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Ohio Supreme Court Clarified Protections Under the "Apology" Statute

Posted on Wed, May 15, 2013 @ 02:32 PM

Jack B. Harrisonby Jack B. Harrison

Effective in 2004, Ohio’s “apology” statute, ORC 2317.43, was designed to protect physicians from having statements they might make in the context of providing care and comfort to patients used against them in a subsequent medical malpractice action.  Specifically, Ohio’s “apology” statute states:

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.  

What has been perplexing to Ohio’s courts has been whether statements by a physician of responsibility were within the reach of this statute.

For example, in Davis v. Wooster Orthopaedics & Sportsmedicine, the Ninth District Court of Appeals held that statements of sympathy or apology could be separated and distinguished from statements of fault or responsibility.  In Davis, the Court of Appeals held that, under the “apology” statute, statements of sympathy or apology would be inadmissible, but that statements of fault would be admissible.  Similar reasoning was followed by the Franklin County Court of Common Pleas in Dimitroff v. Grischow, where the trial judge facing a physician’s statement that “he was sorry, he had a made a mistake,” concluded that the “sorry” statement was inadmissible under the “apology” statute, but that the “mistake” statement was admissible.

Recently, the Ohio Supreme Court was faced with the reach of the “apology” statute in Johnson v. Smith.  In a decision issued, April 13, 2013, the Supreme Court reversed the decision of the Court of Appeals of the Eleventh District and signaled a fairly broad reading of the “apology” statute.

In Johnson, Dr. Smith performed a gall bladder operation on Ms. Johnson in 2001.  Complications resulted from the surgery and Ms. Johnson was forced to return to the hospital.  Subsequently, these complications required that she be transferred to another hospital for treatment.  Apparently in an effort to give comfort to an emotional Ms. Johnson, Dr. Smith took her hand and said, “I take full responsibility for this. Everything will be okay.”

Ms. Johnson and her husband then sued Dr. Smith in 2002 for medical malpractice, but voluntarily dismissed the case in 2006.  The Johnsons then refiled their case in 2007.  In a pretrial motion, Dr. Smith sought to have his statement excluded under the “apology” statute.  The trial court granted Dr. Smith’s motion and excluded his statements under the “apology” statute, concluding that these were statements of comfort.  The jury returned a verdict in favor of Dr. Smith.

On appeal, the Court of Appeals for the Eleventh District held that the “apology” statute did not apply to Dr. Smith’s statement because it was not in effect at the time the statement was made.  The Court of Appeals further indicated that a reasonable jury could have concluded that Dr. Smith’s statement was not a statement of comfort, but rather an admission of fault.

In reversing the Court of Appeals, the Supreme Court first held that the “apology” statute applies to any cause of action filed after September 13, 2004, the effective date of the statute, regardless of when the statement was made.  The Supreme Court further held that it was not an abuse of discretion for the trial court to have excluded Dr. Smith’s statement under the “apology” statute, in that the trial court “determined that Dr. Smith was faced with a distressed patient who was upset and made a statement that was designed to comfort his patient.”

While the Supreme Court’s decision in Johnson appears to give broad latitude to a trial court to determine whether a provider’s admission of responsibility is protected under the “apology” statute, health care providers must be cautious in providing statements to patients in situations where unanticipated outcomes result from their medical care.  It is likely that courts will continue to admit statements that can best be characterized as statements of fault, where words such as “mistake, “error,” or “fault” are used.

Tags: Ohio's apology statute

Court of Appeals Strikes Down NLRB Poster Rule

Posted on Wed, May 08, 2013 @ 12:30 PM

Jack B. Harrisonby Jack B. Harrison

On Tuesday, May 7, 2013, in National Ass’n of Manufacturers v. National Labor Relations Board, a three-judge panel of the United States Court of Appeals for the D.C. Circuit issued an opinion striking down a controversial rule issued in 2011 by the National Labor Relations Board (“NLRB”).  This rule would have required companies to post a notice affirmatively advising employees of their rights under federal labor law, including the right to form or join a union.  While the rule had been scheduled to go into effect on April 30, 2013, its implementation had been stymied by the issuance of an injunction and several court challenges.

The Court of Appeals was troubled by the fact that the rule made the failure of a company to post the required poster an unfair labor practice in itself or, at a minimum, prima facie evidence of union animus in an unfair labor practice proceeding.  In striking down the rule, the Court of Appeals relied upon section 8(c) of the National Labor Relations Act (“NLRA”), which states:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

29 U.S.C. § 158(c).  Using this provision, the Court of Appeals ultimately concluded that if the expression of views was protected under the NLRA against a charge that such an expression was an unfair labor practice, so long as the expression was noncoercive, so too was silence or the failure to express a particular viewpoint.  In his opinion, Senior Judge Randolph wrote, "[t]his is why, for example, a company official giving a noncoercive speech to employees describing the disadvantages of unionization does not commit an unfair labor practice if, in his speech, the official neglects to mention the advantages of having a union."  As a result, the Court of Appeals concluded that the NLRB’s poster requirement rule violated section 8(c), in that the rule made the failure of an employer to speak in a particular manner a per se unfair labor practice.

