Ohio SC: Doctor's apology inadmissible in med-mal case

COLUMBUS, Ohio (Legal Newsline) - The Ohio Supreme Court held on April 23 that a statement of apology made by a doctor to a patient was inadmissible in a malpractice action subsequently filed by the patient.

The decision reversed a court of appeals ruling and sent the case back to the trial court to reinstate the verdict of the jury.

The opinion was authored by Justice Judith Ann Lanzinger. Although the vote of the seven-member court was unanimous, two justices, Paul E. Pheifer and Terrence O'Donnell, concurred in judgment only.

Dr. Randall Smith performed gall bladder surgery on Jeanette Johnson on April 24, 2001. Due to complications resulting from injury to a bile duct, the planned laparoscopic surgery was converted to an "open procedure" to repair the duct. Johnson was informed of the injury to the bile duct and the manner in which it was repaired after the surgery, according to the opinion.

Johnson returned to the hospital for complications related to the bile duct injury approximately one month later and her treatment required that she be transferred to another facility. The opinion states that after she became upset, Smith took her hand and said, "I take full responsibility for this. Everything will be okay."

Johnson and her husband filed a medical malpractice action against Smith in August 2002 but they voluntarily dismissed the action in 2006. They filed a new complaint in July 2007, alleging that Smith had rendered negligent medical treatment to Johnson and that her husband had sustained a loss of consortium.

After trial was scheduled in 2010, Smith submitted a motion in limine to prohibit the introduction of any evidence regarding his statement of apology, asserting that the apology was an expression of sympathy that could not be admitted into evidence under R.C. 2317.43.

"R.C. 2317.43, which precludes the admission of statements of apology by a healthcare provider, applies to any cause of action filed after September 13, 2004," the opinion states.

The trial court ruled that the evidence regarding Smith's statement would be inadmissible at trial and on June 18, 2010, the jury returned a general verdict in favor of Smith on the two claims asserted by the Johnsons.

The Johnsons appealed to the Eleventh District Court of Appeals and it reversed the trial court's judgment in a 2-1 decision. The majority held that the trial court had erred by applying R.C. 2317.43 retroactively to exclude Smith's statement which he had made prior to the enactment of the law.

The dissenting judge focused not on when Smith made the statement but on when the complaint was filed. In his view, the statute was applicable because the Johnsons' civil action was not brought until 2007, which was after the effective date of the statute.

After the appeals court ordered a new trial on the merits, Smith made the discretionary appeal to the state's high court.

"We accepted Dr. Smith's discretionary appeal," Lanzinger wrote, "and now consider two propositions of law:

"Proposition of Law No. 1: Ohio Revised Code § 2317.43 applies to any cause of action commenced or filed after the enactment date of the statute and serves to preclude the introduction into evidence [of] a healthcare provider's sympathetic statements and gestures.

"Proposition of Law No. 2: Ohio Revised Code § 2317.43 is procedural in nature and applies retroactively to preclude the introduction into evidence [of] a healthcare provider's sympathetic statements and gestures.

"The two propositions of law can be reduced to one issue: Does R.C. 2317.43 apply to the statement made by Dr. Smith to apologize to and console Mrs. Johnson?

"The General Assembly, in enacting R.C. 2317.43, prohibited the introduction of any sympathetic statements and gestures made by a healthcare provider in any civil action 'brought' by an alleged victim of an unanticipated outcome of medical care. The effective date of the statute was September 13, 2004."

The Johnsons argued that they had "brought" the civil action in August 2002 when they filed the original complaint against Smith.

"When an action has been voluntarily dismissed, Ohio law treats the previously filed action as if it had never been commenced. The action filed by the Johnsons in 2002 must be treated as if it never existed," the opinion says.

'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."

Having determined that the statute applied to the statement, the court then looked at whether Smith's statement was properly excluded.

"In this case, the trial court heard testimony from witnesses before ruling on the motion in limine. Based upon its observation, the court concluded that 'the statements and gestures and actions are covered under 2317.43," the opinion says.

"The court of appeals, in reviewing the decision, did not analyze under an abuse-of discretion standard whether the trial court had acted unreasonably, arbitrarily, or unconscionably in reaching its conclusion. Thus, it was improper to reverse the trial court's decision to exclude Dr. Smith's statement.

"The trial court had determined that Dr. Smith was faced with a distressed patient who was upset and made a statement that was designed to comfort his patient. This is precisely the type of evidence that R.C. 2317.43 was designed to exclude as evidence of liability in a medical-malpractice case.

"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."