Jeanne M. Mullin and Holly Marie Wilson

The Ohio Supreme Court recently affirmed that a health care provider’s statements of fault or statements admitting liability made during the course of apologizing to a patient or a patient’s family are prohibited from admission into evidence in a civil action pursuant to Ohio’s Apology Statute, R.C. 2317.43.

R.C. 2317.43, is intended to permit a medical provider to speak with a patient and/or a patient’s family members and express heartfelt sympathy for their pain following a negative outcome without risk of that expression of sympathy being used against the provider in court. The statute provides, in relevant part, as follows:

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.

Id., R.C. 2317.43(A).

Until recently, however, Ohio’s appellate courts were split on how to apply the statute to instances where an apology is coupled with an admission of fault. For example, in Davis v. Wooster Orthopaedics & Sportsmedicine, 193 Ohio App.3d 581, 2011-Ohio-3199, Ohio’s Ninth District Court of Appeals determined that the Apology Statute protects “pure expressions of apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, but not admissions of fault.” Id. at ¶ 13. In reaching this conclusion, the court reasoned that “the word ‘apology’ could reasonably include at least an implication of guilt or fault. On the other hand, ‘when hearing that someone’s relative has died, it is common etiquette to say, “I’m sorry,” but no one would take that as a confession of having caused the death.’” Id. at ¶ 10.  

Conversely, in Stewart v. Vivian, 12th Dist. Clermont No. CA2015-05-039, 2016-Ohio-2892, the Twelfth District Court of Appeals concluded that R.C. 2317.43 is ambiguous because according to the term’s dictionary definition, “apology” “may or may not include an admission of fault.” Id. at ¶ 47. Therefore, the court proceeded to consider the statute’s legislative history, and concluded that the General Assembly’s intent was to protect all statements of apology—including those admitting fault—under R.C. 2317.43(A). Id. at ¶ 47, 50.

Acknowledging the existence of a conflict between the appellate courts, the Supreme Court of Ohio accepted the matter for review. Because the General Assembly does not define the word “apology” in the body of the Apology Statute, the Supreme Court looked to the term’s dictionary definition, which includes: “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 * * *.” Stewart v. Vivian, Slip Opinion 2017-Ohio-7526, ¶ 27.

In applying this definition of the word “apology” to the word as it is used in R.C. 2317.43(A), the Court found that the statutory language “is susceptible of only one reasonable interpretation. Under this plain and ordinary meaning of ‘apology,’ 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.” (Emphasis added.) Id., ¶ 28.

This protection for communication occurring post-negative outcome, however, is not absolute. In Stewart v. Vivian, Chief Justice Maureen O’Connor dissented in part with the majority opinion because she did not believe that the subject defendant-physician’s statements, which included, “What do you think happened here?” and a similar statement that the doctor “didn’t know how it happened,” qualified as an apology subject to protection. The Chief Justice noted that the law should not be applied so rigidly as to require the words “I apologize” or “I sympathize,” in order for the statement to be excluded, but that the Court needs to draw a line and not include “vague statements that, at best, might constitute expressions of shock and surprise” that do not include an apology or expression of commiseration or regret. Id., ¶ 43.

The Supreme Court’s decision affords medical health professionals added protection when honestly and compassionately communicating with patients and/or family members after an adverse outcome. Regardless, medical providers must still be cognizant of the fact that the exact wording of the apology, as opposed to the intent of the speaker, is subject to scrutiny. Thus, if an apology is to be offered, it must have the indicia of apology, commiseration, and/or regret.

Apology, or communication after an adverse event is not easy. It requires forethought, humility and, perhaps, collaboration and planning. Should you have any questions concerning Ohio’s Apology Statute, its application, or if you would like a copy of the Court’s opinion in Stewart v. Vivian, please contact a member of Reminger’s Medical, Dental, Health Care, or Long-Term Care Liability Practice Groups.

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