octor's Apology Ignites Legal Ping-Pong Match
The Ohio Supreme Court ruled last month that state doctors who extend an apology to patients can't have that apology used against them in a medical liability suit, according to an Associated Press article that ran on the Website of Insurance Journal.[3]
The high court ruling stems from a malpractice suit filed in 2007. In that case, Portage County resident Jeanette Johnson claimed she was injured by Dr. Randall Smith during a 2001 gallbladder surgery. At trial, the plaintiff sought to admit into evidence a postoperative statement by Smith in which he said that he took "full responsibility" for the injury and that "everything would be OK."
But before the plaintiff could proceed, she first had to prove that Smith's statement was in fact admissible at trial. That's because an Ohio statute that took effect in 2004 expressly outlawed the use of medical apologies in this way.
To support her motion, the plaintiff, through her attorneys, put forth 2 successive lines of argument. First, she argued that because the defendant's statement to her was actually an admission of guilt rather than an apology or an expression of sympathy, the Ohio statute didn't apply. Later, she presented a second argument, maintaining that the statute didn't apply because the adverse incident occurred in 2001, 3 years before the statute went into effect.
The court disagreed, however, ruling that defendant's statement wasn't admissible at trial. A jury subsequently found in favor of the defendant, Smith, on the plaintiff's claims against him.
An appeals court reversed the lower court's finding on the evidence, though, ruling that nowhere in the language of the apology statute had lawmakers indicated that it could be applied retroactively -- that is, to incidents of alleged medical malpractice that had taken place before 2004, when the statute took effect.
But the state's high court was unconvinced, and in last month's ruling it made clear why. First, it said that Dr. Smith's statement was in fact an apology under the definition spelled out in law. Second, it held that although the event itself took place in 2001, the plaintiff filed her malpractice suit against the defendant in 2007, which for the purposes of the law was the significant date.
"The trial court had determined that Dr. Smith was faced with a distressed patient who was upset and made a statement that was designed to comfort his patient," Justice Judith Ann Lanzinger wrote in her majority opinion. "This is precisely the type of evidence that [the medical apology statute] was designed to exclude as evidence in a medical-malpractice case.