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

 
  I. 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)