AMCNO Joins Other Associations to File an Amicus Brief on Apology Statute

Apology. It is one word that means two different things to two different courts. To one court, statements or conduct expressing apology made by a physician after an unanticipated medical outcome include only expressions of sympathy and do not include expressions of fault. To another court, they include expressions of fault. The differing interpretations have caused confusion among medical professionals about what they can and cannot say to a patient or the patient’s family after an unanticipated medical outcome.

But not for long. On January 17, 2017, the AMCNO joined forces with the Ohio State Medical Association (OSMA), the Ohio Hospital Association (OHA), and the Ohio Osteopathic Association (OOA) as amici curiae—or friends of the court—to make their views known to the Supreme Court of Ohio that words of apology, by that word’s own dictionary definition, include words of fault.

The confusion started back in 2011 when the Ninth District Court of Appeals—covering Lorain, Medina, Summit, and Wayne counties—first construed Ohio’s apology statute, R.C. 2317.43, in Davis v. Wooster Orthopaedics & Sports Medicine, Inc., 193 Ohio App.3d 581, 2011-Ohio-3199, 952 N.E.2d 1216 (9th Dist.). The physician in that case told the family after surgery that he had nicked an artery, that it was his “fault” and that he took “full responsibility,” and that he was sorry. The physician argued that these statements should be excluded under Ohio’s apology statute, which protects “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 whenever they “relate to the discomfort, pain, suffering, injury, or death [of the patient] as the result of the unanticipated outcome of medical care” and makes them “inadmissible as evidence of an admission of liability or as evidence of an admission against interest.” While the trial court excluded the “I’m sorry” part of the physician’s statements, it did not exclude the physician’s statements of fault or liability, finding those statements not protected by the statute. On appeal to the Ninth District, the appellate court agreed and found that “admissions of fault” are not protected. In doing so, it emphasized the “sympathy” component of the statute and claimed the General Assembly’s intent was to limit the term “apology” to words of sympathy or condolence, and not include words of fault. Although the Supreme Court accepted review of the Ninth District’s decision, the case was later dismissed and the issue was never resolved by the Court.

Fast forward five years and the same issue is now before the Twelfth District Court of Appeals in Stewart v. Vivian, 2016-Ohio-2892, 64 N.E.3d 606 (12th Dist.). The physician in that case went to the ICU to speak with the family of a psychiatric patient who was found hanging from the bathroom door of her hospital room even though she was on 15-minute checks. According to the family, the physician acknowledged that the patient said she would continue to keep trying to commit suicide. The physician, on the other hand, said he was trying to comfort the family following an unexpected outcome. The patient died a few days later. The physician sought to exclude the statements made to the family from the wrongful-death lawsuit that followed. The trial court did so, calling the statements made by the physician an “ineffective attempt at commiseration” and excludible under the apology statute. It explained that an apology can be made in the process of commiserating, to calm a situation down, and for the purpose of “tak[ing] responsibility for your own actions” and therefore includes statements of fault. The Twelfth  District agreed and, in doing so, disagreed with the decision of the Ninth District, setting up a conflict among the appellate courts.

The Supreme Court thereafter agreed to review the Twelfth District’s decision and resolve the conflict. Supporting the physician and asking the Court to uphold the Twelfth District’s decision, the AMCNO joined forces with the OSMA, OHA, and OOA, and worked together to prepare a joint amicus brief. Together we asked the Court to apply well-recognized principles of statutory construction and interpret the statute broadly to find that the word “apology,” by its ordinary dictionary meaning, includes words of fault and that the statute, plain on its face, is not limited to words of sympathy. Had the General Assembly intended to limit the meaning of apology, it would have added words to the statute that are not there and cannot be added now by a court of law. Amici also asked the Court to consider the purpose of the apology statute—to strengthen the relationship between physicians and patients through greater openness and transparency without fear that any statements made after an unanticipated medical outcome would be used against them.

Amici filed their brief on January 17, 2017, at the same time as the physician amici supported. The plaintiff, as appellant, will soon file his reply brief. Once briefing is complete, the Supreme Court will set the case for oral argument. As always, we will keep you posted on this and other important cases affecting your practice.  

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