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.