September 18, 2013
The Apology Statute

by Justice Paul E. Pfeifer

When Jeanette Johnson had her gall bladder removed on April 24, 2001, a seemingly routine surgery instead ended up leading to a medical malpractice case that, years later, came before us – the Supreme Court of Ohio.

Dr. Randall Smith performed the surgery, which was scheduled to be done laparoscopically. But when Jeanette’s common bile duct was injured during the procedure (a known surgical risk), Dr. Smith converted to an “open procedure” to repair the duct. After the surgery, Dr. Smith explained to Jeanette how the injury had occurred and how he had repaired the duct.

One month later, Jeanette returned to the hospital because of complications resulting from the bile-duct injury. Her treatment required that she be transferred to another hospital. Before the transfer, she became upset and emotional. Dr. Smith took her hand and attempted to calm her by saying, “I take full responsibility for this.  Everything will be okay.”

As a result of her troubles, Jeanette and her husband, Harvey, filed a medical-malpractice action against Dr. Smith in 2002. They voluntarily dismissed that lawsuit in 2006. But in 2007, they filed a new complaint, alleging that Dr. Smith had rendered negligent medical treatment to Jeanette. Harvey further alleged that he had sustained a loss of consortium. (Loss of consortium means the loss of benefits that a spouse is entitled to receive, including companionship, affection, and the conjugal fellowship of husband and wife.)

A jury trial was scheduled for June 2010, but before it began, Dr. Smith submitted a motion to prohibit the introduction of any evidence regarding his statement of apology to Jeanette before her transfer to the second hospital. Dr. Smith asserted that his statement constituted an expression of sympathy that could not be admitted into evidence under Ohio’s “apology statute.”

The “apology statute” is a law that prevents the admission of certain statements made by healthcare providers. The law provides opportunities for healthcare providers to apologize and console victims of unanticipated outcomes of medical care without fear that their statements will be used against them in a malpractice suit, by making the statements inadmissible as evidence of an admission of liability.

The Johnsons submitted two responses to Dr. Smith’s motion. First, they argued that the statement was not an apology, but rather an admission of her doctor's negligence. Second, they argued that the apology statute did not apply to Dr. Smith’s statement, because the statute was enacted and took effect three years after the malpractice claim arose and the statement was made.

After testimony from Jeanette, her daughter and a friend, the trial court ruled that any evidence regarding Dr. Smith’s statement would be inadmissible at trial. In late June the jury returned a general verdict in favor of Dr. Smith.

The Johnsons appealed. The court of appeals reversed the trial court’s judgment, concluding that the trial court had erred in applying the apology statute retroactively to exclude Dr. Smith’s statement, because the Ohio legislature had not expressly stated its intent that the law should apply retroactively.

When the case came before us, the question was this: Does the apology statute, which became effective on September 13, 2004, apply to a statement of apology made in 2001, but offered in evidence in a case that was not filed until 2007?

The first sentence in the pertinent section of this law begins with these words: “In any civil action brought by an alleged victim ...”  That phrase determines the application of the law. It applies to “any civil action brought” by an alleged victim of malpractice. That means that the law applies to a civil lawsuit filed after the effective date of the law.

The Johnsons argued that they “brought” this civil action in 2002. But that complaint was voluntarily dismissed in 2006. When an action is voluntarily dismissed, Ohio law treats it as if it had never been commenced. When the Johnsons brought this current action, the apology statute had been in effect for almost three years.

In reaching its decision, the court of appeals had concluded that since the incident with Dr. Smith occurred in 2001, his statement could not be properly excluded under the apology statute. But that interpretation does not give effect to the plain meaning of the law, because the Johnsons’ “civil action” was not “brought” until 2007, after the effective date of the apology statute.

The apology statute applies to all civil actions filed after the effective date of the law – September 13, 2004. The court of appeals’ concern over retroactive application of the law was unnecessary because the trial court used a prospective application to exclude Dr. Smith’s statement.

After we determined that the apology statute applied to this case, we then had to determine whether Dr. Smith’s statement was properly excluded. Decisions involving the admissibility of evidence are reviewed under an abuse-of-discretion standard of review. For an abuse of discretion to have occurred, the trial court must have taken action that is unreasonable, arbitrary, or unconscionable.

In Jeanette’s case, the trial court heard testimony from witnesses before ruling on Dr. Smith’s motion to exclude his statement. Based upon its observation, the court concluded that “the statements and gestures and actions are covered” under the apology statute.

But when the court of appeals reviewed the trial court’s decision, it did not analyze under an abuse-of-discretion standard. Thus, it was improper to reverse the trial court’s decision to exclude Dr. Smith’s statement.

The trial court determined that Dr. Smith was faced with a distressed patient who was upset and he made a statement that was designed to comfort his patient. As Justice Judith Lanzinger wrote in the majority opinion, “That is precisely the type of evidence” the apology statute “was designed to exclude ...”

Therefore, by a seven-to-zero vote, we concluded that Dr. Smith’s statement was properly excluded in accordance with the apology statute. We reversed the judgment of the court of appeals and sent the case back to the trial court to reinstate the jury’s verdict.

EDITOR'S NOTE: The case referred to is Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507. Case No. 2010-0014. Decided April 23, 2013. Majority opinion written by Justice Judith Ann Lanzinger.