Ohio Justices: Doctor’s Apology not Evidence of Malpractice

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Sympathetic statements by a doctor over a patient’s unexpected medical outcome can’t be admitted as evidence in medical malpractice cases filed after the date a law intended to outlaw their use went into effect in 2004, the Ohio Supreme Court has ruled.

In a unanimous decision, justices reversed an 11th District Court of Appeals ruling that found such a “medical apology” should have been admitted in a case filed in 2007 because the doctor’s statement was made in 2001, before the law went into effect.

Justices said lawmakers were “clear and unambiguous” that the prohibition applied to all suits filed after the effective date of Sept. 13, 2004, regardless of the date of the medical conduct in question. The law prohibits introduction of sympathetic statements or gestures made by a health care provider in any lawsuit brought by an alleged victim of an unanticipated outcome of medical care.

The case involved complications in the gall bladder surgery of Portage County resident Jeanette Johnson. She sought to admit a statement by her doctor, Randall Smith. It happened a month after her surgery when Johnson returned to the hospital because of complications resulting from a bile-duct injury that occurred during surgery, one of the procedure’s known risks. While Johnson was upset and emotional over her predicament, Smith took her hand and attempted to calm her by saying, “I take full responsibility for this. Everything will be OK.”

Johnson initially argued that Smith’s statement wasn’t an apology or expression of sympathy and therefore wasn’t covered under the statute. She said it was an admission of negligence. Later, she argued the medical sympathy statute didn’t apply because the incident occurred before it was enacted.

A trial court ruled that evidence regarding the doctor’s statement would be inadmissible at trial and a jury returned a general verdict in favor of Smith. The 11th District reversed the trial court, ruling it had applied the medical apology statute retroactively when lawmakers had not stated that was the law’s intent.

The Supreme Court affirmed that Smith’s statement was an apology falling under the statute and said that the date of the lawsuit, not the event, is what’s significant.