Ohio Personal Injury and Medical Negligence – An apology for doing something wrong does not mean something wrong happened — at least not for medical care

The situation is not uncommon, where someone makes a mistake, maybe even hurting someone, maybe even by accident, and then they “do the right thing” – they apologize, or say something like an apology, either for what they did, or for what happened.  Occasionally, this happens in health care.  A patient ends up with a bad result from a treatment, a prescription, or from a medical procedure, or some other medical mistake – which recent statistics and studies show is more common than one might think.  The health care provider might say they were sorry, or “I’m sorry for your loss,” or maybe even “I take full responsibility for what happened.” 

Sometimes those incidents end up in court.  Ohio has Rules of Evidence, which govern what can be presented in court, and what cannot.  Ohio Rule of Evidence 801(D)(2) provides that an “admission” by an opponent in court is not inadmissible hearsay.  So one would think that if a medical provider makes a mistake that is actionable negligence, “apologizes” for it, or even admits it was their responsibility, that would be admissible in court against them if the patient takes them to court for compensation for what the medical provider did. 

Not so in Ohio courts, regardless of the Rule of Evidence.  The Ohio General Assembly in 2004 enacted R.C. 2317.43, the “Apology Statute.”  It provides – and only for medical providers, not for ordinary citizens – that if the medical provider makes a “statement of sympathy,” which includes pretty much all “statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence,” it is not admissible against that provider in a medical malpractice case.  

So the General Assembly meant to insulate a medical provider, when something bad happens from their actions, when they say “I’m sorry” or something like that, that the “apology” can’t be used against them in court.  The Statute serves the purpose of both allowing medical providers to make expressions of sympathy for what happened, even if it is not their “fault,” but also to prevent such statements from being used in court, so a judge or jury wouldn’t be allowed to decide if the provider was just expressing sympathy, or actually admitting they made a mistake. 

But what about when the provider doesn’t just express sympathy or sorrow for a tragic result, fault or no fault, but goes further, and comes closer to actually admitting they made a mistake – such as “I take full responsibility for this”?  It would seem, under the Rules of Evidence, this is admissible.  And it would seem that the Apology Statute would not apply to that, as it is not just an expression of sympathy, but appears to go farther. 

According to the Ohio Supreme Court, such a statement – accepting full responsibility for what happened – is not an “admission” of fault, but only an apology and therefore not admissible in court.  In April 2001 a physician performed a laparoscopic procedure on a patient’s (Jeanette’s) gall bladder.  Complications arose during the procedure resulting in the narrowing of the duct in the gall bladder (that allows for the waste product to be eliminated).  Jeannette was nonetheless released from the hospital, but three weeks later had to go back, due to jaundice and the obstructed gall bladder.  The same physician told her that she’d have to go through another surgery to fix it, and told her, “I take full responsibility for this.”  Jeannette went through the procedure and a lengthy period of recovery, and eventually filed suit against the surgeon. 

While the suit was pending, the Apology Statute was passed.  The surgeon’s attorney successfully convinced the court to exclude from the trial the surgeon’s acceptance of “full responsibility.”  After a trial to a jury – where the jury was not allowed to hear the surgeon’s statement – the jury decided in favor of the surgeon. 

On appeal, the Court of Appeals stated that the Apology Statute couldn’t even be applied, because to do so would be the unconstitutional retroactive application of the law; and that a jury should have been able to determine what the surgeon meant by taking “full responsibility.”  But the surgeon appealed to the Ohio Supreme Court, and the court disagreed, and sided with the trial judge, that the “acceptance of full responsibility” is the same as an “apology,” and therefore it was correct that the jury never heard those words from the surgeon.  The Court construed the circumstances of a distressed and upset patient, and a physician attempting to comfort them, and it was appropriate for the trial court to exclude from the jury’s consideration those circumstances. 

The result is another example of the burdens and roadblocks in the way of a patient trying to obtain justice from a physician’s mistake, and having a jury, not a judge, decide the facts, even when the physician, maybe, conceded their own fault.  The “rule” wouldn’t apply to a driver at the scene of a car accident, or a business owner who left something dangerous in the way of their customers, or an attorney who messed up their client’s case, who says,  “I accept full responsibility for this” accident.  It only applies to medical providers.  Maybe it would have been a different result (the Court did leave room for other situations) if the “distressed and upset” patient or family member had then asked the surgeon, “Do you mean it was your fault?”  Or if the patient had not been “distressed and upset” over being injured by the physician’s error.  Those cases are yet to be addressed. 

