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Aldridge v. Garner2/23/2005
DECISION AND JUDGMENT ENTRY
{ } Sharon Aldridge appeals the decision of the Scioto County Court of Common Pleas granting summary judgment to J. Timothy Garner, M.D. Aldridge contends that the trial court abused its discretion when it granted Garner's motion to exclude the testimony of her expert, Dr. Michael Kirwin. Because the trial court abused its discretion in concluding that Dr. Kirwin is not competent to testify under Evid.R. 601(D), we agree. Accordingly, we reverse the judgment of the trial court and remand this cause for further proceedings consistent with this opinion.
I.
{ } The deceased, Earl E. Aldridge, sought medical treatment from Garner in May 1998, reporting significant weight loss, tiredness, and a chronic cough. Garner did not order a chest x-ray of Mr. Aldridge until August 1998, at which time he discovered that Mr. Aldridge had a malignant tumor in his lung. Mr. Aldridge died on April 24, 1999.
{ } Sharon Aldridge filed an action for medical malpractice against Garner, alleging that Garner deviated from the accepted standard of care in failing to diagnose the deceased with lung cancer. Aldridge identified Dr. Kirwin as her medical expert. Garner filed a motion in limine seeking to exclude Dr. Kirwin's testimony. Additionally, Garner filed a motion for summary judgment.
{ } Garner took Dr. Kirwin's deposition on January 5, 2004. Dr. Kirwin testified that he ended a 20-year career of full-time clinical practice with Hilliard Family Health approximately three years before his deposition. Dr. Kirwin testified that he currently spends 80 percent of his time working for two insurance companies. His responsibilities with the insurance companies require him to review casework, talk to doctors about cases, and discuss those cases with medical insureds to determine whether the insurance companies will pay or deny claims for individual patients. However, he does not see patients or recommend courses of treatment for them in his work for the insurance companies. Dr. Kirwin devotes the remaining 20 percent of his professional time to his family practice and to teaching medical students at Ohio State University.
{ } Garner alleged in his motion in limine that Dr. Kirwin is incompetent to testify as a medical expert pursuant to Evid.R. 601(D). In particular, Garner alleged that Dr. Kirwin does not meet the requirement that an expert devote 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.
{ } The trial court found that because Dr. Kirwin devotes only 20 percent of his professional time to active clinical practice or instruction, he is not competent to testify as to Garner's deviation from the standard of care. Therefore, the trial court sustained Garner's motion to exclude Dr. Kirwin as an expert witness. Because Aldridge did not present any other admissible expert testimony that Garner did not meet the standard of care in treating Mr. Aldridge, the trial court ruled that Garner was entitled to judgment as a matter of law. Therefore, the trial court granted Garner's motion for summary judgment.
{ } Aldridge appeals, asserting the following assignments of error:
"I. The trial court erred in granting defendant's motion in limine when plaintiff's expert witness was competent to testify as an expert witness. II. The trial court erred in granting summary judgment for the defendant when the summary judgment was granted based on the motion in limine."
II.
{ } In her first assignment of error, Aldridge asserts that the trial court abused its discretion whe
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