Admissions of fault cannot be used in med mal cases, says Ohio Supreme Court
October 5, 2017 - Kate Halloran
Apologies made by health care providers after an adverse medical outcome are prohibited by state law from being used in medical negligence cases, the Ohio Supreme Court has ruled—even when those apologies include admissions of fault or liability. Resolving a question raised by two conflicting lower appellate court decisions about what type of apology the statute covers, the state high court concluded that the statute unambiguously covers all apologies and prevents use of such statements in litigation. (Stewart v. Vivian, 2017 WL 4082064 (Ohio Sept. 12, 2017).)
Michelle Stewart was admitted to the psychiatric unit of a hospital in Ohio after she attempted suicide. The attending physician, Rodney Vivian, determined that staff should monitor Stewart every 15 minutes. The following evening, Stewart’s husband arrived at the hospital to visit her and found her unconscious from attempting to hang herself. Her family removed her from life support several days later, and she died.
Her husband, Dennis Stewart, sued the hospital and Vivian for medical malpractice and wrongful death, among other claims. The case against the hospital was settled, but the claims against Vivian proceeded to trial. Before trial, Vivian moved to exclude statements he made to Michelle’s family after her death under Ohio statute 2317.43—the so-called “apology statute.” Vivian contended that anything he said was intended as an expression of “commiseration, condolence, or sympathy,” and that under the statute, it could not be used as evidence of admitting negligence. Despite discrepancies among the witnesses’ testimony about what Vivian said, the plaintiff argued that his statements were more than mere offers of condolence. But the trial court agreed with the defendant and excluded the statements, and the jury found in the defendant’s favor.
The plaintiff appealed, and the state appellate court determined that the statute’s definition of “apology” was ambiguous and could include admissions of fault. Based on dictionary definitions and legislative history, the court concluded that all apologies, including ones with admissions of fault, were intended to be protected under the statute. Before this case, an appellate court in another district reached a different result. In that case, Davis v. Wooster Orthopaedics and Sports Medicine, Inc., the court found that the statute covers “pure expressions of apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, but not admissions of fault.”
After learning of the conflicting decisions, the court handling the Stewart case certified to the Ohio Supreme Court the question of whether the apology statute included admissions of fault. The statute provides that “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 . . . are inadmissible as evidence of an admission of liability.”
Even though both lower appellate courts determined the statute’s language is ambiguous, the state high court disagreed. Since the statute does not provide a definition, the court relied on an entry in Webster’s dictionary for “apology” that includes the acknowledgement or admission of a wrong or injurious act. The court explained that the state legislature did not impose limits on the statute to cover only “pure” expressions of sympathy or condolence. Because the statute is not ambiguous, the court continued, there was no need to delve into legislative history or intent to determine the statute’s scope—the dictionary entry was sufficient to support its interpretation that based on the statute’s plain language, it was intended to include admissions of fault or liability.
The court’s Chief Justice Maureen O’Connor, however, raised concerns about the ruling’s consequences. While she concurred with the majority’s understanding of what the apology statute encompasses, she dissented from the holding that Vivian’s statements were apologies at all. Describing the discrepancies at trial over what witnesses—including Stewart’s husband, her sister, and Vivian—recalled about Vivian’s statements, she argued that there was inadequate evidence to conclude that what Vivian said amounted to an apology covered by the statute. O’Connor wrote that she did not believe “the statute must be rigidly construed to cover only those statements including the words ‘I apologize’ or ‘I sympathize,’” but that without some guidelines or limits, “a health-care provider could render any statement inadmissible simply by affirming a subjective intent to apologize or to console.”
The attorneys who represented the plaintiff on appeal cautioned that “dictionaries can be misleading because they lack context. While the use of dictionaries can certainly be helpful, and while this court and others have certainly looked to dictionaries at times in the past, the dictionary definition of a word alone should not be dispositive—and this is especially true when the dictionaries consulted are not legal dictionaries.”