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June 2013 CBA REPORT
cover article
patient advocates argue that if the word
“apology” is read in context with the list
of other sentiments that are excluded
under R.C. 2317.43, the statutory lan-
guage clearly does not include statements
of fault or admissions of responsibility
within the scope of protection. Plaintiffs’
attorneys stress that if the Ohio General
Assembly had intended to prohibit the
admission of all statements of fault ut-
tered by medical professionals to injured
patients or their families, it could have
done so by including language excluding
all
“admissions of liability” or “state-
ments against interest,” rather than
limiting its description of the prohibited
statements to those “expressing apology,
sympathy, commiseration, condolence,
compassion, or a general sense of be-
nevolence.”
29
In addition, the argument
goes, under our adversarial system of jus-
tice, there is no reason to believe a doctor
would say something against her interest
if it were not true. Thus, a statement
of fault or admission of responsibility
should be deemed admissible against the
doctor who made it.
An additional complication is a
situation in which a doctor’s sentiment
includes both an expression of sympathy
and
an admission of fault in the same
statement. Under the Apology Stat-
ute, the statement of sympathy would
be excluded as inadmissible, but the
statement of fault would be admissible
against the physician. From a public
policy perspective, it seems perverse to
exclude a doctor’s expression of compas-
sion to a patient or a patient’s family,
but then admit the doctor’s admission
of responsibility, particularly when both
communications are made in the course
of the same statement. The Ohio Rules of
Evidence include a “doctrine of com-
pleteness” that would hopefully preclude
such a predicament, as such a construc-
tion would surely subvert the legislative
intent of the statute.
30
But until the Ohio
Supreme Court gives us some clear guid-
ance on the full scope of R.C. 2317.43,
that possibility is real. Unfortunately, the
Court’s decision in
Estate of Johnson
did
not provide clear guidance on whether
the Ohio Apology Statute excludes
admissions of fault, as it merely held
that Dr. Smith’s statement “I take full
responsibility” was “precisely the type of
evidence that R.C. 2317.43 was designed
to exclude as evidence of liability in a
medical-malpractice case.”
31
In the wake of
Estate of Johnson
,
health care providers should remain
cautious when speaking with a patient
or family members following an adverse
medical outcome to ensure that any
statements they make comply with the
Apology Statute and are not later deemed
an admission of liability or a statement
against interest. Defense attorneys
representing health care providers in
medical malpractice cases should advise
doctors to have impartial witnesses pres-
ent during any meeting with an injured
patient or aggrieved family member after
an adverse medical outcome, especially
given how easily time and emotion can
affect how a patient or family members
feel about a doctor’s well-intentioned
statement made in the immediate wake
of a patient’s injury or death. Plaintiffs’
attorneys in medical malpractice actions
should keep in mind that admissions of
fault by health care providers may still
be admissible in the aftermath of
Estate
of Johnson
, even if statements of respon-
sibility are not. Until the Ohio Supreme
Court settles the uncertainty surround-
ing the admissibility of statements of
fault under R.C. 2317.43, the full scope of
the Apology Statute remains unclear.
Greg Laux is an associate at Wood & Lamping. He is
a graduate of the University of Cincinnati College of
Law. Laux focuses his practice on municipal law, land
use and zoning regulation, and civil litigation. He has
a particular interest in medical malpractice.
1
Estate of Johnson v. Randall Smith, Inc.
, 131 Ohio St.3d
1543, 966 N.E.2d 896, 2012-Ohio-2025,
discretionary
appeal allowed
(May 9, 2012).
2
Johnson v. Randall Smith, Inc.
, 196 Ohio App.3d 722, 727,
965 N.E.2d 344, 449, 2011-Ohio-6000, at ¶22 (11th
Dist. 2011).
3
Id.
, 196 Ohio App.3d at 729, 965 N.E.2d at 350, 2011-
Ohio-6000, at ¶28-29; s
ee also
Ohio Evid.R. 801(D)
(2)(a) (admission by a party), Ohio Evid.R. 804(B)(3)
(statement against interest), and Ohio Evid.R. 403(A)
(probative value v. danger of unfair prejudice).
4
Estate of
Johnson, supra
.
5
Estate of Johnson v. Randall Smith, Inc.
, Slip Opinion No.
2013-Ohio-1507, syllabus.
