COLUMBUS, Ohio (Legal Newsline) – Doctors and other health care professionals will continue to be able to express sympathy without the threat of persecution after the Ohio Supreme Court’s recent ruling in Stewart v. Vivian.

The Ohio Supreme Court on Sept. 12 affirmed that if a health care provider apologizes, commiserates, admits liability or fault to a patient or a patient’s relatives or guardians during or after the course of treatment(s), those statements cannot be used as evidence in a civil lawsuit. 

The ruling is in accordance with Ohio’s “Apology Statute” (R.C. 2317.43).

According to the opinion, Michelle Stewart was hospitalized after attempting suicide and later died in February 2010. Dr. Rodney Vivian was the admitting physician when Michelle was taken to the Mercy Hospital Clermont psychiatric unit after she attempted suicide on Feb. 19, 2010. 

Vivian ordered staff to check Stewart every 15 minutes, but the opinion states that the next evening her husband Dennis Stewart found her unconscious in her room after an attempted hanging. Two days later Vivian went to the ICU where Michelle was transferred and placed on life support, and what he allegedly said to her family sparked the lawsuit. Michelle Stewart died Feb. 23, 2010.

Dennis Stewart filed suit against Vivian and Mercy for medical malpractice, loss of consortium, wrongful death and loss of chance of survival. Mercy settled, but the case against Vivian went to trial. The trouble came when in the trial, the court heard very different accounts of what happened. 

Dennis, Michelle’s sister Stacey Sackenheim and Vivian all testified, but the trial court ultimately decided that Vivian’s recount was more credible, the opinion states. The court stated that although he had made an attempt at commiseration, it was not admissible under the apology statute.

The opinion states Stewart filed an appeal and the 12th District Court of Appeals upheld the court’s decision, agreeing that Vivian’s statements should not have been included at trial. 

The appellate court, as did the trial court, also emphasized that it thought that R.C. 2317.43 was unclear because the definition of “apology” “may or may not include an admission of fault." The court deliberated on the statute’s legislative history and concluded that the General Assembly’s intent was to protect all statements of apology — including those admitting fault — under R.C. 2317.43.

Ohio's apology statute, which was designed to improve patient and provider relationships, states “In any civil action brought by an alleged victim of an unanticipated outcome of medical care or in any arbitration proceeding related to such a civil action any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that are made by a healthcare provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim …. are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.”

The state Supreme Court took the case for review and ultimately upheld the decision, saying that the apology statute is not ambiguous. 

Justice Sharon L. Kennedy said in the opinion that “expressing apology is a statement that expresses a feeling of regret for an unanticipated outcome of the patient’s medical care and may include an acknowledgment that the patient’s medical care fell below the standard of care.” 

The court reasoned that the legislative intent was not to prohibit the admission of all statements of fault by medical professionals, prohibiting the admission of all admissions of liability or statements, but it limits the protected statements to those “expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence.” 

Kennedy wrote “Because 'apology' in this sense does not refer to a statement, it is obviously not the meaning intended by the General Assembly in the apology statute.”

In the dissent, Chief Justice Maureen O’Connor, with Justice William O’Neill agreeing, said that Vivian’s statements did not express apology or fault and should have been admitted for evidence, going so far as to call the majority decision an abuse of discretion. 

“Although I do not believe that the statute must be rigidly construed to cover only those statements including the words 'I apologize' or 'I sympathize,' there must be a limit based on the actual content of the statements and not the intention of the speaker. If not, a health-care provider could render any statement inadmissible simply by affirming a subjective intent to apologize or to console. Wherever we draw the line on what constitutes a 'statement expressing apology,' it should not encompass vague statements that, at best, might constitute expressions of shock and surprise but that have no indicia of apology, commiseration, or regret," O'Connor wrote.

The apology statute was declared by the Supreme Court as decidedly “unambiguous,” but whether it will undergo changes as O’Connor desired remains to be seen.

Ohio Supreme Court case number 2017-Ohio-7526

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