Johnson v. Abdullah (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Johnson v. Abdullah, Slip Opinion No. 2021-Ohio-3304.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2021-OHIO-3304

JOHNSON ET AL., APPELLEES, v. ABDULLAH, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Johnson v. Abdullah, Slip Opinion No. 2021-Ohio-3304.]

Evid.R. 601—Expert testimony in medical-malpractice case—A physician

employed in an executive position who does not directly oversee physicians

who treat patients does not satisfy the active-clinical-practice requirement

of Evid.R. 601.

(No. 2020-0303—Submitted March 30, 2021—Decided September 22, 2021.)

APPEAL from the Court of Appeals for Hamilton County, No. C-180309,

2019-Ohio-4861.

__________________

FISCHER, J.

{¶ 1} In this case, we are asked to consider what constitutes “active clinical

practice” as that term is used in Evid.R. 601(B)(5). In accordance with the plain

language of that rule, we hold that a physician employed in an executive position

SUPREME COURT OF OHIO

who does not directly oversee physicians who treat patients does not satisfy the

active-clinical-practice requirement of Evid.R. 601.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} Appellees, Mark Johnson (acting both in his individual capacity and

in his capacity as a guardian of his brother, David Johnson) and two of his

siblings—Glenda Johnson and Gary Johnson—filed a medical-malpractice suit.

(For ease of discussion, we will refer to appellees collectively as “Johnson.”) The

allegation in the complaint that is relevant to this decision is Johnson’s allegation

that appellant, Dr. Anthony Abdullah, was negligent in his treatment of David in

2011.

{¶ 3} During the trial, Abdullah called Dr. Ron Walls to testify as an expert

regarding the standard of care. Johnson had sought to prevent Walls from testifying

on the basis that Walls failed to satisfy the requirements of Evid.R. 601 because he

was not involved in the active clinical practice of medicine. After counsel

conducted voir dire of Walls, the trial court determined that he was competent to

testify. The jury found that Abdullah had not been negligent in treating David.

{¶ 4} Johnson raised numerous assignments of error on appeal. In its

decision reversing and remanding the case for a new trial, the First District Court

of Appeals addressed only Johnson’s assignment of error challenging the trial

court’s decision to admit the expert testimony of Walls. 2019-Ohio-4861, 136

N.E.3d 581, ¶ 33. In beginning its analysis, the court stated that Ohio courts have

sometimes struggled to apply the active-clinical-practice requirement of Evid.R.

601. Id. at ¶ 1. The court noted that Walls was the chief operating officer (“COO”)

of a hospital system. Id. at ¶ 2. Although Walls had testified that everything he did

in his role as COO had an effect on patient care, the First District concluded that

Walls’s job was “almost entirely administrative.” Id. The court reasoned that if

Walls’s activities constituted the active clinical practice of medicine, then

nonphysician COOs would also be engaged in the active clinical practice of

2

January Term, 2021

medicine. Id. Considering this conclusion antithetical to Evid.R. 601, the court

rejected Abdullah’s argument that Walls was engaged in the active clinical practice

of medicine, despite Walls’s being an accomplished doctor. Id. at ¶ 2-3.

Concluding that the plain language of Evid.R. 601 should have prevented Walls

from testifying and that the trial court’s decision permitting Walls’s testimony was

not harmless error, the court reversed the trial court’s judgment and remanded the

case for a new trial. Id. at ¶ 3, 32.

{¶ 5} We accepted jurisdiction over Abdullah’s appeal, in which he set forth

a single proposition of law: “When reviewing a trial court’s decision on a

witness’[s] competence, an appellate court is not free to weigh in on the credibility

of that witness and substitute its own judgment for that of the trial court.” See 158

Ohio St.3d 1511, 2020-Ohio-2815, 144 N.E.3d 462.