The case is Estate of Johnson v. Smith, 135 Ohio St.3d 440, 2013-Ohio-1507, and can be found at: 


This Blog is not intended to be legal advice on any matter, for any person, or for any particular case, and is my opinion on the subject matter under discussion and is based on my admission to practice in State and Federal courts in Ohio and Kentucky only. Many of the opinions expressed will have no application at all in any other jurisdiction other than the one discussed. Each person’s situation is different, and a personal consultation with a qualified attorney in the area of practice you are concerned about is necessary for a competent evaluation of your rights and obligations. Internet reading is never a substitute for an actual consultation with a competent lawyer. More information about my practice and background can be found at:


I hope readers find this information helpful and interesting.
Thomas G. Eagle, Attorney, licensed to practice in State and Federal courts in Ohio and Kentucky only.


Criminal Law: Ohio Self-Defense is not like Florida v. George Zimmerman

            There has been much discussion lately, in light of the trial of George Zimmerman in Florida, about self-defense laws.  The law of self-defense comes from the common law (historical judicial announcements of the law, sometimes over centuries.  As a result though, it is subject to modification by the legislatures, or by the courts over time.      

            Traditionally, from the common law any person is generally entitled to use “reasonable force” to defend themselves, or someone else, from the loss of property, or from bodily harm or death.  What force is “reasonable” depends of the circumstances, and particularly the force being defended.  One can’t for example use deadly force in response to less than deadly force.  One can’t use a gun (generally, with exceptions) to respond to a fist fight.  The responsive force can’t be “excessive,” that is, can’t be more than is necessary to prevent the harm being defended against.

          One is generally also not entitled to use “deadly force,” the greatest degree of force possible (that can result in serious bodily harm of death), just to defend one’s property (someone running away from a shoplifting, or someone picking up your purse or wallet and running away).  This leads many to repeat usually false stories about people breaking into one’s home, and then suing the resident when the resident uses force to defend the home.  These stories are generally false, because the common law, sometimes knows as the “Castle Doctrine,” is that one is allowed to assume that if someone is in their home, at night, without permission, that serious bodily harm may result, and therefore serious bodily harm in response is usually justified (“One’s home is their castle.”).  

            In addition, the common law generally requires, before one can use deadly force to defend even themselves, they must not be the aggressor in the confrontation, and they must first attempt to retreat if they can, unless they are in their own home where they have no duty to retreat – another part of the “Castle Doctrine.”   The philosophy behind these common law principles is that physical harm and violence is never preferred, and that bodily harm is not justified by loss of mere property.  It is deemed better to run away, or lose your property, and let the police and courts sort it out later, than to have anyone hurt or even killed if it is avoidable. 

            And in most states that follow this traditional common law, the person charged with the crime and who claims they were defending themselves has to prove their claim.  The State doesn’t have to prove it wasn’t justified defense. 

            The so-called “stand your ground” laws are legislative modifications of these common law doctrines.  They remove, in some cases, the “duty to retreat,” even in public, and extend the “Castle Doctrine” outside of one’s home.  Such laws are generally based on the principle that one should not be required to run away, and can fight, even kill if necessary, even in public, if sufficiently threatened.  And many of those laws also shift the burden of proof, requiring the State to prove the person wasn’t justified in defending themselves. 

            Such laws as have been recently discussed are not the law in Ohio, and a greatly different result may have occurred if the Zimmerman case were in Ohio.  Two recent cases illustrate this point. 

            In one case from Butler County, Ohio, an altercation occurred in a night club over someone’s girlfriend and an allegation of cheating.  During the fight, one of the persons, I’ll call them L., picked up a barstool and started swinging it as a weapon.  The other person, I’ll call them G., found a machete on the floor (allegedly – don’t ask me what kind of night club this is), and picked it up to defend himself from the barstool attack – instead of leaving the scene.  Using the machete, G. severed a finger from L.  G. was charged with Felonious Assault, a second degree felony, which is assault either with a deadly weapon or that causes serious bodily harm. 

            At the trial, G. tried to get the Court to instruct the jury that he was entitled to defend himself from the bar stool attack, and use the machete – “deadly force” – to do so.  The trial court refused, and G. was found guilty.  He appealed, arguing that he was entitled to self-defense and an instruction to the jury.  

