The Supreme Court of Ohio (“Ohio Supreme Court”) held in its opinion filed on September 12, 2017 that under the plain and ordinary meaning of “apology,” for purposes of R.C. 2317.43(A) (Ohio’s apology statute), a “statement * * * expressing apology” is a statement that expresses a feeling of regret for an unanticipated outcome of the patient’s medical care and may include an acknowledgment that the patient’s medical care fell below the standard of care.
Ohio’s Apology Statute
Ohio’s apology statute, R.C. 2317.43, provides: “In any civil action brought by an alleged victim of an unanticipated outcome of medical care * * *, 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 * * * 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.”
Because Ohio’s apology statue does not define “apology,” the Ohio Supreme Court looked to one of the dictionary definitions to find the meaning of “apology”: “an acknowledgment intended as an atonement for some improper or injurious remark or act: an admission to another of a wrong or discourtesy done him accompanied by an expression of regret * * *.”
Hence, in answering the question on appeal (“[Are] a health care provider’s statements of fault or statements admitting liability made during the course of apologizing or commiserating with a patient or the patient’s family * * * prohibited from admission [into] evidence in a civil action under Ohio’s apology statute, R.C. 2317.43?”), the Ohio Supreme Court held “that for purposes of R.C. 2317.43(A), a “statement * * * expressing apology” is a statement that expresses a feeling of regret for an unanticipated outcome of the patient’s medical care and may include an acknowledgment that the patient’s medical care fell below the standard of care.”
The Underlying Facts
A suicidal woman who was admitted to a hospital’s psychiatric unit came under the care of the defendant physician, who ordered that the woman be observed by the staff every fifteen minutes. The following day, the woman’s husband came to visit his wife and found her in her room, unconscious as a result of hanging. The woman was transferred to the intensive care unit (“ICU”) and placed on life support.
Two days later, the defendant physician went to the woman’s ICU room to speak with her family. After he briefly spoke to several family members in the room, one of them asked him to leave, which he did.
The husband filed his Ohio medical malpractice wrongful death lawsuit on behalf of his wife’s estate and on his own behalf against the physician and the hospital, alleging claims of medical malpractice, loss of spousal consortium, wrongful death, and loss of chance. The defendant physician filed a motion in limine seeking to exclude statements he made to the woman’s family in her ICU room, arguing that the statements were an apology and therefore inadmissible pursuant to R.C. 2317.43.
During the hearing on the defendant’s motion in limine, the woman’s sister testified: “Dr. Vivian just walked in through the door * * * and walked over to—toward the end of Michelle’s bed, and kind of stood for a moment and then just said, so what do you think happened here? And I believe Dennis responded and ex—and said, well, obviously she tried to kill herself. And [Dr. Vivian] said, yeah, she said she was going to do that. She told me she would keep trying.”
The woman’s husband testified during the hearing: “Dr. Vivian walked in. I kind of tried to ignore him basically. Kept my focus mostly on Michelle. I do remember him saying a few things. I don’t remember him asking me anything about how it happened. I—I just remember him saying that he didn’t know how it happened; it was a terrible situation, but she had just told him that she still wanted to be dead, that she wanted to kill herself * * *.”
The defendant physician testified during the hearing: “What I remember is walking in and being at—at bedside and telling the family I’m sorry this has happened. And what I remember is some—someone was screaming at me telling me this is my fault, and I said I was sorry, and I left.” However, when questioned earlier about the ICU visit during his deposition, Dr. Vivian had answered, “I made a statement, but I don’t remember what I said.”
The trial court granted the defendant’s motion, and the Ohio medical malpractice jury subsequently found in favor of the defendants. The plaintiff appealed.
The Ohio Supreme Court affirmed the defense verdict, holding that the defendant physician’s statement(s) in the ICU were an apology, and thereafter inadmissible.
A dissenting opinion stated, “I would … hold that Dr. Vivian’s statements were not inadmissible under the apology statute, and remand the cause to the trial court for further proceedings” (Dr. Vivian’s statements, as established by the evidence, expressed neither apology nor “sympathy, commiseration, condolence, compassion, or a general sense of benevolence,” as described in the statute). The dissenter further stated, “there must be a limit based on the actual content of the statements and not the intention of the speaker. If not, a health-care provider could render any statement inadmissible simply by affirming a subjective intent to apologize or to console.”
Source Stewart v. Vivian, Slip Opinion No. 2017-Ohio-7526
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