JuneReport - page 6

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June 2013 CBA REPORT
cover article
his practice group. Mr. Davis alleged
medical malpractice against Dr. Knapic
for negligently performing a lumbar
microdisectomy by completely severing
his wife’s common iliac artery, lacerating
her iliac vein, and failing to timely diag-
nose the medical condition that his wife
developed after the procedure.
15
At trial,
Mr. Davis testified that after the sur-
gery, Dr. Knapic said “as far as the back
surgery, everything went fine,” but that
when Mrs. Davis was rolled over on her
stomach, her blood pressure started to
drop, and an ultrasound was performed
that revealed bleeding, indicating that
at some point an artery was nicked. Mr.
Davis then testified that Dr. Knapic said,
“It’s my fault. I take full responsibility.”
16
Mr. Davis argued that while R.C. 2317.43
may exclude the admission of statements
of sympathy, a direct admission of re-
sponsibility should be admissible under
the plain and unambiguous language of
the statute. Dr. Knapic argued that that
drawing a distinction between an ac-
knowledgment of fault and an expression
of sympathy violated the statutory intent
behind R.C. 2317.43, which was to avoid
the obvious detriment to the doctor-
patient relationship that can follow an
adverse medical outcome, particularly if
the doctor refuses to speak to the patient
or the family and feels uncomfortable ex-
pressing any compassion and regret. Dr.
Knapic also argued that the nature of the
word “apology” inherently incorporates
an expression of fault or admission of er-
ror, and thus that statements like “I take
full responsibility” fell clearly within the
ambit of the statute’s protection.
The Ninth Appellate District conclud-
ed that the intent behind the Apology
Statute was to protect pure expressions
of sympathy but not admissions of
fault.
17
The court held that Dr. Knapic’s
statements constituted an admission
of liability and could be admitted into
evidence. The court noted that this inter-
pretation was consistent with the public
policy espoused by the majority of states
that have adopted apology laws, with an
explicit distinction between sympathy
and fault. Further, the court reasoned
that a rule protecting a health care
provider’s expression of sympathy from
use at trial, but not an admission of fault,
would advance the goal of diminishing
the obvious damage to the physician-
patient relationship following a negative
medical outcome.
18
The second case is
Johnson v. Randall
Smith, Inc
.
19
The facts in
Johnson
were
similarly straightforward. In April 2001,
Dr. Randall Smith performed a laparo-
scopic surgical procedure on Jeanette
Johnson’s gall bladder. Complications
arose during the course of the operation,
and Johnson experienced a condition
in which the opening of the common
duct in her gall bladder narrowed in
size. Although she was released from
the hospital soon after the procedure,
Johnson had to be readmitted within
three weeks for jaundice and obstruction
of a bile duct. After Dr. Smith informed
Johnson that she would have to undergo
additional surgery at a different hospital
to address her post-surgical complica-
tions, she became very emotional. Dr.
Smith took her hand and stated before
several witnesses, “I take full responsi-
bility for this.”
20
Johnson subsequently
underwent five additional procedures to
repair the damage she suffered during
the 2001 surgery. Within a year and a
half of the initial procedure, Johnson and
her husband filed a medical malpractice
claim against Dr. Smith and his medical
corporation.
21
In September 2004, while Johnson’s
suit was pending, the Ohio General As-
sembly enacted R.C. 2317.43. After a long
delay in the proceedings in her case, dur-
ing which Johnson dismissed her original
complaint in 2006 and filed a new one in
2007, the case was set for a jury trial in
2010. During pretrial proceedings, Dr.
Smith’s attorneys filed a motion in limine
to exclude any reference to Smith’s state-
ment that he “took full responsibility” for
Johnson’s post-surgical condition, citing
R.C. 2317.43. The trial court granted the
motion. After a two-day trial during
which no evidence regarding Dr. Smith’s
statement was considered, the jury re-
turned a defense verdict.
22
Johnson appealed, arguing that the
exclusion of Dr. Smith’s 2001 statement
was an unconstitutional retroactive
application of the 2004 Apology Statute
that deprived her of a fair trial. The
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