Ohio Revised Code 2317.43 was enacted by the Ohio General Assembly in September 2004.  The purpose of the Apology Statute is to prohibit the use of a physician’s statements of sympathy as evidence in a medical malpractice action.  The statute provides that all “statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence” made by a medical provider to a patient or patient’s family as a result of an unanticipated adverse outcome are “inadmissible as evidence of an admission of liability or as evidence of an admission against interest.”  The language of the Apology Statute did not draw a clear distinction as to whether an admission of fault is admissible as a party admission or admission against interest in subsequent litigation.    The statute failed to clearly distinguish between the admissibility of a physician’s statement of sympathy and one acknowledging fault.

Recently the Ohio Supreme Court decided the case of Estate of Johnson v. Smith.  The issue in this case was Ohio’s Apology Statute, R.C. 2317.43 and whether it applies retroactively to statements of apology, sympathy, and compassion made by physicians in the wake of an unfortunate medical outcome and whether the statute was intended to exclude statements of fault within the scope of its protection.  The Eleventh Court of Appeals held that the statute did not apply retroactively to exclude the statement “I take full responsibility” made by a physician for causing post surgical medical complications to a patient.  The appeals court held the physician’s statement was admissible as a party admission, an admission against interest and that its probative value outweighed any danger of unfair prejudice under the Ohio Rules of Evidence.  The doctor appealed the decision to Ohio Supreme Court.  The Ohio Supreme Court issued a decision holding that R.C. 2317.43 applies to any cause of action filed after September 13, 2004.

There is no doubt doctors have been instructed to watch what statements they make following any incident where malpractice may be an issue.

If you or a loved one believes you have been a victim of medical malpractice, contact Scott Mullins & Company, an experienced medical malpractice law firm in Cincinnati, to discuss your case.