Harnessing the hired guns: the substantive nature of Ohio Revised Code s. 2743.43 under Article IV, section 5(b) of the Ohio Constitution.

• Author: Vrobel, Patrick

1. PART I Introduction II. PART II A. The Professional Standard of Care in Medical Malpractice Litigation B. The Standard of Care for Medical Malpractice in the State of Ohio III. PART III A. The Constitution of Ohio, Article IV, Sec. 5(B) B. The Ohio Rule of Evidence 601(D) C. Ohio Revised Code [section] 2743.43 IV. PART IV A. The Three Fourths Requirement 1. Introduction 2. The Medical Expert Statute as a Supplement to Rule 601 (D) 3. The Distinction Between Substantive and Procedural Rights 4. Substantive Rights Under Article IV, Section 5(B) 5. The Right to a Jury Trial 6. The Right to Access the Courts B. The Same or Substantially Similar Specialty Requirement V. PART V Conclusion I. PART I

   Introduction

   The patient entered the hospital suffering from severe cardiogenic shock. (1) His heart had deteriorated; each breath became a greater labor. Immediate surgery was necessary to repair a ruptured mitral valve (2)--a complicated procedure with the level of physical atrophy.

   For seventeen hours, Dr. Sandu (3) struggled to replace the leaking valve. (4) When these efforts failed, he rushed the patient to another hospital and placed him on an artificial heart. (5) The entire ordeal took twenty-four grueling hours to complete; however, these exertions were in vain. Several days later the patient succumbed to his condition. Dr. Sandu personally offered his condolences to the family. (6)

   A year later, Dr. Sandu opened his mail to discover that he would be embroiled in a very different struggle. The family of the decedent had sued for malpractice. The news shook Dr. Sandu. He had surpassed every conceivable standard of medical care but now found himself fighting for his professional life. "I went through hell," he would say. (7)

   Dr. Sandu soon learned the plaintiff had employed a "hired gun" to support its claim. (8) The expert practiced the barest amount of surgery, enough to maintain an active license. (9) The "hired gun" then devoted the remainder of his practice to selling his testimony to the highest bidder. (10) He knew what he was doing was wrong, and refused to look Dr. Sandu in the eye throughout the trial. (11)

   It immediately became apparent that the "expert" had no idea what he was talking about. (12) The plaintiff had hired a third rate doctor to sustain a spurious claim. According to Dr. Sandu, by the time cross-examination had concluded, the so called expert looked completely incompetent. (13)

   The lawsuit has carved an indelible scar into Dr. Sandu's personal and professional life. It has "left a very bad feeling inside me," he said. "You loose faith in people ... [y]ou become a different person." (14) Prior to the lawsuit, Dr. Sandu "never blinked to take on surgery." (15) Now he hesitates before accepting cases that could expose him to liability. (16)

   The experience of Dr. Sandu is far from unique. A recent Harvard study revealed that "only seventeen percent, or approximately one out of six, of medical malpractice civil actions actually filed [within the test state], appeared to actually involve a negligent injury." (17) Medical malpractice litigation is replete with examples of "hired guns" who testify "not because the statements are an honest, scientific assessment of the case at hand," but because they have been paid enough to make the statement. (18) For some doctors, expert medical testimony "is their business, and their testimony can be bought and paid for." (19)

   The issue is exacerbated because many of these alleged experts no longer actively practice medicine (20) and frequently testify in arenas far from their areas of expertise. (21) The consequence is that a statement of opinion gets presented as fact to a jury which has no way of knowing that it is contrary to any scientific or medical standard. (22) This paid testimony furnishes a breeding ground for frivolous lawsuits and nurtures the expanding malpractice crisis.