This may mean the end of the line for the NLRB’s poster requirement rule.  However, the NLRB could seek rehearing of this decision by the en banc Court of Appeals for the D.C. Circuit or the NLRB could seek to immediately appeal this decision to the Supreme Court.  Additionally, a federal district judge in South Carolina in April, 2012 also held that the NLRB lacked the authority to issue this poster requirement rule.  That South Carolina decision is currently on appeal to the United States Court of Appeals for the Fourth Circuit.  In the unlikely event that the Fourth Circuit should reverse the district court’s holding and uphold the NLRB’s rule, a split in the Circuits would exist, making it more likely that the Supreme Court would ultimately resolve the issue.

Thus far, the NLRB has had a very rough ride before the D.C. Court of Appeals of late.  Because implementation of the poster requirement rule has been placed on hold as a result of various challenges, employers are currently relieved of the obligation to prominently display the poster in their workplaces.  Prudent employers should continue to monitor this issue and the actions taken by the NLRB in this area.  We will continue to provide updates as new issues arise.

Tags: Poster Rule, NLRA, NLRB, National Labor Relations Board

Supreme Court Endorses Possible Strategy for Employers in Defending FLSA Collective Actions

Posted on Mon, May 06, 2013 @ 09:06 AM

by Jack B. HarrisonJack B. Harrison

The past few years have seen the rise of litigation involving “collective actions” under the Fair Labor Standards Act (“FLSA”).  In these collective actions, groups of employees have alleged that they were denied required overtime pay by employers in violation of the FLSA.  In a recent decision, Genesis Healthcare Corp. v. Symczyk, the United States Supreme Court, in a 5-4 decision, upheld one possible defense strategy for employers in attempting to resolve FLSA collective actions early in the litigation process and before the collective action has been certified by the court

In Symczyk, Laura Symczyk, who worked as a nurse, claimed that Genesis Healthcare had violated the FLSA by automatically deducting break time from her and other employees’ pay, regardless of whether they performed compensable work during their breaks.  Symczyk sued on her own behalf and on behalf of “all other persons similarly situated” to recover compensation for that time, along with attorneys’ fees and liquidated damages.  Early in the case and before the court had ruled on whether a collective action could be properly certified in this case, Genesis Healthcare made an offer of judgment, pursuant to F.R.C.P. 68, to Symczyk for $7,500 plus costs and attorneys’ fees to be determined by the Court.  This offer represented all that Symczyk could possibly recover individually in the case.  However, she made no response to the offer of judgment before it expired, thus, in effect, rejecting the offer.  Genesis Healthcare then sought dismissal of the case, arguing that since it had offered Symczyk all that she could possibly recover individually in the case, no case or controversy remained for the court to adjudicate.  The court granted Genesis Healthcare’s motion to dismiss, ending the lawsuit before any decision was made as to the certification of the collective action.

On appeal to the United States Court of Appeals for the Third Circuit, Symczyk argued that, despite the offer of complete relief, she continued to have a personal stake in the litigation and further argued that the interests of potential plaintiffs that had yet to join the collective action creates ongoing jurisdiction for the court.  The Court of Appeals reversed the decision of the district court dismissing the case, concluding that while Symczyk’s claim was moot as a result of the offer of judgment, the overall collective action was not made moot as a result.  The Court of Appeals rationale for this decision was that to allow defendants to “pick off” named plaintiffs before certification would undermine the goals of collective actions.

In its decision, the Supreme Court did not decide whether an offer of judgment for full relief always moots a claim for relief even where the offer is declined.  Because a split among the Courts of Appeals of the various circuits exists on this fundamental issue, it had been hoped that the Supreme Court would resolve this issue.  Instead, the Supreme Court, relying on Third Circuit precedents, held that it was the law of the Third Circuit that a rejected offer of judgment for full relief moots the claim of the individual litigant.  Based on this conclusion, the Supreme Court then held that, in a collective action context, where the claim of the individual named plaintiff is mooted, the FLSA collective action (unlike a class action certified under Federal Rule of Civil Procedure 23) has no remaining independent legal status, and dismissal of the entire lawsuit is proper.