II. ANALYSIS

{¶ 6} In his proposition of law, and throughout much of his argument before

this court, Abdullah asserts that the First District improperly reweighed Walls’s

credibility. He maintains that in reversing the trial court’s judgment, the appellate

court rejected the trial court’s finding that Walls’s testimony was credible and

substituted its own determination that Walls was not telling the truth. It is well-

settled that the responsibility of weighing the credibility of a witness rests with the

fact-finder. See, e.g., State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

paragraph one of the syllabus. The First District did not violate this principle. It

accepted Walls’s descriptions of his professional duties, activities, and

responsibilities. E.g., 2019-Ohio-4861, 136 N.E.3d 581, at ¶ 21. In reversing the

trial court’s judgment, the First District did not find Walls’s testimony to be

untruthful; instead, the court concluded, based on Walls’s testimony, that Abdullah

had failed to establish that Walls devoted at least one-half of his professional time

to the active clinical practice of medicine. Id. at ¶ 24.

3

SUPREME COURT OF OHIO

{¶ 7} Although Walls testified that he did meet this standard, neither the

First District nor this court is required to accept Walls’s determination that his

professional duties satisfied the definition of the legal term “active clinical

practice.” See State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d

1245, ¶ 25 (explaining that appellate courts apply the law to the facts of individual

cases to make legal determinations and that just because “facts are involved in the

analysis does not make the issue a question of fact deserving of deference to a trial

court”). In such instances, the appellate court must independently determine,

without deference to the trial court’s conclusion, whether the facts satisfy the

applicable legal standard. Id. at ¶ 26, citing State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Indeed, no court should abdicate its duty to

interpret the law to anyone, including an expert witness. Because this case turns on

whether at least 50 percent of Walls’s professional time was devoted to the active

clinical practice of medicine as that term is used in Evid.R. 601, our analysis will

focus on determining whether the activities that Walls spent the majority of his

professional time engaged in qualify as the active clinical practice of medicine.

{¶ 8} Abdullah emphasizes that Walls is not a “hired gun” or “professional

witness.” In light of the fact that Walls’s professional role changed in 2015,

Abdullah asserts that pursuant to Celmer v. Rodgers, 114 Ohio St.3d 221, 2007-

Ohio-3697, 871 N.E.2d 557 (plurality opinion), the trial court was permitted to look

at Walls’s activities at the time the alleged malpractice occurred to determine

whether Walls was qualified to testify as an expert witness at trial. Abdullah asserts

that based on the evidence in the record, 75 percent of Walls’s professional time

prior to 2015 was devoted to the active clinical practice of medicine or its

instruction. Looking at the period after 2015 (the trial occurred in 2017), Abdullah

asserts that Walls’s testimony—particularly Walls’s assertion that “[e]verything

that happens related to patient care in [the] hospital is [his] direct responsibility”—

establishes that Walls was engaged in the active clinical practice of medicine.

4

January Term, 2021

{¶ 9} Johnson responds that Walls was not competent to testify under

Evid.R. 601, because the evidence in the record shows that prior to 2015, Walls

devoted the majority of his professional time to administrative matters and medical-

legal consulting work and that after 2015, Walls devoted 90 percent of his time to

administrative and executive matters.

{¶ 10} The parties do not dispute the substance of Walls’s testimony

regarding the specific duties and responsibilities he had prior to and after 2015.

Each accepts that testimony at face value, with the differences between the parties’

positions essentially consisting of differing views on whether those duties and

responsibilities may be characterized as the active clinical practice of medicine

under Evid.R. 601.

{¶ 11} Evid.R. 601(B) provides in relevant part that a person is disqualified

to testify as a witness when the court determines that the person is

(5) * * * giving expert testimony on the issue of liability in

any medical claim, as defined in R.C. 2305.113, asserted in any civil

action against a physician, podiatrist, or hospital arising out of the

diagnosis, care, or treatment of any person by a physician or

podiatrist, unless:

***

(b) The person devotes 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.

(Emphasis added.) Evid.R. 601 was amended in 2020 and 2021 (while this case

was pending), and the amendments caused this provision to be renumbered from

Evid.R. 601(D) to Evid.R. 601(B)(5). The amendments did not substantively

5

SUPREME COURT OF OHIO

change the relevant provision. For the purposes of this analysis, we will refer to

the provision by its current section.

