AMCNO Scores a Victory with Ohio Supreme Court Decision on “Apology Statute”

The AMCNO is pleased to announce that on Sept. 12, 2017, the Ohio Supreme Court decided the “apology statute” case—Stewart v. Vivian—ruling that a healthcare provider’s statement of apology that expresses fault or admission of liability to a patient or the patient’s family cannot be admitted as evidence in a civil lawsuit against the provider. The AMCNO had worked with the Ohio State Medical Association, Ohio Hospital Association, and the Ohio Osteopathic Association to prepare a joint amicus brief that stated that words of apology, by the word’s own dictionary definition, include words of fault.

In the 5-2 decision, the Court found that a physician’s statement of apology expressing “a feeling of regret for an unanticipated outcome…may include an acknowledgement that the patient’s medical care fell below the standard of care.” The Court found nothing ambiguous about the word “apology” and found it may include statement of fault.

This ruling resolved a split among Ohio appeals courts that differed on whether the term “apology” excluded a provider’s apology that included an admission of fault.

The majority decision, written by Justice Sharon L. Kennedy, affirmed rulings by lower courts not to admit the statements of Dr. Rodney E. Vivian in a medical malpractice lawsuit brought against him by the family of a woman who committed suicide. The woman was under Vivian’s care at a Clermont County hospital.

The Court unanimously agreed that Ohio’s “apology statute,” R.C. 2317.43, shields apologies that include admissions of fault. However, two justices concluded that Vivian’s statements were not an apology and the trial court should have allowed his comments to be presented in the case.

Editor’s Note: The AMCNO Medical Legal Liaison Committee tracks cases for the AMCNO Board of Directors that come before the Ohio Supreme Court and could impact or change the tort reform laws in Ohio which would greatly impact our members. We will continue to update our members on these types of matters when they are available.

The Pollen Line is now closed. See you in the spring!

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