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Aldridge v. Garner2/23/2005
at 104. In contrast, a physician who spends 80 percent of his professional time evaluating workers' compensation claims but does not personally examine, diagnose, or treat patients does not satisfy the second requirement of Evid.R. 601(D). See Goldstein v. Kean (1983), 10 Ohio App.3d 255. " he important issue is how closely the purported expert's work is related to patient care." Nicholson v. Landis (Feb. 27, 1990), Athens App. No. 1404.
{ } The "active" component of the clinical-practice requirement also affords the court some flexibility. Although Evid.R. 601(D) and its statutory counterpart, R.C. 2743.43, use the present tense, "the standard is more directly concerned with the past. The essential inquiry made in the test is retrospective: has that witness acquired that special experience * * * or experiential background * * * in the field he seeks to judge? A literal and strict interpretation of the statute focusing only on the present ignores the historical nature of the inquiry and the true purpose of the statute. It might even permit the testimony of a novice currently in practice yet exclude the testimony of an experienced clinical practitioner who is not. It would not serve the purposes of the statute or the ends of justice to exclude the assistance of the experienced specialist whose clinical practice spanned decades, because he is now retired. The true purpose of the statute is to ensure competency, and a strict application of the text in its literal sense fails to do that." Crosswhite, 64 Ohio App.3dat 178.
{ } In Crosswhite, the plaintiff sought to introduce testimony of his second treating physician, who had since retired. The physician recited in his affidavit that, though he was retired, he had devoted 75 percent of his professional time to clinical practice for 33 years. His 33 years of active clinical practice included all times relevant to the lawsuit. Additionally, the physician had actually treated the plaintiff. The court determined that excluding the expert's testimony would thwart the purpose of Evid.R. 601(D).
{ } Here, Aldridge argues that Dr. Kirwin is competent to testify based upon two theories. First, Aldridge contends that Dr. Kirwin's current work for the insurance companies is so adjunctive to patient care that it must be considered active clinical practice for purposes of Evid.R. 601(D). However, Aldridge does not dispute that Dr. Kirwin does not personally examine, diagnose, or treat patients as part of the 80 percent of his professional time that he spends working for insurance companies. Based on McCrory and Goldstein, we cannot say that Dr. Kirwin's work is so adjunctive to patient care as to render his current practice within the realm of "active clinical practice" as intended by the rule.
{ } Second, Aldridge contends that Dr. Kirwin's 20-plus years of full- time clinical practice render him competent to testify. Dr. Kirwin engaged in full-time clinical practice, wherein he spent 95 percent of his time seeing and treating patients as a family practitioner, until approximately three years prior to his January 2004 deposition. The malpractice that Aldridge alleges occurred in 1998. Thus, Dr. Kirwin was engaged full-time in active clinical practice during the time of Garner's alleged malpractice.
{ } Additionally, Dr. Kirwin testified that Aldridge's case is the first and only case in which he has agreed to testify as an expert witness. Thus, Dr. Kirwin is not a professional witness who earns his living by testifying, like the sort that Evid.R. 601(D) is designed to exclude.
{ } Based upon Dr. Kirwin's length of practice and the fact that Dr. Kirwin was engaged in active clinical practice at all times rele
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