I concur in the judgment and opinion and write separately only because our decision, while legally correct, seems so logically deficient. Perhaps this is but another example of Dickens' conclusion that at times "the law is a ass." More appropriately, in this factual setting, the law "was a ass," as the incongruous result required by the prior version of R.C. 2317.02 has arguably been rectified by the current version of that statute.
As the principal opinion notes, appellee is not prevented by the privilege from calling Dr. Malaya as a witness on direct examination. There are many matters to which the doctor may testify, not the least of which is his expert opinion as to the decedent's competency based upon a series of hypothetical *Page 299 questions, the foundation for which may be provided by lay witnesses. See Vincenzo v. Newhart (1966), 7 Ohio App.2d 97, 36 O.O.2d 213, 219 N.E.2d 212, affirmed (1967), 11 Ohio St.2d 63, 40 O.O.2d 67, 227 N.E.2d 627.