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Thomas v. Lude5/31/1990
ROBERT B. HINES, Judge.
Plaintiffs appeal from a directed verdict in favor of defendant on plaintiffs' complaint for dental malpractice. The common pleas court directed the verdict in favor of defendant following the exclusion of plaintiffs' expert testimony as incompetent under Evid.R. 601(D).
Plaintiffs, Bettye Jayne Thomas and Ronald E. Thomas, II, initiated this cause in July 1987, alleging dental malpractice on the part of defendant, Dr. John C. Lude. Plaintiffs alleged that Dr. Lude's treatment and care of Mrs. Thomas was negligent and resulted in certain injuries to her mouth and jaw, some of which were serious and permanent. Plaintiffs sought damages as a result of the alleged injuries.
The matter was set for trial on November 29, 1989, at which time defendant moved the trial court, pursuant to a motion in limine, to exclude the testimony of plaintiffs' expert witness for the reason that the expert was incompetent to testify pursuant to Evid.R. 601(D). Following a review of the transcript of the expert's videotaped deposition testimony, the trial courssustained defendant's motion in limine and ruled that plaintiffs' expert was incompetent under Evid.R. 601(D). Specifically, the trial court determined that the expert's deposition testimony failed to establish that the expert devoted over three-fourths of his professional time to the active clinical practice of dentistry or to its instruction in an accredited university. Since plaintiff had no other expert prepared to testify on the issue of defendant's liability, the trial court directed the verdict in favor of defendant.
Plaintiffs now appeal and set forth the following single assignment of error:
"The trial court erred in finding that defendant John C. Lude, D.D.S. was entitled to judgment as a matter of law."
Plaintiffs essentially contend that the trial court erred in excluding the expert testimony under Evid.R. 601(D) since that rule, by its terms, has no application to a dental malpractice claim. It is plaintiffs' position that because the rule refers to actions against physicians, podiatrists, or hospitals, and because a dentist is statutorily distinct from a physician, the rule of exclusion based on competency set forth in Evid.R. 601(D) has no application to their claim for dental malpractice.
Defendant counters these arguments by contending that Ohio courts have, with few exceptions, applied medical malpractice principles to claims involving dental malpractice. Given this conceptual identity of medical and dental malpractice claims, defendant argues that the trial court's construction of Evid.R. 601(D) is consistent with this general approach. As such, defendant concludes that the directed verdict in his favor was proper.
Evid.R. 601 provides in part:
"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 pediatric 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 to its instruction in an accredited university."
Additionally, at the time this cause was initiated, R.C. 2305.11, which governs the limitations periods for bringing various actions, set forth the followi
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