May 1, 2013

162017_132140396847214_292624_nIn its decision filed on April 23, 2013, the Supreme Court of Ohio (“Ohio Supreme Court”) held that a surgeon’s statement to his patient that “I take full responsibility for this. Everything will be okay” after he performed gall bladder surgery on her that resulted in complications was inadmissible during the subsequent medical malpractice trial because Ohio’s “apology law,” R.C. 2317.43, allows healthcare 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.

The Underlying Facts

On April 24, 2001, the medical malpractice defendant performed surgery on the woman to remove her gall bladder. The surgery was supposed to be done laparoscopically but was converted to an open procedure when the patient’s common bile duct was injured during the procedure. The surgeon explained to the woman the manner in which the injury had occurred and the manner in which he had repaired the common bile duct. Injury to the common bile duct is a known risk of laparoscopic gall bladder surgery but may also be due to medical negligence.

One month later, the woman returned to the hospital due to complications resulting from the common bile duct injury. Her treatment required that she be transferred to another hospital. Before the transfer, the woman became upset and emotional. In an effort to console her, the surgeon took the woman’s hand and attempted to calm her by saying, “I take full responsibility for this. Everything will be okay.”

Ohio’s Apology Law

R.C. 2317.43(A) 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 health care 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, and that relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or as evidence as an admission against interest.

The trial judge in the case precluded the medical malpractice jury from considering the defendant-surgeon’s statement to the woman, “I take full responsibility for this. Everything will be okay,” citing Ohio’s apology law. The medical malpractice jury returned a verdict in favor of the medical malpractice defendant.

The medical malpractice plaintiffs appealed to the Eleventh District Court of Appeals (the intermediate appellate court), which reversed the trial court’s judgment, holding that the trial court had erred in applying R.C. 2317.43 retroactively to exclude the surgeon’s statement, and further held that the medical malpractice jurors could have determined that the statement “I take full responsibility for this” when taken in context meant that the surgeon was admitting fault. Therefore, the Court of Appeals determined that the statement should have been admitted because its probative value was not substantially outweighed by the danger of unfair prejudice, and the Court of Appeals ordered a new trial on the merits.

The medical malpractice defendant thereafter appealed to the Ohio Supreme Court.

The Ohio Supreme Court determined that the apology law was applicable to the case and that the trial court did not act unreasonably, arbitrarily, or unconscionably in reaching its conclusion that the apology law applied because the surgeon was faced with a distressed patient who was upset and made a statement that was designed to comfort his patient, which was precisely what the apology law was designed to exclude as evidence of liability in a medical malpractice case. Therefore, the Ohio Supreme Court held that the surgeon’s statement was properly excluded during the medical malpractice trial.

The Ohio Supreme Court’s opinion in this case can be read by clicking here.

If you or a family member may have been harmed due to medical negligence in Ohio or in another U.S. state, you should promptly seek the advice of an Ohio medical malpractice attorney or a medical malpractice attorney in your state who may agree to investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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