A. An overview of our decisions addressing the active-clinical-practice

requirement

{¶ 12} Before addressing to what extent Walls was engaged in the active

clinical practice of medicine under Evid.R. 601, we will briefly review our previous

decisions addressing the active-clinical-practice requirement.

1. McCrory v. State

{¶ 13} The seminal case in this area is McCrory v. State, 67 Ohio St.2d 99,

423 N.E.2d 156 (1981). In that case, we held that “active clinical practice” includes

“work [that] is so related or adjunctive to patient care as to be necessarily included

in that definition for the purpose of determining fault or liability in a medical

claim.” Id. at syllabus.

{¶ 14} In McCrory, in which we interpreted a statutory precursor to the

current Evid.R. 601, we began our analysis by noting that the relevant statute (like

the current rule) did not define the term “active clinical practice.” Id. at 103. We

explained that “the statute deals with the basic unfairness of permitting the pointing

of accusatory fingers by those who do not take care of the sick toward those who

do.” Id. We added that

the purpose of the statute is to preclude testimony by the physician

who earns his living or spends much of his time testifying against

his fellows as a professional witness, and to prevent those whose

lack of experiential background in the very field they seek to judge,

the clinical practitioner, makes the validity of their opinions suspect,

from expressing those opinions for pay or otherwise.

6

January Term, 2021

Id. In analyzing the term “active clinical practice,” we cautioned that “we must

devise a definition of active clinical practice of medicine that is not so narrow as to

include only the physician who is in direct contact with the patient at his bedside,”

because to do so “would exclude the large panoply of medical expertise of various

physician-specialists who work daily in and for our hospitals often assisting,

directing, or advising the attending physician in his care of the sick.” Id. We

explained that the definition of “active clinical practice” must include the work of

doctors “directly involved in the care of the patient,” because those doctors’

“ministrations form inseparable parts of that patient’s care” and their expertise is

necessary to determine any fault or responsibility. Id. Thus, we concluded that

“active clinical practice” necessarily includes the work typical of pathologists,

radiologists, hematologists. Id. at 104.

2. Celmer v. Rodgers

{¶ 15} Approximately 25 years after McCrory, 67 Ohio St.2d 99, 423

N.E.2d 156, was decided, and after the active-clinical-practice requirement had

been incorporated into Evid.R. 601, we revisited the issue of what satisfies the

active-clinical-practice requirement. Celmer, 114 Ohio St.3d 221, 2007-Ohio-

3697, 871 N.E.2d 557 (plurality opinion). In Celmer, a trial that was scheduled to

start was continued at the request of the defense and was then stayed due to the

insolvency of a defendant’s insurance carrier. Id. at ¶ 2. As a result of the delays,

the trial took place more than two years after the originally scheduled trial date, and

at that time, the plaintiff’s expert witness no longer devoted at least one-half of his

professional time to the active clinical practice of medicine. Id. The specific issue

before the court was whether under those circumstances a trial court may permit

that witness to testify as an expert. Id.

{¶ 16} In Celmer, a plurality of the court emphasized that the McCrory

court had rejected a narrow interpretation of the active-clinical-practice

requirement and had explained that the purpose of the requirement is to preclude

7

SUPREME COURT OF OHIO

testimony by a physician who spends much of his or her time testifying as a

“professional witness” and to prevent expert testimony by physicians who lack an

experiential background in the area at issue in a case. Celmer at ¶ 21, citing

McCrory at 104. The plurality further explained that the preliminary questions

concerning the qualification of a person to be a witness “ ‘shall be determined by

the [trial] court.’ ” (Emphasis added in Celmer deleted.) Celmer at ¶ 24, quoting

Evid.R. 104(A).

{¶ 17} Unlike McCrory, Celmer did not turn on whether the expert

witness’s professional activities constituted the active clinical practice of medicine.

