Ohio High Court Expands Ban on Hospital Apology as Evidence

COLUMBUS, Ohio (CN) – The Ohio Supreme Court ruled Tuesday that an apology by a medical provider cannot be used as evidence in a civil lawsuit, even if the statement admits fault.

The state law in question is known as the “apology statute” and prohibits the use of a medical provider’s apology as evidence in a lawsuit. However, the Ohio Supreme Court’s ruling expands the scope of the law to include admissions of liability.

The court ruled in a 5-2 split decision, with the majority finding that the law was unambiguous.

“Under this plain and ordinary meaning of ‘apology’ … ‘expressing apology’ is a statement that expresses a feeling of regret for an unanticipated outcome of the patient’s medical care and may include an acknowledgment that the patient’s medical care fell below the standard of care,” Justice Sharon Kennedy wrote for the majority.

Kennedy said the court did not have the authority to dig any deeper into the unambiguous statute for further interpretation.

The lawsuit that sparked the debate, Stewart v. Vivian, involved a southern Ohio woman who died as a result of self-inflicted injuries from a suicide attempt while in the hospital.

The woman’s surviving spouse then sued the hospital and Dr. Rodney Vivian. While a settlement was reached with the hospital, Dr. Vivian moved to have his statements made to the family rendered inadmissible as evidence.

The Ohio 12^th District Court of Appeals ruled in favor of the doctor, finding that the statements he made to the family were an “attempt at commiseration” over the sad events and could not be used as evidence in the civil suit.

The Ohio Supreme Court’s decision affirms the lower court’s ruling.

Chief Justice Maureen O’Connor penned a dissent to the majority opinion, agreeing the majority’s definition of “apology” but arguing that their interpretation of the law was problematic.

“Although I do not believe that the statute must be rigidly construed to cover only those statements including the words ‘I apologize’ or ‘I sympathize,’ there must be a limit based on the actual content of the statements and not the intention of the speaker,” O’Connor wrote. “If not, a health-care provider could render any statement inadmissible simply by affirming a subjective intent to apologize or to console.”

O’Connor was joined in her dissent by Justice William O’Neill.

Justices Terrence O’Donnell, Judith French, Patrick Fischer and Patrick DeWine joined Kennedy in the majority.

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