The Doctor Apologized: Can You Use It in Court? Ohio's Apology Statute After Estate of Johnson

Published May 15, 2013 · Ohio Supreme Court

A month after her gallbladder surgery went wrong, Jeanette Johnson was back in the hospital, frightened and about to be transferred to another facility for the complications. Her surgeon came to her bedside, took her hand, and said, "I take full responsibility for this. Everything will be okay." When her malpractice case went to trial years later, the jury never heard those words. On April 23, 2013, the Ohio Supreme Court said that was correct.

The case is Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507. It is not a good decision for injured patients, and I want to explain plainly what it holds, what it does not hold, and what it means for anyone who has heard a doctor say "I'm sorry."

Ohio's apology statute

R.C. 2317.43, which took effect September 13, 2004, is Ohio's "apology statute." In any civil action brought by a patient over an unanticipated outcome of medical care, it makes inadmissible, as evidence of liability or as an admission against interest, "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 behind the statute is that doctors should be able to express sympathy without fear that a kind word will be turned into a confession. Whatever one thinks of that policy, the statute is the law, and the question in Johnson was how far it reaches.

What happened in the case

Dr. Smith operated on Mrs. Johnson in April 2001. Her common bile duct was injured during the procedure, which the opinion notes is a known risk, and he repaired it. A month later she returned with complications and was transferred to another hospital. That is when he made the statement.

The Johnsons first sued in 2002, voluntarily dismissed in 2006, and refiled in July 2007. Before trial, the surgeon asked the court to exclude the statement under the apology statute. The Johnsons argued two things: first, that "I take full responsibility" is an admission of fault, not an expression of sympathy; and second, that the statute could not apply to a statement made in 2001, three years before it existed. The trial court excluded the statement, and the jury found for the doctor.

The Eleventh District Court of Appeals reversed and ordered a new trial, reasoning that the statute could not be applied retroactively and that a jury could reasonably read "full responsibility" as an admission of fault.

What the Supreme Court held

The Supreme Court reversed the court of appeals and reinstated the defense verdict, on two grounds.

Timing. The statute applies to "any civil action brought" by a patient. The Court held that this means any lawsuit filed after September 13, 2004, regardless of when the statement was made. Because the Johnsons' 2002 case had been voluntarily dismissed, Ohio law treats it as if it never existed, and the operative case was filed in 2007. The statute applied.

The statement itself. The Court did not decide, as a matter of law, that "I take full responsibility" is always an expression of sympathy. It held that the trial judge, who heard testimony about the circumstances, concluded that the surgeon was faced with a distressed patient and made a statement designed to comfort her, and that this conclusion was not an abuse of discretion. In the Court's words, this was "precisely the type of evidence that R.C. 2317.43 was designed to exclude."

Two justices concurred in the judgment only, and the majority's reasoning turned on deference to the trial judge rather than on a flat rule.

What the decision does not say

It is important not to overread Johnson. The 2004 statute lists apology, sympathy, commiseration, condolence, compassion, and benevolence. It does not list fault, error, or negligence. Whether a direct admission such as "I cut the wrong duct" or "I should have ordered the scan" is protected remains an open question in Ohio, and Johnson did not close it. What Johnson decided is that when a statement is ambiguous, made in a moment of comfort, the trial judge gets to decide which side of the line it falls on, and an appellate court will rarely second-guess that call.

That means the outcome in the next case will depend on the words used, the setting, who was present, and how the trial judge sees it. It also means an injured patient cannot count on an apology to prove the case.

How to protect a malpractice claim

If a provider has told you or your family that something went wrong, do these things:

• Write it down immediately, word for word, with the date, time, place, and everyone who was present. Even if a court later excludes the statement as an expression of sympathy, your contemporaneous notes may matter for other purposes, and the exact words will determine whether the statement is protected at all.
• Get the complete medical records, including operative reports, nursing notes, imaging, and the records from any later hospital. The statute protects what the doctor said; it does not protect what the chart shows.
• Identify the witnesses. A family member who heard the statement, or a nurse in the room, may be important later.
• Do not rely on the apology as your proof. Malpractice cases in Ohio are proven through expert testimony that the provider fell below the standard of care and that the failure caused the injury, a point I explained in this post on informed consent. The apology is at most a supplement.
• Watch the deadlines. Medical claims have a one-year limitations period and a four-year statute of repose, which I discussed in The Four-Year Wall. Johnson also shows that dismissing and refiling a case can change which laws apply to it.

Being candid with your own doctors still matters, for reasons I set out in Why Honesty With Your Doctor Can Make or Break an Ohio Injury Case. The apology statute runs in one direction: it protects what providers say to you, not what you say to them.

What this means for you

A doctor's apology is a human moment, and often a sincere one. Under Estate of Johnson, it is usually not evidence. If you were seriously injured by medical care, or lost a family member, the case has to be built the way strong malpractice cases are always built: with the records, with qualified experts, and with a timeline that does not depend on what anyone said at the bedside. The sooner that work starts, the more of it can be done.

Our personal injury and wrongful death practices review medical-negligence cases carefully and honestly. If the facts support a claim, we will tell you. If they do not, we will tell you that too.