   Ohio attempted to solve this problem with the passage of Ohio Revised Code section 2743.43, (23) hereinafter referred to as the "medical expert statute." The legislation fundamentally alters Ohio rules governing medical expert testimony in two essential ways. First, the law requires that an expert dedicate "three-fourths of [his or her] time to the active practice of medicine or surgery." (24) Second, the law mandates an expert practice "in the same or substantially similar [medical] specialty as the defendant" in order to be considered competent to testify against him. (25)

   These legislative enactments appear to clash with Ohio Rules of Evidence regarding the competency of expert witnesses, which requires that medical experts devote only one-half of their time to active clinical practice. (26) At first glance, the statute appears to violate the Ohio Constitution, which provides the Ohio Supreme Court with the sole power to promulgate rules of evidence and court procedure. (27) However, this assessment is incorrect. The same Constitutional provision empowering the Supreme Court to promulgate rules of procedure prohibits the Court from creating rules that infringe upon substantive rights. (28) Rules governing the competency of medical experts inherently impact substantive rights in two major ways. First, they impact the right to a trial by jury. (29) Second, these rules infringe upon the right to access a court of law. (30) As a result, the Rule of Evidence impermissibly infringes upon substantive rights in violation of Ohio Constitutional limitations on rules of practice and procedure. (31) Furthermore, even if the evidentiary rule governing medical experts is not nullified, certain provisions of the medical expert statute are still valid as acceptable extensions to the rules of court procedure. (32)

   This article will explore the constitutionality of Ohio Revised Code section 2743.43 in light of the Ohio Rules of Evidence. Part I introduces the medical expert issue in the state of Ohio. Part II will be divided into two sections. Section A explains the standard of care for malpractice claims that requires an expert medical explanation. Section B provides background on the evolution of the standard of care in the state of Ohio. Part III will be divided into three sections. Section A explores the Ohio Constitution, Article IV, Section 5(B). Section B explores the Ohio Rules of Evidence. Finally, Section C explores Ohio Revised Code section 2743.43. Part IV will be divided into two sections examining the constitutionality of the Ohio Rules of Evidence, ultimately arguing that the Ohio statutory provision must control because rules of evidence regulating the competency of medical experts impermissibly infringe upon the substantive rights of tort victims. Section A addresses the three-fourths requirement of Ohio Revised Code section 2743.43 and is divided into five subparts that examine the substantive nature of rules governing medical experts. Section B addresses the same or substantially the same clause of the Revised Code section 2743.43. Part V will conclude the article.

2. PART II

   1. The Professional Standard of Care in Medical Malpractice Litigation

      Medical malpractice is a specialized branch of the negligence tree. (33) Under this branch, physicians are not held to the standard of the reasonably prudent person. (34) Medical professionals cannot be held to this standard "because the profession of medicine ... has a very distinct and separate body of knowledge that is considered beyond the grasp of the average 'reasonable person.'" (35) Instead, doctors are required to employ "the knowledge, skill and care ordinarily possessed by members of the profession in good standing" (36) in a similar practice and under similar circumstances. (37) Simply put, this professional standard of care requires "what is customary and usual" within the practice of medicine. (38)

      Because the applicable standard relies so heavily on custom, the medical profession has the privilege of "setting [its] own legal standards of conduct, merely by adopting [its] own practices," a privilege "emphatically denied to other groups." (39) The rationale for this concession is "the layman's ignorance of medical matters and the necessity of expert testimony" (40) to explain it. Because doctors obtain a highly specialized subset of knowledge, an expert is essential to explain the appropriate standard of care. (41) A medical malpractice claim cannot be pursued without this expert. (42)

      This standard does not mean that a doctor is required to be perfect. (43) It does not even mean that a doctor must be average. (44) Rather, a doctor is judged only against members of the medical community who are in good professional standing. Of these members, only "the minimum common skill [... is] looked to." (45) If a doctor has achieved a special degree of skill, however, the standard will be the skill possessed by members of that specialty. (46) On the other end of the spectrum, there is not a similar rule for neophytes to the medical profession. (47) A "hospital ... [is] obliged to provide physicians who ... meet that standard" (48) of care found throughout the medical community. The standard is always a floor, never a ceiling. (49)

      Traditionally, courts made allowances for the "type of community in which the physician carrie[d] on his practice ... [A] country doctor would not be expected to have the equipment, facilities, libraries, contacts opportunities for learning, or experience afforded large cities." (50) In effect, the rule disqualified those experts who could not demonstrate a familiarity "with the standard of care in the relevant locality." (51) With the advent of electronic communication, advances in medical procedures have been placed at the fingertips of even the most pioneering physician. As a result, most courts have "abandon[ed] a fixed locality rule in favor of treating the community as merely one factor" in determining the standard of care. (52) Still other jurisdictions have abandoned the locality...