Apology Law: Doctor’s Statement to Patient Is Protected, Ohio Supreme Court Rules

​A surgeon's statement to a distressed patient—"I take full responsibility for this. Everything will be OK."—made after the patient experienced complications related to bile duct surgery, is not admissible evidence in a medical negligence trial against the surgeon, the Supreme Court of Ohio ruled. At issue was whether Ohio's "apology law," enacted in 2004, applied to the case. The physician's statement was made in 2001; the patient and her husband initially filed their lawsuit in 2002, voluntarily withdrew it in 2006, and filed another lawsuit against the surgeon in 2007. Before trial began in 2010, the defendant surgeon filed a motion requesting the court to prohibit the introduction of his statement into evidence. After hearing witness testimony about the context in which the statement was made—the patient was distressed, and the physician held her hand in a gesture of comfort—the trial court ruled that the statement was inadmissible. The jury found the physician was not negligent. On appeal, a higher court concluded the trial court erred in applying the 2004 statute to the statement made in 2001. The physician appealed to the Supreme Court of Ohio.

The court explained that statute precludes statements made by a healthcare provider expressing apology, sympathy, condolence, commiseration, compassion, or a general sense of benevolence that relate to injury, pain, discomfort, suffering, or death as a result of an unanticipated outcome of medical care from being admitted into evidence as an admission of liability or an admission against interest in a civil action or arbitration "brought" by the alleged "victim." The high court concluded that the date that the lawsuit was "brought" (2007) was controlling, and since this action was filed after the 2004 statute was enacted, the statute applied to the case. The court also concluded that the statement was exactly the type of statement that the apology law was meant to exclude from evidence. Thus, the court reinstated the verdict in favor of the physician. (Estate of Johnson v. Randall Smith, Inc.,slip...