            The Twelfth District disagreed, and affirmed the conviction.  Noting the Ohio precedent discussed above, G. wasn’t entitled to a self-defense argument.  Although part of the reason for denying that argument was that G. argued that he didn’t even use the machete but just “showed” it as a deterrent (denying he swung it), in which case it is inconsistent at the same time to argue what he did was in self-defense, in addition the evidence was clear that G. also didn’t resort to the deadly force as his only means of escape and avoiding injury, which is the law in Ohio.  Specifically by G.’s own testimony he did not go out the unlocked front door that was behind him, instead of fighting, he violated the “duty of retreat” because the use of force was not the only means available to avoid being injured himself.  Because G. could have just left, and had other means to diffuse the situation, he had no right to claim, argue, or have the jury instructed, on self-defense.  His conviction was affirmed. 

            The case is State v. Gomez, was decided July 1, 2013.  The links may change but the case can currently be found at: 


            In another recent case, two men got into an altercation on a public street in Cincinnati, over a debt.  S., who was owed the money, was sitting in his car and saw C., who allegedly owed the money, across the street.  S. got out of his car to confront C.  When C. refused to pay, S. started cussing him and threated to “kick his ass.”  C. then pulled a gun, told S. he “was going to die,” and shot S. at close range, and shot a couple more times when S. fell to the ground.  S. though did survive, although sustaining numerous serious injuries. 

            C. turned himself into police.  He claimed that he knew S. was known to carry a gun, and that he had his hands in his pockets during the confrontation.  C. also said that S. was known to have a violent history, a criminal record, and including gun charges.  He said he shot S. because he was afraid S. would shoot him first.  C. was charged with attempted murder and felonious assault, and was convicted at trial, but waived a jury so it was a judge or “bench” trial. 

            On appeal he argued he should not have been convicted, among other reasons because he only shot S. in self-defense.  The First District Court of Appeals agreed with the trial court, it was not self-defense.  First, C. only threatened to “kick his ass,” and according to witnesses never actually raised his hand to S., and in response S. pulled a gun and shot him several times.  And C. could also have just run away.  Self-defense, in Ohio, does not apply in those circumstances. 

            The case is State v. Carmen, was decided July 31, 2013.  The links may change but the case can currently be found at:


            These cases show that the law that was applied in the Zimmerman case would not have applied in Ohio and that in Ohio a much different result may have occurred.  To some extent, these cases also give grounds to argue against the laws that applied in Florida, resulting in street violence and maybe unnecessary harm. 

          More information about my practice and background can be found at:


I hope readers find this information helpful and interesting. 

Thomas G. Eagle, Attorney


Criminal Law: Dog Sniffs are “searches” under the Fourth Amendment

One of the most powerful tools the police have to investigate crime, but also that can be the most invasive of a person’s privacy, is the power to search, without a warrant.  The Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court, is supposed to limit that power, by prohibiting searches without a warrant, and prohibiting “unreasonable” searches and seizures of evidence.

It is common for police to use dogs to sniff out contraband, particularly drugs, and do so around cars and buildings.  In the past, it was unresolved if this constituted a “search” under the Fourth Amendment, and therefore requiring a warrant, or one of the numerous court-created exceptions to the warrant requirement.  In the jurisdictions where a dog sniff was not a search, the police could bring in a dog around a parked or stopped vehicle, or even a home, and if the dog “reacted” in the trained way to the presence of contraband, the officers would then search the car, or the home, without a warrant.  The theory was that because it was only the free and public air being examined, it was not an invasion of anything private and therefore not really a search — it was no different than looking at something in the public view, just using a nose instead of eyes.

On March 26, 2013, the United States Supreme Court resolved the controversy and found that indeed when a dog was used, in that case on a suspect’s front door, to sniff for drugs, it was a search, and therefore subject to Fourth Amendment protection.  The rationale was that the senses of a dog were no different than a planted GPS, or a thermal imaging device, which the Court had previously found also were searches.

The decision is a greater protection of persons and places in their homes from the power, and sometimes misused power, of the police, and is a victory for the advocates for personal rights and liberties over the power of law enforcement.

The link may change but the case is Florida v. Jardines, and can be found at:


More information about my practice and background can be found at:


I hope readers find this information helpful and interesting.

