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Steele v. Buxton3/23/1994
SHAW, Presiding Judge.
Plaintiff-appellant, William E. Steele, appeals from the judgment of the Common Pleas Court of Crawford County granting summary judgment in favor of defendant-appellee, John A. Buxton, M.D.
The record reveals that on December 12, 1984, Dr. Buxton performed a modified Bassini herniorrhaphy on the appellant. Thereafter, the appellant brought this medical malpractice action against Dr. Buxton alleging that Dr. Buxton negligently performed that surgical procedure. At trial, William C. Manthey, M.D., was to be the appellant's sole medical expert concerning the alleged negligence.
On the morning of the trial, appellee filed a motion in limine to preclude the testimony of Manthey. After allowing counsel to conduct a voir dire examination of Manthey on his qualifications, the trial court held that Manthey was not qualified to testify as an expert witness in this case. At that time, appellant was granted a continuance in order to obtain a qualified expert witness.
After appellant failed to obtain a new expert within that time, the trial court granted appellee's motion for summary judgment on the ground that appellant's expert was not qualified to testify.
Appellant now appeals from the trial court's decision and asserts the following two assignments of error:
"I. The trial court erred by granting defendant-appellee's motion in limine precluding plaintiff-appellant's expert medical witness from testifying upon the issue of surgical malpractice on the grounds that he was not qualified to do so.
"II. The trial court erred by granting defendant-appellee's motion for summary judgment upon the basis that plaintiff-appellant offered no qualified medical expert opinion testimony upon the issue of medical negligence."
Evid.R. 601 governs the competency of witnesses and provides, in pertinent part, as follows:
"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 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 statsmedical 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."(fn1)
Evid.R. 702 permits the use of expert testimony and provides as follows:
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
Where "fields of medicine overlap and more than one type of specialist may perform the treatment, a witness may qualify as an expert even though he does not practice the same specialty as the defendant." Alexander v. Mt. Carmel Med. Ctr. (1978), 56 Ohio St.2d 155, 158, 10 O.O.3d 332, 334, 383 N.E.2d 564, 566. A review of the medical expert cases shows that a nonspecialist is qualified to testify as an expert when he is familiar with the procedure used by the specialist. For example, in King v. LaKamp (1988), 50 Ohio App.3d 84, 553 N.E.2d 701, a physician specializing in orthopedic surgery, including foot surgery, was dee
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