Ohio’s Apology Statute May Include Admissions of Fault

Stewart v Vivian, Slip Opinion No. 2017-Ohio-7526:

The Ohio Supreme Court issued an opinion this week that provides needed and helpful clarification of Ohio’s apology statute (R.C. 2317.43). The ruling excludes from admission into evidence in a medical malpractice trial a physician’s apology that might also include an admission of fault.
The Court ruled 5-2 that the apology statute is unambiguous and that “a statement 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 two dissenting justices, Chief Justice O’Conner and Justice O’Neill, concurred with this holding and description of a “statement of apology,” but disagreed that the physician’s statements in this case met the description.

In the case, a patient committed suicide while under observation in the hospital. The physician made certain statements in the ICU, including an admission that the patient told him that she wanted to kill herself. The physician argued that the statement was part of an apology that should be excluded from evidence and the plaintiffs argued that the statement could be considered a statement of fault that should be admitted. The trial and appellate courts treated the statement as an ineffectual attempt at commiseration and excluded the statements from the jury under the apology statute. 

Other Ohio appellate district courts had ruled that only apology statements should be excluded under the statute and statements of fault should be admitted. The Ohio Supreme Court recognized this conflict among the districts and accepted the case to resolve the conflict. The OSMA and other amici argued that the statute is not ambiguous and that it was correct to exclude Dr. Vivian’s statements under the apology statute.

The controversy around the meaning of the apology statute also led the OSMA to advocate for clarification of the meaning in pending tort reform legislation, HB 7. Since the decision clarifies the confusion, there is less need for a statutory fix to R.C. 2317.43 and the OSMA legislative advocacy efforts can focus on other important aspects of tort reform such as “loss of chance” claims and eliminating frivolous lawsuits.