On April 23, 2013, the Supreme Court of Ohio reversed the decision of the Eleventh District Court of Appeals and applied Ohio Revised Code 2317.43, commonly referred to as the Apology Statute, to exclude a physician’s post procedure statements from evidence in a medical malpractice lawsuit The Court’s slip opinion can be accessed here: Johnson v. Smith.
In 2001, complications resulted from a gall bladder operation performed by Dr. Smith on Ms. Johnson. Ms. Johnson returned to the hospital after experiencing complications, but her condition required transfer to a different hospital. Trying to console the upset and emotional Ms. Johnson, Dr. Smith took her hand and said, “I take full responsibility for this. Everything will be okay.”
In 2002, Ms. Johnson and her husband sued Dr. Smith for medical malpractice but voluntarily dismissed the case in 2006. They filed a new malpractice suit in 2007. The Court initially decided that the Apology Statute applies to any cases filed after September 13, 2004, the effective date of the Apology Statute, regardless of whether the alleged malpractice occurred before this date. Dr. Smith sought pretrial to exclude his statements from evidence based on the Apology Statute, which provides in part:
In any civil action brought by an alleged victim of an unanticipated outcome of medical care or in any arbitration proceeding related to such a civil action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim, and that relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.
The Supreme Court stated that the physician’s statements were “precisely the type of evidence that [the Apology Statute] was designed to exclude as evidence of liability in a medical-malpractice case.” The Court reasoned that Dr. Smith was faced with a distressed patient whom he tried to comfort and therefore the Apology Statute excluded his statements.
The Court’s decision is favorable for health care providers because it seems to recognize that statements regarding “responsibility” are not statements admitting fault. Judge Cannon, the dissenting judge from the Eleventh District Court of Appeals, stated that Dr. Smith, as the performing surgeon, had no choice but to take responsibility and further that a bad result does not necessarily equate to medical negligence. “Being responsible is not the same as admitting to legal liability,” he stated. The Supreme Court appears to agree with Judge Cannon by ruling that the “responsibility” statement of Dr. Smith is “precisely the type of evidence” that the Apology Statute is intended to exclude.
Compare this to the decision of the Ninth District Court of Appeals in Davis v. Wooster Orthopaedics & Sportsmedicine.1 In Davis, the Ninth District Court of Appeals distinguished statements of sympathy or apology (e.g., “I’m sorry”) from statements of fault (e.g., “It was my fault”), ruling that that the former would be inadmissible but that the latter would be admissible. The Franklin County Court of Common Pleas has ruled similarly, finding that providers’ statements of fault can be severed from their statements of sympathy. In Dimitroff v. Grischow,2 Judge Beatty was faced with a physician’s statement to the effect that “he was sorry, he had a made a mistake.” In Dimitroff, the court excluded from evidence the apology language but did not exclude the mistake language because the former was a legitimate statement of sympathy excluded by the Apology Statute but the latter was an admission of fault not excluded thereby.
Even though the Supreme Court’s April 23 decision seems to protect a provider’s admission of responsibility by characterizing it as an apology, providers must remain careful with their statements after unanticipated outcomes result from their medical care. Courts will continue to admit providers’ statements of fault (e.g., statements including the words “mistake, “error,” “fault,” “slip-up,” and words of similar meaning). Providers should be assured, though, that Ohio courts will protect their genuine statements of apology and sympathy from being used against them in malpractice suits.
(1) 952 N.E.2d 1216 (Ohio Ninth District Court of Appeals, June 29, 2011).
(2) Franklin County Court of Common Pleas, No. 07 CV 000103 (Feb. 16, 2010).