This decision impacts FLSA collective-action litigation for both plaintiffs and defendants, including plaintiffs’ use of the discovery process to identify and then join additional plaintiffs to the collective action and defendants’ use of individual offers of judgment to resolve collective actions early in the litigation process and before certification.  The Supreme Court essentially endorsed a strategy by defendants to try and “pick off” individual named plaintiffs in collective actions by making offers of judgment to those named plaintiffs in an effort to moot the claims of the individual named plaintiffs prior to a collective action being certified.  This would arguably be an effective defense strategy, particularly in those jurisdictions where a rejected offer of judgment moots a claim.  A prudent employer might conclude that paying the full amount an individual plaintiff claims to be owed, along with some measure of attorney’s fees, might well be preferable to being involved in a large collective action with significant risks and defense costs.

Tags: Fair Labor Standards Act

What is a Will and Why do I Need One?

Posted on Fri, May 03, 2013 @ 11:30 AM

by Hans M. ZimmerHans M. Zimmer

Having done estate planning for 30 years, what I have come to realize is that many people from all walks of life not only do not have a will but in addition, do not really understand what a will is and what it does. Within the last month, I have given presentations at 2 seminars put on by employers for their employees: one was at an engineering firm, the other was at the local office of a government agency. The employees attending the seminar at the engineering firm nearly all had advanced degrees in engineering, while the employees at the government office nearly all had advanced degrees in either chemistry or biology. I started both seminars with a very basic question: who doesn’t have a will? Out of a total of approximately 60 people attending the seminars, it may surprise you to hear that more than half did not have a will or any form of estate plan in place. The follow-up question that I asked is: Why not? The answer typically came back as that the people in question did not think they needed a will or that they did not understand what a will really could and should do for their family. In light of these responses, this article will try to answer some basic questions and also clear up some common misconceptions about wills.

In its most basic form, a will is a document that you sign in front of 2 witnesses who cannot be family members that spells out who should receive your property if you pass away. This includes your house, your car, your furniture, your bank accounts and anything else that you own (with some exceptions). How many people in the seminars I gave do you think owned some or all of those items? Actually everyone in those rooms had property in various shapes and sizes that would be governed by a will. After I explained this basic role of a will, the question came up: what happens if I die without a will?

If a person dies without a will, Ohio law states that this person died “intestate.” What exactly does that mean? A common misconception is that if a person dies without a will, his or her property goes to the State. That is certainly wrong. Ohio law spells out a detailed scheme for distributing a deceased person’s property if that person dies without a will. Without spelling out the law in all of its details, Ohio laws would say that a deceased person’s property goes to his or her spouse, and if there is no spouse, but surviving children, then the property goes to the children of the decedent. If a person has neither a spouse nor children, Ohio law would give the property to the deceased person’s brothers or sisters. If no brothers or sisters survive, the property is transferred to the deceased person’s parents. Several more steps are provided in the law to insure that a deceased person’s relatives receive the property and only if no relatives are found, does a deceased person’s property revert to the State.

The next question would be: since a state law exists that really deals with the situation, why should I bother paying a lawyer to put a will together? The first reason is that the state law may not really reflect what you would want to happen. You may want to have your property pass to certain of your relatives and not others or not in equal shares. You may have some charitable objectives. None of these considerations would be taken into account under state law. The second reason is that the administration of a person’s estate is substantially more complicated for a person who dies without a will. In a will, not only do you designate who gets your property, but you designate a person, known as an executor, who is in charge of transferring your property. Without a will, the court appoints a person, who you may or may not know, to administer your estate. While an administrator has the same authority as an executor that you designate, 2 substantial differences exist that any person should take into account. An administrator appointed by the court will have to post a bond with Probate Court equal to double the value of your assets. Depending on the value of your property, this may cost several thousand dollars or more. An executor named in your will does not have to deal with this requirement. In addition, a court appointed administrator may not know much about your family and will struggle to find addresses or other contact information. It is likely that any administrator will be required by the court to prove that notice of the estate is given to all your relatives and the only way to insure that is to publish a notice in a local newspaper for several weeks. This again adds substantial cost to the administration of your estate.

If a person is not worried about his property in considering whether to have a will prepared, then the next main reason for having a will prepared is to designate a person to take care of your children, if any. Children under the age of 18 are required to have a legal guardian. Obviously, if a person is married, a surviving spouse automatically becomes guardian. But what if both parents die in an automobile accident or some other situation? Who takes care of the children then? In a will, a person can designate a family member to act in that role and this person would be somebody that is known and trusted. Without a will, the guardian would be appointed by a state agency and any relatives of the decedent would have to work through the state agencies to be able to help out any children under the age of 18. That process not only adds cost to the estate administration but it potentially places any children in an undesirable situation.

Reduced to its basics, every person should at least have a basic will to insure that their property goes to intended recipients and their children are taken care of by trusted individuals. Why take chances on what happens when the process of putting a will together is not that difficult or expensive?