6
See
Sub. H.B. No. 215, 150 Ohio Laws, Part III, 4146
(“H.B. 215”).
7
See
R.C. 2317.43 (West 2013).
8
See
Ohio Evid. R. 409, which provides that “[e]vidence
of furnishing or offering or promising to pay medical,
hospital, or similar expenses occasioned by an injury
is not admissible to prove liability for the injury.” Rule
409 does not exclude statements of responsibility or
admissions of fault from admissibility.
9
See
R.C. 2317.43 (West 2013); Mont. Code Ann. 26-
1-814 (2009); N.D. Cent. Code 31-04-12 (2009); Okla.
Stat.Ann.Title 63, 1-1708.1H (West 2013);W.Va. Code
Ann. 55-7-11a (West 2013);Wyo. Stat.Ann. 1-1-130
(2013).
10
See
La. Rev. Stat.Ann. 13:3715.5 (2013); Cal. Evid. Code
1160(a) (West 2013); Del. Code Ann.Title 10, Section
4318 (2011); Fla. Stat.Ann. 90.4026 (West 2013); Haw.
Rev. Stat.Ann. 626-1, Rule 409.5 (West 2013); Idaho
Code Ann. 9-207 (2013); Ind. Code Ann. 34-43.5-1-4
and 34-43.5-1-5 (West 2013); Me. Rev. Stat.Ann.Title
24, Section 2907 (2013); Md. Code Ann., Cts. & Jud.
Proc. Section 10-920 (West 2013); Mass. Gen. Laws
Ann. Ch. 233, 23D (West 2013); Mich. Comp. Laws
Ann. 600.2155 (West 2013); Mo.Ann. Stat. 538.229
(West 2013); Neb. Rev. Stat.Ann. 27-1201 (West 2013);
N.H. Rev. Stat.Ann. 507-E:4 (2013);Tenn. R. Evid. 409.1
(2013);Tex. Civ. Prac. & Rem. Code Ann. 18.061 (Ver-
non 2013);Va. Code Ann. 8.01-52.1 (2013). The Hawaii
legislature explained its intent by commenting that its
rule excluding expressions of sympathy while permit-
ting the use of expressions of fault “favors expressions
of sympathy as embodying desirable social interactions
and contributing to civil settlements.”
See
Haw. Rev.
Stat.Ann. 626-1 (West 2013), Commentary to Rule
409.5.
11
See
Cal. Evid. Code 1160(a) (West 2013).
12
See
Ariz. Rev. Stat.Ann. 12-2605 (2013); Colo. Rev. Stat.
Ann. 13-25-135 (West 2013); Conn. Gen. Stat.Ann.
52-184d (West 2013); Ga. Code Ann. 24-3-37.1 (West
2013); S.C. Code Ann. 19-1-190 (2013); Utah Code Ann.
78B-3-422 (West 2013) (excluding from evidence the
sequence and significance of events relating to the un-
anticipated outcome of medical care);Vt. Stat.Ann.Title.
12, 1912 (2013); andWash. Rev. Code Ann. 5.64.010
(2013).
13
See
Colo. Rev. Stat.Ann. 13-25-135 (West 2013).
14
See
193 Ohio App.3d 581, 952 N.E.2d 1216, 2011-
Ohio-3199 (9th Dist. 2011).
15
Id.
, 2011-Ohio-3199, at ¶1.
16
Id.
, at ¶14.
17
Id.
, at ¶31.
18
Id.
, at ¶13.
19
See
196 Ohio App.3d 722, 965 N.E.2d 344, 2011-Ohio-
6000 (11th Dist. 2011).
20
Id.
, 2011-Ohio-6000, at ¶4.
21
Id.
, at ¶5.
22
Id.
, at ¶¶8-9.
23
Id.
, at ¶29.
24
Id.
, at ¶20.
25
Id.
, at ¶15.
26
Id.
, at ¶31 (Cannon, J., dissenting).
27
Id.
, at ¶12.
28
Davis
, 2011-Ohio-3199, at ¶10.
29
See
R.C. 2317.43 (West 2013).
30
See
Ohio Evid. R. 106;
see also
Staff Note to Ohio Evid.
R. 410 (July 1, 1991 Amendment).
31
Estate of Johnson
, Slip Opinion No. 2013-Ohio-1507, at
¶23.
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