Thomas G. Eagle, Attorney


Criminal Law: Paying attention to details in criminal cases sometimes pays off

Criminal Law: Sometimes people criticize so-called “technicalities” in defense of criminal charges, because they feel like it somehow rewards a guilty person.  But more often than not, those “technicalities” are the heart of the United States Constitution, the Bill of Rights, or the State Constitutions, and the Statutes of the particular jurisdiction.  These are not “technicalities,” but important Rights Americans have that keep the police, prosecutors, and the Criminal Justice system honest to everyone who comes before it, whether guilty or not.  Paying attention to those rights, and the details of all “technicalities” can sometimes be overlooked, but can sometimes be rewarding to someone defending themselves, with or without an attorney.

Such a case was recently decided in the First District Court of Appeals for Hamilton County, Ohio.  In Ohio, a criminal charge or complaint has to be signed under oath by the charging party — usually a police officer, usually before a notary or a court clerk.  If it isn’t, the Court doesn’t have jurisdiction to prosecute the charges. 

On February 3, 2012, an undercover officer getting ready to run a prostitution “sting” operation (where officers pose as prostitutes to arrest prospective customers), filled out the date of the offense and signed the criminal complaint form, but left the details to be filled in by other officers later.  After an arrest was made, the Complaint was filled in and filed with the Court.  When this was discovered, the defendant requested the charge be dismissed for lack of jurisdiction — because the facts of the accusation, being filled in after the complaint was signed, could not have been signed under oath as required — the facts hadn’t even happened yet.

The trial court denied the motion for “technical” reasons (a Rule that requires some motions to be made before trial).  But the steadfast defendant and his attorney appealed that decision, after he was convicted, and the Court of Appeals agreed with the defendant: there was no jurisdiction, that defense can be made at any time, and dismissed the charges.

It is sometimes assumed that these “details” are in order, but sometimes they are not.  This is a case that demonstrates the value of a vigorous inquiry and attention to all details.  You never know what might turn up.  In this case the details, or the “technicalities” of the Law, prevented a prosecution that the Court did not even have jurisdiction to prosecute, because Police “fudged” the “details.”

The link may change but the case is State v. Allen, and can be found at: 


More information about my practice and background can be found at:


I hope readers find this information helpful.

Thomas G. Eagle, Attorney


Auto Insurance Law:  The Ohio Supreme Court recently decided a case related to a driver’s rights to make claims against their own insurance company when they are injured by someone without sufficient insurance to cover their losses.  Many drivers have “Underinsured” or “Uninsured” Motorists coverage (also called UM/UIM).  This is coverage the driver pays for, so that if they or others in the car or other insured persons get hurt by someone who does not have any, or enough, insurance, you have paid for a right of compensation from your own insurance company.  Many insurance companies though will find ways to avoid paying.

One of those avoidances was arguing that the actual wrongful party (the under/un-insured driver) can’t be held liable for some reason, and therefore because you, the innocent person, couldn’t recover anything against them, you can’t get any UM/UIM coverage, either.

One of those avoidances involved government immunity, that is the person who caused the injury was a government employee entitled to some kind of immunity from suit, which is also common. 

The Ohio Supreme Court this week decided a case which essentially construed a common UM/UIM policy to in fact allow, or maybe require, UM/UIM coverage even though the other driver was entitled to governmental immunity, getting rid of a common defense Insurance Companies would use.

The Decision can be found at:


The link is subject to change but the case is Marusa v. Erie Insurance.

Each driver should consult with their insurance agent to determine if UM/UIM coverage is right for them.  Many times a driver or passenger will find themselves seriously injured due to fault of someone else, and have no recovery because the responsible person is uninsured or underinsured, and UM/UIM coverage can prevent that.

More information about my practice and background can be found at http://www.eaglelawoffice.com.

I hope readers find this information helpful.

Thomas G. Eagle, Attorney

Auto Insurance Law, Personal Injuries: Having the right insurance coverage helps avoid losses



As a sole practitioner lawyer, but with clients who are individuals, and small businesses, I regularly get questions about current issues important to the kind of people I represent.  I am therefore going to start this blog with short articles about current issues that are important to families and businesses, and hope it is helpful and informative.

For readers who don’t know me, I am a general practitioner in Southwestern Ohio, with an emphasis on various forms of litigation, including family law, civil and commercial litigation, personal injury cases of all kinds, criminal cases, and all forms of trials and appeals.  I have appeared in dozens of courts in this area, including Butler, Warren, Montgomery, Preble, Hamilton, Clinton, Clermont, Miami, Greene, and others, and in Kentucky.

More information about my practice and background can be found at http://www.eaglelawoffice.com.

I hope readers find this information helpful.

Thomas G. Eagle, Attorney

Legal issues important to families and businesses