The Akron Legal News

Supreme Court rules apology statute protects surgeon's comments to patient

JESSICA SHAMBAUGH
Special to the Legal News
Published: May 1, 2013

The Supreme Court of Ohio recently decided that a doctor’s apology or consolation to a patient cannot be used against him or her in a malpractice suit.

An Ohio statute enacted in September 2004 prohibits an apology from being used against a health-care provider in the event of a malpractice action.

The justices ruled Tuesday that even though the apology took place prior to that statute’s enactment, because the action was not brought until after that date, that statute applies.

“Also known as the apology statute, R.C. 2317.43 provides opportunities for health-care providers to apologize and console victims of unanticipated outcomes of medical care without fear that their statements will be used against them in a malpractice suit, by making the statements inadmissible as evidence of an admission of liability or a statement against interest,” Ohio Supreme Court Justice Judith Lanzinger wrote for the court.

Case background states that Dr. Randall Smith removed Jeanette Johnson’s gall bladder in April 2001.

During the surgery, Johnson’s common bile duct was injured, which was a known risk with her particular surgery.

Smith was forced to change the laparoscopic surgery to an open procedure to repair the duct and later explained the situation to Johnson.

Johnson later suffered complications from the bile-duct injury and returned to the hospital about a month after her surgery. After being told she would be transferred to another hospital, Johnson became upset.

Smith consoled Johnson by taking her hand and stating “I take full responsibility for this. Everything will be okay,” according to case summary.

Johnson and her husband filed a medical-malpractice action against Smith in August 2002, but voluntarily dismissed the case in September 2006. They filed a new complaint in July 2007 and argued that Smith was negligent in his medical treatment.

Prior to a jury trial, Smith moved to suppress any evidence about his apology to Johnson.

He contended that the statement was protected by R.C. 2317.43.

In response, Johnson argued that the statement was an admission of Smith’s negligence rather than an apology and that the statement occurred three years before the statute was enacted and was therefore admissible.

Johnson’s attorney, Antonios Tsarouhas, of Perantinides and Nolan Co. LPA, argued the statute should not apply because it would give a unique class of individuals the “opportunity and license to mislead.”

“So long as an admission of fault is coupled with some act or gesture of sympathy, then the health-care provider can say anything it wants to in order to statedly gain the patient’s trust,” Tsarouhas said in oral argument.

The Portage County court heard testimony from three witnesses and determined that the statement was inadmissible.

A jury found in favor of Smith and Johnson appealed to the 11th District Court of Appeals.

In a 2-1 decision, the district court ruled that the apology statute could not be retroactively applied, reversed the trial court’s judgment and ordered a new trial.

Smith’s attorney, Bret Perry of Bonezzi, Switzer, Murphy, Polito and Hupp Co. LPA, called that a “tortured interpretation. He argued that such an interpretation would have far-reaching implications and threaten the purpose of the statute. He stated that the spirit of the statement was acknowledged at trial, but introducing the statement itself would give the jury the wrong impression.

“For the jury to hear ‘I accept responsibility’ without being permitted to hear the context — I’m sorry, I’m compassionate, I’m holding your hand, I’m rubbing your back — it worsens the impact before the jury. It almost eviscerates the purpose of the statute,” Perry stated in oral argument.

The justices accepted Smith’s discretionary appeal to consider if his statement to apologize was protected under R.C. 2317.43.

“The question before the court is whether R.C. 2317.43, which became effective on Sept. 13, 2004, applies to a statement of apology made in 2001 but offered in evidence in a case that was not filed until 2007,” Lanzinger wrote.

The justices held that the statute applied to “any civil action brought by an alleged victim.”

They maintained that the application of the statute could be determined by that phrase.

Johnson argued that she “brought” her civil action in 2002. The justices, however, disagreed because she voluntarily dismissed that action and held that the 2002 case must be treated as if it did not exist.

“The Johnsons ‘brought’ or commenced this civil action upon the filing of their complaint on July 26, 2007. When this action was brought by the Johnsons, R.C. 2317.43 had been in effect for almost three years,” Lanzinger stated.

The high court ruled that the 11th District improperly considered only the date of Smith’s statements when determining the statute’s applicability.

It stated that the statute applied to cases filed after its effective date, including Johnson’s case brought in 2007.

The justices further determined that the trial court did not abuse its discretion in excluding Smith’s apology because it heard witness testimony and based its decision on observations made during that testimony.

“We therefore reverse the judgment of the 11th District Court of Appeals and remand the case to the trial court to reinstate the jury’s verdict and the trial court’s judgment.”

The case is cited Estate of Johnson v. Randall Smith Inc., case No. 2013-Ohio-1507.

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