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As part of the tort reform initiatives some years ago, Ohio adopted what is frequently called the “Apology Statute” that is applicable in medical liability cases. The Ohio Supreme Court has upheld the protections outlined in the statute in the first case to reach the high court.

To help set the stage for the issue, physicians are unfortunately required from time to time to have discussions with patients or their families where a family member has died or serious complications have arisen, even though those consequences were a potential risk from the condition suffered by the patient or procedures associated with efforts to help the patient. In some limited circumstances, there is some question whether the negative outcome was just the normal progression of the disease or condition, or if the negative outcome may have been caused or prevented by action or omission by the physician or other health care provider.

As part of the physician’s empathy towards the patient and family, physicians frequently would express feelings of sympathy, condolences or other actions to be consoling to patients or families at a time of loss. Lawsuits, however, were filed and worked their way through the courts on the premise that if a physician said to a family, “I am sorry” or similar words, could that statement be interpreted as an admission by the physician that somehow the physician was responsible for the negative outcome.  Legally, the term is called “party opponent’s admission” or “an admission against interest.”  These events commonly occur, for example, when a party involved in a traffic accident admits to an officer taking the statement that they hit the other car.  That person then would have that statement used against them in a subsequent trial involving claims for damages from the auto accident.

Unlike a traffic case or a business case, physicians trained to help relieve pain and suffering, frequently are genuinely sorry for loss to a patient, although their statement of sorrow should not lead to an inference that the physician could have done anything differently that would have resulted in a potential different outcome. As you can imagine, an admission of wrongdoing has a powerful affect against a physician at trial.

In 2004, Ohio adopted the “Apology Statute,” which provides:

            In any civil action brought by an alleged victim of an unanticipated outcome of medical care***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 *** to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim, and that related 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 of an addition against interest.

Since the statute was adopted, a series of cases have been decided by trial courts and court of appeal interpreting the statute, but the statute had yet to be reviewed by the Ohio Supreme Court.

In Ohio, the state is divided into 12 districts for which there is a separate court of appeals hearing cases on appeal from trial courts in those various districts. A decision by one of the court of appeals is binding case authority only within that district, but may be considered in another district.  Occasionally, a district will interpret a statute or rule in a manner different than a decision by another appeals court.  When this occurs, it creates a conflict between the districts and if it is a matter of importance, the conflict is ultimately resolved by the Ohio Supreme Court.  It is under this conflict resolution that the court interpreted the provisions of the Apology Statute.

In the case in front of the court, a patient had been admitted to the hospital after attempting suicide. The attending physician had put the patient on a 15 minute observation schedule.  The next day, the patient’s husband visited at the hospital, unfortunately discovering his spouse to be in the process of attempting to hang herself, and the patient ultimately died. 

While the testimony was conflicting, the family claimed that the treating physician had told the family after the death that the patient had told him that she would keep trying to kill herself. The family claimed that the physician’s statement should be interpreted as an admission of fault.  The physician argued the Apology Statute should exclude the statement and the court ruled that statement was excluded from consideration at trial.  On appeal, the court in the Stewart case interpreted the Apology Statute to mean that not only can the physician express sympathy to the patient or representatives of the patient regarding the outcome, but also any admissions of fault would be excluded from trial within the protection of the statute.  The court upheld the decision of the trial court to exclude the statement.

By contrast, a decision in another court of appeals concluded that expressions of apology or sympathy were within the statute, but an “admission of fault” was beyond merely saying “I am sorry.” In the other case, the court found statements beyond “I am sorry” were a non-protected admission against interest that the physician may have been at fault, and the statements could be used at trial.

As the Supreme Court reviewed these two different interpretations, the Supreme Court concluded initially that the statute itself is unambiguous and the words actually mean what the words say. The Court then goes on to conclude, using standard definitions of apology, the statutory language is susceptible of only one reasonable interpretation.

 Under this plain and statutory language is susceptible of only one reasonable interpretation.  Under this plain and ordinary meaning of “apology,” for purposes of R.C. 2317.43(A), 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 Supreme Court decided that in Ohio, the statute would be interpreted in future cases to mean that any statement by a physician expressing condolences while at the same time also even inferring that the health provider may have been partially responsible, would be excluded from consideration at any subsequent trials if a claim was later asserted for malpractice.

We understand that in the moment, a physician supporting a grieving family member may not be analyzing each word or the phrasing of their sentence for future legal interpretations of the statements. We also understand that the literature supports findings that physicians who express sympathy or even an acknowledgement they could have done better, provides some relief and comfort to families, and frequently results in claims not being filed or resolution of claims if asserted at lower costs.  There are numerous publications and studies dealing with that issue.

The takeaway, however, is that as physicians are careful in clearly describing circumstances to patients, such as risks, potential side effects, and the like so that the patient has clear information, physicians should likewise be cautious in how they express their condolences or commiseration with a patient or family. Except in the most extreme cases, such as wrong site surgery, a physician who feels comfortable in having a conversation with patients should focus on the empathy for the loss and an expression that while not common, the outcome was a potential risk factor (if applicable).  While I still would not recommend it, even if the physician were to add comments that could be interpreted as an admission of wrongdoing such as “I could have done better,” the physician should have some comfort that the statute would exclude those statements from being used against the physician at trial.

If you would like copies of the statute or cases or have any questions concerning these important issues, please contact Scott P. Sandrock at 330-253-4367, spsandrock@bmdllc.com.

Stark County Medical Society, Fall 2017 Newsletter