by 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.