Levin v. Hardwig ( 1979 )

Per Curiam.

Appellant’s appeal is grounded on the proposition that the Court of Appeals erred in concluding that appellee’s expert medical witness, Dr. Hoffman, was competent to testify under the purported standards set forth for such testimony under R. C. 2743.43 (A) (2).¹

R. C. 2743.43 provides:

“(A) No person shall be deemed competent to give expert testimony on the liability issues in a medical daim, as defined in division (D) (3) of section 2305.11 of the Revised Code, unless:

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“(2) Such person devotes three-fourths of his professional time to the active clinical practice of medicine or surgery, osteopathic medicine and surgery, or podiatric medicine and surgery, or to its instruction in an accredited university.”

The evidence adduced at trial during Dr. Hoffman’s voir dire demonstrates that he devotes the entirety of his professional time to his practice at the Veterans Administration, where he is paid to examine and to diagnose patients for the disability adjudication board. Dr. Hoffman’s findings are thereafter employed by the board to determine the extent of a patient’s disability. In addition to the diagnostic function performed by Dr. Hoffman, he also refers his patients to other physicians and makes recommendations as to the proper course of treatment for those patients. In his practice, Dr. Hoffman consults with other physicians with regard to these patients.

Under such circumstances, we are of the view that Dr. Hoffman is engaged in the “active clinical practice of medicine,”² within the meaning of R. C. 2743.43 (A) (2), and is not barred from testifying by the operation of that statute.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Celebrezze, C. J., Herbert, W. Brown, P. Brown, Locher and Holmes, JJ., concur. Lynch, J., dissents. Lynch, J., of the Seventh Appellate District, sitting for Sweeney, J.

1 Our holding in this cause in no manner addresses whether R. C. 2743.43 is a constitutional infringement of this court’s power under Section 5 (B) of Article IV of the Constitution of Ohio to prescribe rules governing the practice and procedure in the courts of the state, or, “whether the passage of such procedural statutes violates the Separation of Powers doctrine by unreasonably infringing upon the inherent power of the judicial branch of state government.” Denicola v. Providence Hospital (1979), 57 Ohio St. 2d 115, 120, 387 N.E. 2d 231, at fn. 4. It is well settled that constitutional issues which are not raised by the parties will ordinarily not be decided by this court. Moats v. Metropolitan Bank of Lima (1974), 40 Ohio St. 2d 47, 319 N.E. 2d 603; State v. Phillips (1971), 27 Ohio St. 2d 294, 272 N.E. 2d 347.

2 The General Assembly has not defined “clinical practice” as used in R. C. 2743.43 (A) (2). By way of reference, we note that N. Y. Consol. Laws, Education Law, Section 385-b (a) has defined the term as:

“ * * *the act of providing any form of medical and health care, including patient consultations, and the act of performing clinical investigation involving patients, for which acts a fee for professional services is customarily charged.”