Ohio Supreme Court Interprets the “Apology Statute”

April 24, 2013

Estate of Johnson v. Randall Smith ____ (Ohio, 2013)

Yesterday, Ohio Supreme Court delivered a decision interpreting the “Apology Statute” – R.C. 2317.43 – that prescribes the following:

“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.”

This statute was invoked by a doctor defending against medical malpractice suit filed by his patient’s estate. The patient experienced complications after a gall bladder removal surgery and became very upset. The doctor tried to calm the patient by holding her hand and saying “I take full responsibility for this. Everything will be okay.” The plaintiffs offered this statement into evidence as an express or implied admission of malpractice by the doctor. They counted on the fact that the doctor made the statement before the Apology Statute came into effect.

The Court ruled that the Apology Statute applies to all medical malpractice actions filed after the statute’s effective date: September 13, 2004. The fact that the doctor made the disputed statement prior to that date was held to be immaterial. The Court categorized the statute as a change of adjudicative practice and procedure that “is properly applied prospectively if it has been enacted after the cause of action but before the trial of the case.” Hence, in any medical malpractice action filed after the statute came into effect, the doctor is entitled to suppress evidence of her sympathetic and compassionate gestures toward the patient.

This decision is correct in its bottom line. I have some doubts about the Court’s categorization of the Apology Statute as a regulation of procedure and evidence. The statute has a broader ambition: it ascribes legal meaning to the way in which many doctors deal with distressed patients as part of their practice of medicine. When doctors convey sympathy, compassion or regret to a distressed patient, they follow their professional practice. Admission of doctors’ expressions of compassion, sympathy and regret into evidence would chill this good practice as factfinders might interpret it as an acknowledgment of fault. The statute’s primary purpose is to remove this chilling effect. The statute therefore should be categorized as substantive.

The procedure/substance divide matters for diversity suits filed against doctors. Categorizing Ohio’s Apology Statute as procedural or evidential would make it inapplicable in those suits, as it will be trumped by the Federal Rules of Evidence (pursuant to Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)). Under these rules, courts will have a broad discretion to admit doctors’ expressions of compassion, sympathy and regret into evidence (see Fed. R. Evid. 401, 403). On the other hand, categorizing the statute as “substantive” would require federal courts to grant its protection to Ohio doctors.

This issue is unsettled as courts are yet to develop a consistent differentiation between “substance” and “procedure”: see my article The Trial-Time/Forum Principle and the Nature of Evidence Rules, in Current Trends in Criminal Procedure and Evidence 81 (2009).