Instead, the key issue was whether a trial court has discretion to permit a party’s

medical expert to testify as an expert when the expert does not satisfy the

requirements of Evid.R. 601 at the time the trial takes place but did satisfy the

requirements at the time the trial was originally scheduled to start, the trial having

been delayed at the request of the opposing party. Celmer at ¶ 2. The Celmer

plurality noted that the active-clinical-practice requirement of Evid.R. 601 is

written in the present tense. Id. at ¶ 25. Nevertheless, the plurality found it

appropriate in that case to apply an exception to the rule’s present-tense language:

“[The present-tense language] * * * does not preclude a trial court from exercising

discretion in an appropriate case to determine that a physician is competent to

testify, as in this case, where the witness would have qualified as an expert but for

defense continuances and a stay of proceedings resulting from the insolvency of a

defendant’s carrier.” Id. The plurality emphasized that “[g]enerally, an expert

witness in a medical malpractice action must meet the requirements of Evid.R.

601[(B)(5)(b)] at the time the testimony is offered at trial.” Id. at ¶ 27. “But,” it

stated, “the facts here are an exception to that general rule.” Id.

{¶ 18} In a dissent, Justice Robert Cupp emphasized that the active-clinical-

practice requirement is written in the present tense. Id., 114 Ohio St.3d 221, 2007-

Ohio-3697, 871 N.E.2d 557, at ¶ 34 (Cupp, J., dissenting). He concluded that no

8

January Term, 2021

judicially created exception should override the plain language of the rule. Id. at

¶ 37 (Cupp, J., dissenting). Because the trial court’s decision allowing the expert

to testify was contrary to what Justice Cupp viewed to be the plain language of the

rule, he concluded that the trial court’s ruling constituted an abuse of its discretion.

Id.

B. We decline to expand the Celmer exception

{¶ 19} The first question before us in analyzing the present case is which

period of time to look at in determining whether Walls was engaged in the active

clinical practice of medicine. Abdullah asks us to expand the Celmer exception to

allow a court to consider the expert’s job duties at the time of the alleged

malpractice. If we do not expand the Celmer exception, we focus on the time of

trial, i.e., the time when Walls testified.

{¶ 20} We decline to expand the Celmer exception. As the Celmer plurality

explained, the general rule is that the witness must meet the active-clinical-practice

requirement of Evid.R. 601 at the time the testimony is offered at trial. Id., 114

Ohio St.3d 221, 2007-Ohio-3697, 871 N.E.2d 557, at ¶ 27 (plurality opinion).

Celmer sets forth a limited exception to that rule, and the exception is clearly

confined to the particular facts of that case.

{¶ 21} Abdullah relies on the timeline of this case in asserting that this court

should look at Walls’s pretrial activities in determining Walls’s competency.

According to Abdullah, Johnson filed the original complaint in 2012, Walls was

first identified as an expert witness in 2013, and Johnson voluntarily dismissed the

case in 2014. In January 2015, Walls took on the role of COO (the same role that

he was in at the time of trial). Johnson refiled the case in April 2015, and the trial

occurred in 2017.

{¶ 22} These facts are significantly different from the facts of Celmer.

Again, in Celmer, the court created a limited exception to allow for consideration

of the witness’s activities at the time the trial was originally scheduled to begin.

9

SUPREME COURT OF OHIO

Here, Abdullah asks us to extend that exception to consider a witness’s activities

not only before the original trial date, but before the case was even filed in its

current incarnation.

{¶ 23} It is an unfortunate reality that medical-malpractice actions often

proceed at a snail’s pace. Abdullah has not demonstrated that Johnson acted with

the intention of stalling until Walls was not competent to testify under the rule.

Moreover, Abdullah had ample time after the complaint was refiled to find a

witness who was qualified under the rule. If we were to extend the Celmer

exception to permit the expert’s testimony in this case, we would in effect be

rewriting the plain language of Evid.R. 601, which states that the witness must

presently be engaged in the active clinical practice of medicine.

{¶ 24} For these reasons, we limit Celmer to its facts, and we instead apply

the general rule identified in that case: the witness must meet the active-clinical-

practice requirement of Evid.R. 601 at the time the testimony is offered at trial. We

accordingly decline to consider Walls’s activities prior to 2015.

