POLLY STOECKLEIN, ) Plaintiff, ) ) vs. ) Case No. 00C 307 ) JAMES J. HAMILTON, JR., M.D., ) Defendant. ) _______________________________)
The above captioned matter comes before the court on Defendant's Motion to Strike Plaintiff's Expert Witness. After careful consideration, this court denies defendant's request to strike plaintiff's expert witness.
1. Plaintiff's petition alleges that plaintiff received substandard medical care from defendant "from and after April 8, 1998."
2. Plaintiff has designated Kenneth C. Chessick, M.D., J.D. as an expert witness in this matter.
3. Dr. Chessick is an attorney with his own law firm, "Law Offices of Kenneth Chessick, M.D." Six attorneys work for him. He also has two nurses who work for him on both medical and legal cases.
4. Dr. Chessick received his medical degree in 1968 and his law degree in 1984.
5. His medical and legal affiliations are reflected on a brochure he gives to clients or patients. In the brochure he states: "Our clients have received compensation for injuries in excess of $100,000,000 with dozens of verdicts and/or settlements in excess of $1,000,000. Dr. Chessick has won numerous appeals."
6. Dr. Chessick advertises his law practice in the Yellow Pages in Rockford and Elgin, Illinois.
7. Dr. Chessick's office complex includes two conference rooms and one examining room. He performs outpatient surgery in his office complex.
8. Dr. Chessick testified that all of his medical professional time is "clinical," but has not estimated the percentage of his professional time spent on medical cases.
9. Dr. Chessick estimated that he sees 6 to 10 patients per week in his office, and performs one or two surgical procedures per week. In 2001, through March 22, 2001, he estimated that he had performed 10 to 15 surgeries, and he was in trial for 4 weeks of that time.
10. During the week, Dr. Chessick sees patients approximately three times per week and performs surgery once a week, other than when he is in trial.
11. Dr. Chessick testified that office patients would not equal 50% of his time, but said that he might spend several hours in a surgical procedure.
12. Dr. Chessick stated that in 1995 he spent 35% of his professional time in the practice of medicine, 35% of his professional time in the practice of law, and the remaining 30% of his professional time on a combination of both, indicating that he considers reading cases to provide a basis of knowledge that applies to both medicine and the law.
13. In a magazine article in the spring of 2000, Dr. Chessick estimated he devoted 25% of his professional time exclusively to practicing law, 25% of his time exclusively to practicing medicine, and the remainder of his time (50%) to a combination of the law and medicine but the time frame was not specified.
14. A substantial portion of Dr. Chessick's professional time is spent practicing law. He has been involved as trial or appellate counsel in over 20 reported decisions since 1990.
K.S.A. 60-3412 sets out the requirements to qualify as an expert witness as to standard of care in a medical malpractice case. K.S.A. 60-3412 states:
In any medical malpractice liability action... in which the standard of care given by a practitioner of the healing arts is at issue, no person shall qualify as an expert witness on such issue unless at least 50% of such person's professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed.
Therefore, unless Dr. Chessick devoted at least 50% of his professional time to the "actual clinical practice" of medicine in the two years preceding April 8, 1998, he is not qualified as an expert witness to testify as to standard of care.
The incident in question occurred April 8, 1998. To comply with K.S.A. 60-3412, plaintiff must demonstrate that in the two-year period preceding this incident, April 8, 1996 through April 8, 1998, Dr. Chessick devoted at least 50% of his professional time to actual clinical practice of medicine. In a deposition on March 22, 2001, Dr. Chessick was unable to provide a percentage estimate of the time he spent in the clinical practice of medicine.
Q: For the two years before April 24, 1998, what percentage of your time was spent in the clinical practice of medicine?
A: I can't tell you in terms of percentage because it doesn't work that way in my practice. I practice medicine on a daily basis, and I do things that are medically related all day long. It's just impossible to give you a percentage. All I can tell you is I see patients three times a week, and I operate once a week, generally. I say generally because when I am on trial, I don't.
Q: Well, if you operate one day a week, you're practicing law, I suppose, at least four days a week, is that right?
A: My day always include both. When I'm working on a legal case, then it's law. If I am working on a medical case, it's medicine. I interrupt what I am doing to deal with patients every day. My practice does not limit - it's not of a nature where you can say this is a percentage for this and this is a percentage for that.
Q: Well, give me your best shot.
A: I'm not trying to be evasive. There's just no way to do that because what I do is involved in both areas.
Chessick Deposition, March 22, 2001, pages 51-52.
However, in an affidavit attached to plaintiff's response to the Defendant's Motion to Strike Plaintiff's Expert, Dr. Chessick states under oath that, "[i]n the two years preceding April 8, 1998, the overwhelming majority of my medical practice time was involved in the clinical practice of medicine. My clinical practice is mostly direct patient care, and advising or addressing care of patients. I am defining 'clinical practice' to not include research, administrative or teaching time."
Although this motion is not a motion for summary judgment, this court has determined that defendant must present evidence that Dr. Chessick did not spend 50% of his professional time in actual clinical practice in the two-year period preceding this incident, ie. from April 8, 1996 through April 8, 1998. Most of the evidence that defendant has produced for the purpose of this motion related to periods of time prior to 1996 or after April of 1998. (See Statement of Fact numbers 9, 12, and 13.) In his deposition of March 22, 2001, Dr. Chessick was vague about the percentage of time spent in the clinical practice for the time frame at issue. However, in his affidavit of September 13, 2001, he stated that the overwhelming majority of his medical practice time was involved in the clinical practice of medicine from April, 1996 until April, 1998.
