Price v. Cleveland Clinic Foundation ( 1986 )

I respectfully dissent from the majority's finding appellant's first two assignments of error are meritorious. Appellant's first and second assignments of error dealt with the testimony of Mr. Marsters, appellant's sole liability expert, being rendered incompetent by operation of R.C. 2743.43(A) and Evid. R. 601(D). These sections set forth certain criteria which a person giving expert testimony must meet when testifying on liability issues relative to a medical claim.

The term "medical claim" is defined by R.C. 2305.11(D)(3) as follows:

"[A]ny claim asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care, ortreatment of any person." (Emphasis added.)

The majority of the court argues the present claim is not a medical claim.

The premise of this conclusion is the majority's contention the term "medical claim," as set forth in R.C.2305.11(D)(3), "describes clinical assistance for a patient." The majority then concludes since the blood grouping tests performed on appellant did not constitute clinical assistance, the prerequisites of Evid. R. 601(D) and R.C. 2743.43(A) do not apply to this case. Therefore, the testimony of Mr. Marsters was competent and the trial court's grant of a Civ. R. 50(A)(4) directed verdict for appellees was error.

The error in this argument is two-fold. First, in asserting the present case does not arise "out of the diagnosis, care, or treatment of any person," the majority violates "[a] settled principle of statutory construction * * * that words in a statute are to be given their plain and ordinary meaning, unless it is otherwise clearly indicated." Lake Cty. Natl. Bank ofPainesville v. Kosydar (1973), 36 Ohio St.2d 189, 191, 65 O.O. 2d 404, 406, 305 N.E.2d 799, 801. The plain and ordinary meaning of the term "care," as that term is used in R.C. 2305.11(D)(3), infers the conduct exhibited by Dr. King and Ms. Cylar in the case sub judice. Specifically, the term "care" is defined by Webster's Ninth New Collegiate Dictionary (1983) 207, to include, under a doctor's charge or supervision. In the case sub judice, appellant was under Dr. King's charge and supervision when she submitted to his care and permitted both him and his assistant, Ms. Cylar, to perform the blood grouping tests upon her, interpret the results of such tests, and report such results to the juvenile court. Consequently, appellant's action is a medical claim based upon the plain and ordinary meaning of that term in R.C. 2305.11(D)(3).

Moreover, appellant has previously admitted her claim against appellees is a medical claim. Specifically, paragraph six of the amended complaint sets forth an allegation sounding in a medical claim. Paragraph six states as follows:

"Defendants failed to exercise that degree of care that hospitals and physicians of similar training and in similar communities are required to exercise in like circumstances." (Emphasis added.)

Paragraph ten of the amended complaint is also premised upon a medical claim, as paragraph ten states:

"Defendant Cleveland Clinic by and through its staff and employees and defendant John W. King, individually, were negligent and failed to exercise that degree of ordinary care and skill to its patients in general and plaintiff in particular." (Emphasis added.)

Coupling R.C. 2305.11(D)(3) with the foregoing admissions by appellant, it is clear the claim involved in the case sub judice is a medical claim.

The second shortcoming in the majority's analysis is its assertion the term "medical claim" describes "clinical assistance" for a patient. Not only does the majority trammel the principle of statutory construction as discussed, supra, the court then goes on to interpret the term "medical claim" as describing only "clinical assistance," without any authority in support thereof. If the majority chooses to impose such an unduly restrictive interpretation upon the meaning of "medical claim," and in doing so violates the principle that words in a statute are to be given their plain and ordinary meaning, the majority should at least provide some direct, precedential authority in support thereof. The opinion, however, is absent any such authority. The majority simply chooses to adopt an unsupported belief that the term "medical claim" describes only clinical assistance.

Based upon the principle that words in a statute are to be given their plain and ordinary meaning and due to the majority's failure to support its conclusion that a medical claim is limited to clinical assistance, I am unconvinced by their logic and therefore believe the present action is a medical claim. The competency of an expert witness such as Mr. Marsters is determined by R.C.2743.43(A), which states, in part, as follows:

"(A) No person shall be deemed competent to give expert testimony on the liability issues in a medical claim * * * unless:

"(1) Such person is licensed to practice medicine * * *:

"(2) Such person devotes three-fourths of his professional time to the active clinical practice of medicine * * * or to its instruction in an accredited university." See, also, Evid. R. 601(D).

In the case sub judice, Mr. Marsters was simply not licensed to practice medicine and surgery despite his other qualifications. Therefore, since he failed to comport with the Ohio Legislature's competency requirements relative to an expert witness' testifying in a medical claim, the trial court properly ruled Mr. Marsters' testimony incompetent and properly directed a verdict in favor of appellees.

In light of the foregoing discussion, I would affirm.

Appendix "Assignments of Error "I. Blood grouping tests to determine paternity are not the practice of medicine, thus such tests cannot give rise to a medical claim.

"II. Blood grouping tests to determine paternity do not require any diagnosis, care, or treatment of a person, thus the trial court erred in ruling that the testimony of Roger Marsters, Ph.D. was incompetent.

"III. Whether the trial court erred in granting the defendants' motion to quash notice to take deposition and motion in limine filed on September 10, 1985.

"IV. Whether the trial court erred in its finding that the plaintiff failed to provide competent expert testimony on the issues of liability in the medical claim, if appellant's claim was solely a medical claim within the meaning of Ohio Revised Code Section 2305.11 D 3.

"V. Whether the trial court erred in denying the admission of Exhibits 17, 18, 19.

"VI. Whether the trial court erred in failing to grant appellant's motion for a mistrial where appellees' counsel violated the court's order for a separation of witnesses.

"VII. Whether the trial court erred in directing a verdict for the appellees.

"VIII. Whether the trial court erred in directing a verdict for the appellees on appellant's second cause of action."