state of New York involving her insurance carrier. The stay remained in effect until January 2003, when the court granted the Celmers’ motion and rescheduled trial for February 23, 2004. However, on April 14, 2003, at the request of Dr. George and over the Celmers’ objection, the trial court continued the February 23 trial date to May 18, 2004.

{¶ 8} The court began trial in May 2004 against Drs. Walker and Shin and Radiology Associates. On the second day of trial, the court permitted defense counsel to voir dire Dr. Thompson regarding his competency to testify as an expert witness on behalf of the Celmers. During voir dire, Thompson acknowledged that he held a license to practice medicine in Ohio and that between February 1997 and October 2003, he had spent at least one-half of his professional time in the active clinical practice of radiology but admitted that as of November 2003, he had resided in the state of Florida and had not engaged in the practice of medicine. He further testified that four days before commencement of trial, he had accepted a new position with a radiology practice group in Ohio, where he would receive training to interpret computer radiology results.

{¶ 9} Following Thompson’s voir dire, defense counsel moved to preclude his expert testimony, arguing that he no longer qualified as a medical expert witness pursuant to Evid.R. 601(D) because, at the time of his voir dire examination, he did not devote one-half of his professional time to the active clinical practice of medicine. The trial court overruled the motion, observing that the defense counsel had requested a trial continuance and noting that had the case been tried when first scheduled, the issue would never have arisen. The court also observed that the parties did not dispute that Thompson met the requirements of Evid.R. 601(D) during 1997 to 1999, the period of time relevant to his testimony regarding the standard of care exercised in this case.

{¶ 10} Pursuant to the court’s ruling, Thompson testified at trial that Walker and Shin deviated from the standard of care when they failed to diagnose Celmer with cancer based upon the mammograms and the sonograms. Following deliberations, the jury returned verdicts in favor of the Celmers of $85,000 against Dr. Walker and Radiology Associates and $115,000 against Dr. Shin and Radiology Associates.

[224]*224{¶ 11} Walker, Shin, and Radiology Associates filed a notice of appeal to the Trumbull County Court of Appeals, alleging that the trial court had abused its discretion by permitting Thompson to testify as an expert witness because he did not devote one-half of his professional time to the active clinical practice of medicine at the time of trial, as required by Evid.R. 601(D). The appellate court rejected that argument, holding that the court did not abuse its discretion because Evid.R. 601(D) permits flexibility in determining whether an expert meets the requirements of the rule. Celmer v. Rodgers, Trumbull App. No. 2004-T-0074, 2005-Ohio-7054, 2005 WL 3610478, ¶ 24.

{¶ 12} We granted discretionary review to examine the issue of whether, in conformity with Evid.R. 601(D), a trial court may permit a witness to offer expert testimony on the liability of a physician if that witness at the time of trial does not devote one-half of his professional time to the active clinical practice of medicine. Walker, Shin, and Radiology Associates urge that the court should strictly construe Evid.R. 601(D) to mean that a witness cannot testify as an expert on the issue of liability in a civil action against a physician unless, at the time of the testimony, that witness devotes one-half of his professional time to the active clinical practice of medicine. The Celmers respond that the rule should be liberally construed, arguing that a strict interpretation would lead to an unjust result.

{¶ 13} Evid.R. 601 identifies those competent to testify as witnesses, stating:

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

(¶ 15} “ * * *

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Cite This Page — Counsel Stack

Bluebook (online)
114 Ohio St. 3d 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/celmer-v-rodgers-ohio-2007.