JuneReport - page 5

June 2013 CBA REPORT
l
5
cover article
E
E
arlier this year, the Ohio Supreme
Court decided the case of
Estate
of Johnson v. Smith
.
1
At issue
in
Smith
was whether Ohio’s Apology
Statute – R.C. 2317.43 – applies retroac-
tively to statements of apology, sympathy,
and compassion made by physicians
in the wake of an unfortunate medical
outcome, and whether the statute was
intended to exclude statements of fault
within the scope of its protection. In the
decision below, a divided Eleventh Ap-
pellate District held
that the statute did
not apply retroac-
tively to exclude the
statement “I take full
responsibility” made
by a physician for
causing post-surgical
medical complica-
tions to a patient.
2
The appeals court also held the physi-
cian’s statement was admissible as a party
admission, an admission against interest,
and that its probative value outweighed
any danger of unfair prejudice under the
Ohio Rules of Evidence.
3
The doctor ap-
pealed the decision to the Ohio Supreme
Court, which granted discretionary
review on May 9, 2012, and heard oral
arguments on February 5, 2013.
4
The
Court issued a decision on the merits on
April 23, 2013, holding that R.C. 2317.43
applies to any cause of action filed after
September 13, 2004.
5
Background – Ohio Apology
Statute
R.C. 2317.43 was enacted by the
Ohio General Assembly in September
2004. According to its stated intent,
the purpose of the Apology Statute is to
prohibit the use of a physician’s statement
of sympathy as evidence in a medical
malpractice action.
6
The statute pro-
vides that all “statements, affirmations,
gestures, or conduct expressing apology,
sympathy, commiseration, condolence,
compassion, or a general sense of be-
nevolence” made by a medical provider
to a patient or a patient’s relative or rep-
resentative as a result of an unanticipated
adverse outcome are “inadmissible as
evidence of an admission of liability or as
evidence of an admission against inter-
est.”
7
Similar to Ohio Evidence Rule 409,
which addresses offers to pay medical
expenses, the language of the Apology
Statute does not draw a clear distinc-
tion as to whether an admission of fault
is admissible as a party admission or
admission against interest in subsequent
litigation.
8
Ohio is one of only six states
that have enacted apology statutes that
fail to clearly distinguish between the
admissibility of a physician’s statement of
sympathy and one acknowledging fault.
9
Among the 36 states that have
adopted physician apology statutes, the
majority of them explicitly distinguish
between statements of sympathy and
admissions of fault. On the one hand,
17 of the states that have explicitly
distinguished between expressions of
compassion and admissions of fault have
elected to admit statements of fault while
excluding expressions of sympathy.
10
A
good example is California’s Apology
Statute, which provides that only “the
portions of statements or benevolent
gestures expressing sympathy” are inad-
missible against a treating physician in a
later malpractice action.
11
On the other
hand, 8 of the states that have explicitly
drawn the same dis-
tinction have chosen
to exclude both
types of statements
from admission
into evidence.
12
A
good example is
Colorado’s Apology
Statute, which pro-
vides that “any and
all statements expressing apology, fault,
sympathy, commiseration, condolence,
compassion, or a general sense of be-
nevolence are inadmissible as evidence of
a party admission or admission against
interest.
13
Ohio Cases Addressing the
Apology Statute
There are only two reported cases in
Ohio that have addressed R.C. 2317.43.
The first is
Davis v. Wooster Orthopae-
dics & Sports Medicine, Inc.
14
The facts
in
Davis
were uncomplicated. Barbara
Davis was 49 years old when she died
following back surgery on July 23,
2004. Her husband filed a wrongful
death action against her orthopaedic
surgeon — Dr. Michael Knapic — and
The Scope of Ohio’s
Apology Statute
By Greg Laux
Among the 36 states that have adopted
physician apology statutes, the majority of
them explicitly distinguish between statements
of sympathy and admissions of fault.
1,2,3,4 6,7,8,9,10,11,12,13,14,15,...40
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