C. Walls did not satisfy Evid.R. 601’s active-clinical-practice

requirement at the time of trial

{¶ 25} This brings us to the key issue in this case: Did Walls satisfy Evid.R.

601’s active-clinical-practice requirement at the time of trial? Under McCrory, we

should not read the requirement so narrowly that it precludes the testimony of a

physician who does not directly treat patients but still acts in a role that is adjunctive

to patient care. Id., 67 Ohio St.2d at 103-104, 423 N.E.2d 156.

{¶ 26} The evidence in this case indicates that Walls did not act in a role

adjunctive to patient care. Walls initially testified, “[P]robably 90 percent of my

work would be characterized as purely executive or administrative.” As part of this

executive or administrative work, Walls testified, he is “responsible for all of the

teaching and training programs in the hospital” and that he is responsible for “[a]ll

of the quality and safety related to patient care” and “[a]ll of the clinical operations

10

January Term, 2021

related to patient care, including the operating rooms, all of the inpatient units, the

emergency department, [and] post-operative recovery areas.” He testified:

I’m responsible for the introduction of new innovations and

technology into the hospital, new programs and quality assessment,

I mean safety and quality for the patients, and the teaching programs

that train residents and students in medicine, and programs that train

our future leaders in quality, safety, and how to provide excellent

patient care.

{¶ 27} Regarding his professional time that is not executive or

administrative related, Walls testified that he devotes one hour a week to making

hospital rounds with the hospital’s chief nurse, which consists of visiting with

residents and nurses who deliver direct patient care. He also testified that he holds

mentoring sessions with faculty “about their research and career development,” but

he noted that these mentoring sessions do not take up “a huge amount” of his time.

{¶ 28} In trying to establish that Walls served in a role that was adjunctive

to patient care, Abdullah relies on Walls’s testimony that “all [of his] administrative

work, with a very tiny exception, is directly related to patient care.” But in

following up that statement, in response to the question whether his role was “so

adjunctive to patient care as to practically constitute clinical practice in and of

itself,” Walls said, “I would say it directly influences our organization.” Walls

disagreed with the attorney’s assertion that what Walls does “really doesn’t

constitute clinical practice” and said: “Virtually everything I do in my day, in my

week, in my month, how I plan, has a direct influence on patient care,” and “I’m

influencing the care every single day of thousands of * * * people.” As examples,

he stated that he is responsible for making sure that the hospital is adequately

staffed and that hospital staff has the proper technology to treat patients. He

11

SUPREME COURT OF OHIO

summed up his voir dire testimony by stating, “I have * * * a direct role every day

in mentoring and guiding our department chairs, our clinical nurse leaders. I run

the entire quality and safety programs, the education programs. Everything that

happens related to patient care in our hospital is my direct responsibility.”

{¶ 29} The proponent of expert testimony bears the burden of showing that

the expert is qualified to testify competently regarding the issue at hand. See United

States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004). In this case, Abdullah failed

to show that Walls was engaged in the active clinical practice of medicine at the

time of trial. Walls was a true executive. Notably, Walls did not testify that he

directly supervised any of the physicians at the hospital who treated patients.

Instead, he ensured that the hospital was running properly. At best, Walls indirectly

supervised doctors, as he emphasized that he mentored and guided the hospital’s

department chairs and clinical-nurse leaders. His testimony indicates that he was

not involved in supervising doctors who were treating patients but that his day-to-

day contact was primarily with the hospital’s management personnel.

{¶ 30} While it may be true that everything that Walls did had an impact on

the hospital’s overriding mission of treating patients, Walls did not interact with

the physicians who were treating patients. While Walls’s role was vital and

essential to the hospital, he was not engaged in the active practice of medicine or

in a role adjunctive to patient care.

