Ohio Supreme Court Rules on the State's Apology Statute

The Ohio Supreme Court of Ohio ruled in a 7-0 decision today (April 23) that an expression of sympathy by a physician to a patient regarding an unanticipated medical outcome may not be admitted as evidence of liability in any medical malpractice lawsuit initiated after September 13, 2004 the effective date of legislation prohibiting such evidence.

The ruling in Smith v. Johnson represented another favorable ruling in a series of nearly a dozen Supreme Court appeals, supported by joint amicus appearances  by the Ohio Osteopathic Association, the Ohio Hospital Association and the Ohio State Medical Association. It reversed a ruling by the Eleventh Court of Appeals in a malpractice case involving an incidence that occurred in 2001, three years before the apology statute became law. 

The case involved an injury that occurred during a gall bladder surgery that was scheduled to be done laparoscopically. When the  common injury occured, the physician converted to an “open procedure” to repair the duct and later explained to the patient the manner in which the injury had occurred and the manner in which he had repaired the duct. One month later the patient returned to the hospital because of complications that required transfer to a second hospital.  When the patient became emotional, the doctor took the patient's hand and said, “I take full responsibility for this. Everything will be okay.”

A lawsuit was subsequently filed in August 2002, and the plaintiffs voluntarily dismissed that action in September ,2006. They filed a new complaint July 26, 2007,  alleging negligent medical treatment and  a loss of consortium, and atempted to introduce the apology statements in 2010 during a jury trial. The trial court ruled that any evidence regarding the doctor’s statement would be inadmissible at trial, since it was covered by the apology statute.

When the jury returned a general verdict in favor of the physician, the plaintiffs appealed the case to the Eleventh District Court of Appeals, arguing the apologetic statements should be allowed.  The Appeals Court reversed the trial court’s judgment, holding that the trial court had erred in applying the apology clause  because the General Assembly had not expressly stated its intent that the statute should apply retroactively. 

In today’s unanimous decision, Justice Lanzinger wrote: “The language of RC. 2317.43(A) is clear and unambiguous. By its express terms, R.C. 2317.43 applies to ‘any civil action brought’ by persons described in the statute. This means that the statute applies to a civil lawsuit filed after the effective date of the statute...Dr. Smith’s statement was properly excluded pursuant to R.C. 2317.43. We therefore reverse the judgment of the Eleventh District Court of Appeals and remand the case to the trial court to reinstate the jury’s verdict and the trial court’s judgment.”


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