'I'm Sorry, It Was My Fault': Why Ohio Juries May Never Hear a Doctor's Apology (Stewart v. Vivian)

Published October 10, 2017 · Ohio Supreme Court

Imagine standing in an intensive-care room next to your wife, who is on life support after something went badly wrong in the hospital, and hearing the doctor say he is sorry and that he should have done more. Under a decision the Supreme Court of Ohio issued last month, the jury that eventually decides your case will probably never hear a word of it.

Stewart v. Vivian, 2017-Ohio-7526, resolves a conflict between Ohio's appellate courts over the state's "apology statute" and resolves it in favor of doctors and hospitals. This post explains what the Court held, why it matters to families pursuing malpractice and wrongful-death claims, and what a family can do to protect a case that can no longer rest on what was said at the bedside.

The apology statute, before this case

Ohio enacted R.C. 2317.43 in 2004. In a civil action by the victim of an unanticipated outcome of medical care, the statute makes inadmissible, as evidence of an admission of liability, "any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence" made by a health care provider to the patient or the patient's family. The idea was to let doctors say "I'm sorry this happened" without that sentence becoming Exhibit A.

The open question was what happens when the apology goes further: "I'm sorry, I should have ordered the scan." In 2011 the Ninth District held that the statute protects only "pure" expressions of sympathy, not admissions of fault. The Supreme Court's 2013 decision in Estate of Johnson v. Randall Smith, Inc., which we covered in The Doctor Apologized: Can You Use It in Court?, left that question open. Stewart answers it.

What happened to Michelle Stewart

Michelle Stewart attempted suicide in February 2010 and was admitted to the psychiatric unit at Mercy Hospital Clermont under Dr. Rodney Vivian. He ordered that staff check on her visually every fifteen minutes. The next evening her husband, Dennis, arrived to visit and found her hanging in her room. She was placed on life support and died four days later.

Two days after the hanging, Dr. Vivian came to Michelle's ICU room and spoke briefly with the family before being asked to leave. What he said was disputed. Michelle's sister testified that he walked in and asked, "so what do you think happened here?" and, when Dennis answered that she had obviously tried to kill herself, replied that she had told him she was going to do that and would keep trying. Dennis remembered the doctor saying he did not know how it happened, that it was a terrible situation, and that she had just told him she still wanted to die. Dr. Vivian testified at the hearing that he had said he was sorry, but the trial court found his earlier deposition testimony, that he could not remember what he said, more credible.

The trial court excluded the statements as an "attempt at commiseration," the jury found for Dr. Vivian, and the Twelfth District affirmed while certifying a conflict with the Ninth District.

The Court's holding

By a 5-2 vote, the Supreme Court held that the statute is unambiguous and that the dictionary meaning of "apology" includes an admission of wrongdoing accompanied by regret. A statement expressing apology under R.C. 2317.43(A) is therefore one that expresses regret for an unanticipated outcome, and it "may include an acknowledgment that the patient's medical care fell below the standard of care." The Ninth District's "pure apology" limitation was rejected because the legislature did not write the word "pure" into the statute.

Chief Justice O'Connor, joined by Justice O'Neill, agreed with that definition but would have ruled for the family on these facts. In her view, nothing Dr. Vivian said was an apology or an expression of sympathy at all. As she put it, "'What do you think happened here?' is a question, not an expression of Dr. Vivian's regret or sympathy." She warned that if a provider can make any statement inadmissible simply by claiming an intent to console, the statute will swallow far more than the legislature intended.

Why this is bad for injured patients and their families

Doctors and nurses are human. In the hours after a bad outcome, before lawyers and risk managers are involved, they sometimes tell the family the truth: the chart was misread, the order was not followed, the warning sign was missed. Those statements are often the most honest account of what happened that the family will ever get.

After Stewart, if that honest account is wrapped in an expression of regret, it cannot be used at trial as an admission, and providers now have every incentive to begin difficult conversations with "I'm so sorry." The practical effect is that malpractice and wrongful-death cases in Ohio must be built almost entirely on the medical records and on expert testimony, not on what anyone said in the hallway.

What still gets through

The statute protects statements made to the patient or the patient's family. It does not make the underlying facts inadmissible. If a nurse told the family the fifteen-minute checks were not done, the family cannot offer that sentence, but the nursing flow sheets showing the gaps in the checks are still evidence, and the nurse can still be deposed and asked under oath what was done. Ohio's definition of the medical record is broad, as the Supreme Court made clear last year in a case we discussed in Hospitals Can't Hide Your Records in Another Department.

And the statute applies to statements by health care providers. It does not shield an admission by a hospital administrator about staffing, a manufacturer about a device, or anyone else who is not providing care.

Building a case that does not depend on the apology

Because the bedside conversation will likely be excluded, we approach these cases from the first meeting as though it never happened. That means:

• Requesting the complete chart immediately, including nursing notes, monitoring strips, medication administration records, electronic audit trails showing who opened the chart and when, and incident reports where discoverable.
• Writing down, that day, everything every provider said, with names, times, and witnesses. Even if a statement is inadmissible as an admission, it tells us where to look and whom to depose.
• Identifying the right expert early. Ohio requires an affidavit of merit from a qualified physician to file a malpractice case, and the expert, not the apology, is what proves the standard of care was breached. We discussed the central role of expert proof in informed consent cases; the same is true across every malpractice claim.
• Watching the clock. Medical claims in Ohio carry a one-year limitations period under R.C. 2305.113(A), far shorter than most injury claims. Families who wait for the hospital's internal review to conclude can run out of time.

What this means for you

If a doctor or nurse has told you that a mistake was made, treat that conversation as information, not as evidence. Write it down, and understand that the case will have to be proved with records and experts. If someone you love died in a hospital under circumstances no one has adequately explained, the honest answer is that the law just made the hospital's job easier. That is a reason to get a lawyer involved sooner, not a reason to give up.