{¶ 31} We further note that time spent teaching may be used to qualify

under Evid.R. 601. Evid.R. 601 provides that in order to qualify as a witness, a

person must 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.” (Emphasis added.) Walls testified that he teaches an hour-long classroom

session once every three or four months. Given the limited amount of time that

Walls devoted to the instruction of medicine, we conclude that even when Walls’s

12

January Term, 2021

teaching responsibilities are taken into account, he was not qualified to testify under

Evid.R. 601.

{¶ 32} Just as we decline to extend the Celmer exception, we decline to

extend McCrory to hold that “active clinical practice” of medicine as that term is

used in Evid.R. 601(B)(5)(b) includes the primarily executive work of a doctor in

an administrative role. We accordingly hold that a physician employed in an

executive position who does not directly oversee physicians engaged in treating

patients does not satisfy the active-clinical-practice requirement of Evid.R. 601.

{¶ 33} Applying that holding to this case, we conclude that the trial court

committed reversible error in permitting Walls to testify as an expert. Abdullah

asks us to apply the traditional abuse-of-discretion standard in reviewing this case

and to determine whether the trial court’s decision was arbitrary, unreasonable, or

unconscionable. The abuse-of-discretion standard, however, does not neatly apply

to a case like this—i.e., a case in which the trial court relied on an erroneous

conception of the active-clinical-practice requirement of Evid.R. 601.

{¶ 34} We have stated that “[a]n abuse of discretion is more than an error

of law or judgment; it implies that the trial court’s attitude, in reaching its decision,

was arbitrary, unreasonable, or unconscionable.” See, e.g., Celmer, 114 Ohio St.3d

221, 2007-Ohio-3697, 871 N.E.2d 557, at ¶ 19 (plurality opinion), citing Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). However, it has

been noted by at least one Ohio appellate court that this is an “offensive

formulation.” State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, 932 N.E.2d

345, ¶ 17 (2d Dist.). As the Second District detailed in Boles, the notion that an

abuse of discretion is more than an error of law can be traced back to a 1940

decision of this court, Steiner v. Custer, 137 Ohio St. 448, 31 N.E.2d 855 (1940).

Boles at ¶ 17. In Steiner, the court relied upon the second edition of Black’s Law

Dictionary as support for its statement that “[t]he meaning of the term ‘abuse of

discretion’ in relation to [the granting of a motion for a new trial] connotes

13

SUPREME COURT OF OHIO

something more than an error of law or judgment.” Steiner at 451. The Steiner

court, however, did not quote the Black’s Law Dictionary definition in its decision.

It did, however, quote a Massachusetts Supreme Court decision in stating that

“[s]uch term has been defined as ‘a view or action “that no conscientious judge,

acting intelligently, could honestly have taken.” ’ ” Steiner, quoting Long v.

George, 296 Mass. 574, 579, 7 N.E.2d 149 (1937), quoting Davis v. Boston

Elevated Ry. Co., 235 Mass. 482, 502, 126 N.E. 841 (1920).

{¶ 35} In fact, the second edition of Black’s Law Dictionary, which the

court relied upon in Steiner, does not support the court’s statement that an abuse of

discretion connotes something more than an error of law:

This term, commonly employed to justify an interference by a

higher court with the exercise of discretionary power by a lower

court, implies not merely error of judgment, but perversity of will,

passion, prejudice, partiality, or moral delinquency. The exercise of

an honest judgment, however erroneous it may appear to be, is not

an abuse of discretion.

(Emphasis added.) Black’s Law Dictionary 11 (2d Ed.1910). Clearly absent from

this definition is any indication that the abuse-of-discretion standard applies when

a court is making a determination of law. Indeed, this definition squares with the

common understanding of what constitutes an abuse of discretion: a court

exercising its judgment, in an unwarranted way, in regard to a matter over which it

has discretionary authority.

{¶ 36} It bears noting that the holding of Steiner focused on a specific

application of the term “abuse of discretion”: “The meaning of the term ‘abuse of

discretion’ in relation to the granting of a motion for a new trial connotes more than

an error of law or of judgment; it implies an unreasonable, arbitrary or

14

January Term, 2021

unconscionable attitude on the part of the court.” Steiner at paragraph two of the

syllabus. That conclusion was grounded in the context of a motion for a new trial,

with the court stating that “the granting or refusing of a motion for a new trial rests

largely in the sound discretion of the trial court.” Id. at 451. Thus, Steiner should

not be read as applying to questions that are not within “the sound discretion” of a

trial court.