The court, therefore, finds that defendant has not presented sufficient evidence to this court that Dr. Chessick spent less than 50% of his professional time in the actual clinical practice of medicine in this time period and the court denies the Defendant's Motion to Strike Plaintiff's Expert, Kenneth Chessick, M.D., J.D.
This court, however, has not made a determination that Dr. Chessick is qualified as an expert witness for this case.
The issue presented in defendant's motion to strike is determining what "a person's professional time" includes. In the present case, plaintiff's expert, Dr. Chessick, is both a lawyer and a medical doctor. Dr. Chessick has his own law firm and he engages in both the practice of law and the practice of medicine out of the same offices. Defendant argues that the court should consider all of Dr. Chessick's professional time (ie. both the legal and the medical part of his practice) in determining whether 50% of Dr. Chessick's professional time is devoted to actual clinical practice. On the other hand, plaintiff argues that the court should consider only Dr. Chessick's medical profession when determining the percentage of his time spent in the actual clinical practice. Plaintiff further argues that there is no Kansas case that interprets the phrase "professional time" to mean "available work time for a person including professions, jobs, or interests or income producing activities that are outside the practice of medicine."
The plaintiff quotes Wisker v. Hart, 244 Kan. 36, 43-44, 766 P.2d 168 (1988) as follows:
K.S.A. 1987 Supp. 60-3412 is intended to prevent the use of "professional witnesses." That is, practitioners of healing arts who spend less than 50% of their professional time in actual clinical practice in their profession are considered to be "professional witnesses" rather than practitioners of their profession.
Plaintiff contends that Wisker made it clear that the "professional time" to which the statute refers is the professional time of a physician as a physician. However, the issue in Wisker was whether a surgeon could testify as to the standard of care of a general practitioner and vice versa. While the Court in Wisker briefly discussed the legislative intent of K.S.A. 60-3412 which was to prevent the use of "professional witnesses," the Court did not clarify that "professional time" only refers to the professional time of a physician in his profession as a physician.
The most fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs if that intent can be ascertained. State of Kansas v. Gunn, 26 P.3d 710, 718 (2000) (citing City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993)). When a statute is plain and unambiguous, appellate courts will neither speculate as to legislative intent nor read a statute so as to add something not readily found in it. Endorf v. Bohlender, M.D., 26 Kan. App. 2d 855, 901, 995 P.2d 896 (2000) (citing State v. Alires, 21 Kan. App. 2d 139, Syl. P2, 895 P.2d 1267 (1995)). Legislative intent may best be determined from the plain meaning of the words used in the statute in light of all the experience available to the law-making body. Id at 901 (citing Hulme v. Woleslagel, 208 Kan. 385, 391, 493 P.2d 541 (1972).
The plain reading of the statute does not limit "professional time" to a physician's medical profession nor to a single profession. Black's Law Dictionary defines "profession" as "a vocation or occupation requiring special, usually advanced, education and skill; e.g. law or medical professions." Black's Law Dictionary, Fifth Edition (1979). "Professional time" obviously would be time spent on that vocation, occupation or occupations.
The question arises as to whether the legislature intended that all professional time be aggregated in order to calculate the percentage spent in clinical practice or whether the legislature even considered that a physician might also have a second simultaneous career as a lawyer or for that matter as a professional musician or a professional motivational speaker.
The facts of this case, however, don't require the court to determine whether separate and distinct professional time should be aggregated when calculating the percentage of actual clinical time. In the present case, Dr. Chessick has combined the practice of law and the practice of medicine. His professional time, by his own admission, can't be separated into legal professional time and medical professional time. "How do you divide a day that's involved with both things and aren't separate? It's not like I take off one hat and put on another or go to one office or another. I do it all from the same office. I have medical files on my desk. I have legal files on my desk. I get telephone calls continuously from referring doctors, from patients, from pharmacies, from hospitals." Chessick Deposition, March 22, 2001, pages 59-60.
Dr. Chessick clearly cannot extract his medical professional time from his legal professional time. The two are interrelated and intertwined. Dr. Chessick's professional time includes the time practicing both professions and that cumulative time should be used in the calculation of the percentage Dr. Chessick spends in actual clinical practice.
Although the court has denied defendant's motion to strike plaintiff's expert, the issue of whether Dr. Chessick is qualified under the statute as an expert still remains and should be determined prior to trial. The court, therefore, is setting a counsel conference call on December 12, 2001 at 3:00 p.m. to determine a mutually acceptable time to schedule this matter for hearing prior to trial.
The foregoing Memorandum Decision and Order shall serve as the court's order on the Defendant's Motion to Strike Plaintiff's Expert Witness and no further journal entry is required.
IT IS SO ORDERED.
Dated this day of December, 2001.
________________
Nancy Parrish
District Judge, Third Judicial District
I hereby certify that a copy of the above and foregoing MEMORANDUM DECISION AND ORDER was mailed this 6th day of December , 2001, to the following:
Eugene B. Ralston
2913 SW Maupin Lane
Topeka, Kansas 66614
Wayne T. Stratton
Anne M. Kindling
515 South Kansas Avenue
Topeka, Kansas 66603
________________________
Norma J. Dunnaway
Administrative Assistant