JuneReport - page 7

June 2013 CBA REPORT
l
7
cover article
Eleventh Appellate District agreed,
and in a 2-1 decision, reversed the trial
court’s pretrial ruling excluding Dr.
Smith’s statement from evidence.
23
The
court reasoned that because the Gen-
eral Assembly did not include specific
language in the Apology Statute ex-
pressly indicating an intent to apply the
law retroactively, the trial court erred by
barring testimony regarding Dr. Smith’s
2001 statement.
24
The court remanded
the case for a new trial.
Dr. Smith sought and was granted
discretionary review on appeal to the
Ohio Supreme Court. Dr. Smith’s
attorneys argued that applying the Apol-
ogy Statute to bar testimony about his
statement during Johnson’s 2010 trial was
not a retroactive application of the law
because R.C. 2317.43 bars such testi-
mony “in any civil action brought” after
the statute’s September 2004 effective
date.
25
They argued, and the dissenting
appeals court judge agreed, that because
Johnson’s malpractice complaint was
refiled in 2007, applying R.C. 2317.43 to
bar testimony about Smith’s statement in
her case was a
prospective
application of
the law to a lawsuit that was not actually
“brought” until nearly three years after
the new law took effect.
26
In response, Johnson’s attorneys
argued that her injuries and the events
leading up to them were established in
2001. Because the statement made by
Dr. Smith admitting “responsibility”
for her post-surgical complications was
made three years before the enactment
of the Apology Statute, they argued that
the appeals court correctly held that
applying the statute to prevent Johnson
from presenting evidence of Dr. Smith’s
2001 admission of liability to the jury
would be an unconstitutional retroactive
application of R.C. 2317.43.
27
They also
contended that, even if the application of
the Apology Statute to Johnson’s refiled
complaint was held to be prospective,
the trial court still erred in excluding Dr.
Smith’s statement “I accept full respon-
sibility for this” was in substance neither
an apology nor an expression of “sympa-
thy” or “condolence” under R.C. 2317.43.
Conclusion
Unfortunately, neither the
Davis
nor
Johnson
decisions provided much
guidance on what
would
constitute a
protected statement under Ohio’s Apol-
ogy Statute. The
Davis
Court did observe
in dicta that it is common etiquette to
say “I’m sorry” upon hearing that an
individual’s relative has died, and that
no reasonable person would construe
such a statement as a confession of hav-
ing caused a death.
28
Presumably, such
a statement would be protected by the
Apology Statute, but the use of the word
“apology” in the statute creates some
ambiguity. The public policy arguments
for admitting or excluding statements of
fault cut both ways. On the one hand,
physicians contend that statements of
sympathy and fault following an un-
fortunate medical outcome should be
excluded entirely from evidence, as it is
desirable to promote candor and frank-
ness in the doctor-patient relationship,
and admitting such statements into
evidence could have a “chilling effect” on
communication between a physician and
a patient. In that same vein, a colorable
argument can be made that the word
“apology” in R.C. 2317.43 reasonably
includes an expression of fault, admis-
sion of error, or at least an implication of
guilt for an offense. On the other hand,
Todd Bailey, Bea Larsen, Jerry Lawson, Bob Kaiser, Mike Kaufman, Lori Ross
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