{¶ 37} This court made that point clear in Rohde v. Farmer, 23 Ohio St.2d

82, 262 N.E.2d 685 (1970). In that decision, the court explained, “The concept of

‘abuse of discretion’ as the basis for determining ‘error’ of the trial court connotes

the right to exercise a sound discretion. Conversely, where a specific action, ruling

or order of the court is required as a matter of law, involving no discretion, the test

of ‘abuse of discretion’ should have no application.” Id. at 89. The Rohde court

accordingly held that “[w]here a new trial is granted by a trial court, for reasons

which involve no exercise of discretion but only a decision on a question of law,

the order granting a new trial may be reversed upon the basis of a showing that the

decision was erroneous as a matter of law.” Id. at paragraph two of the syllabus.

{¶ 38} As the Second District stated in Boles, “No court—not a trial court,

not an appellate court, nor even a supreme court—has the authority, within its

discretion, to commit an error of law.” Boles at ¶ 26. This should be axiomatic: a

court does not have discretion to misapply the law. A court has discretion to settle

factual disputes or to manage its docket, for example, but it does not have discretion

to apply the law incorrectly. That is why courts apply a de novo standard when

reviewing issues of law. See, e.g., Hudson v. Petrosurance, Inc., 127 Ohio St.3d

54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 30.

{¶ 39} We take this opportunity to make it clear that courts lack the

discretion to make errors of law, particularly when the trial court’s decision goes

against the plain language of a statute or rule. In this case, the First District

correctly determined that a physician employed in an executive position who does

15

SUPREME COURT OF OHIO

not directly oversee physicians engaged in treating patients does not satisfy the

plain language of the active-clinical-practice requirement of Evid.R. 601. Because

the trial court committed an error of law in determining otherwise, and because the

error was not harmless, see 2019-Ohio-4861, 136 N.E.3d 581, at ¶ 30-32, we affirm

the First District’s judgment.

{¶ 40} As the First District noted in its decision, this result may not be ideal,

given that Walls’s credentials would seem to make him well suited to testify in this

case. 2019-Ohio-4861, 136 N.E.3d 581, at ¶ 24. Nevertheless, to hold otherwise

would be contrary to Evid.R. 601 and would elevate its perceived purpose above

its actual text. Being an executive far removed from treating patients does not

qualify as engaging in the active clinical practice of medicine. If Ohio’s Rules of

Evidence should allow doctors who work in positions such as Walls’s to testify as

experts in cases like this, then the rule must be amended through the proper rule-

amendment process. We should not amend the rule by misinterpreting its plain

language.

{¶ 41} As a final note, we acknowledge that a large portion of Johnson’s

merit brief is dedicated to issues that are unrelated to the proposition of law

accepted for review by this court and are not properly before this court in this

appeal. Because the additional issues raised by Johnson were not addressed by the

First District below and are beyond the scope of the proposition of law accepted for

review in this appeal, we decline to address them.

III. CONCLUSION

{¶ 42} We hold that a physician employed in an executive position who

does not directly oversee physicians who treat patients does not satisfy the active-

clinical-practice requirement of Evid.R. 601. Because Walls did not satisfy the

active-clinical-practice requirement of the rule, we affirm the decision of the First

District.

Judgment affirmed.

16

January Term, 2021

O’CONNOR, C.J., and KENNEDY, DEWINE, DONNELLY, and BRUNNER, JJ.,

concur.

STEWART, J., concurs in judgment only.

_________________

Brannon & Associates, Dwight D. Brannon, and Kevin A. Bowman, for

appellees.

Arnold Todaro Welch & Foliano Co., L.P.A., John B. Welch, and Gregory

B. Foliano, for appellant.

_________________

17