Oral Argument Preview: Interpretation of Ohio’s Health Care Provider Apology Statute. Johnson v. Smith.

Update: On April 23, 2013, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On February 5, 2013, the Supreme Court of Ohio will hear oral argument in the case of Johnson v. Smith, 2012-0014.  At issue in this case is whether Ohio’s health care provider apology statute, R.C. 2317.43, retroactively applies to apologetic statements and gestures made by a doctor in an attempt to console his patient.

Mrs. Johnson, the injured plaintiff in the case, died on August 17, 2012, and her estate is now the appellee in this appeal.


Jeanette Johnson suffered from gall bladder disease.  In 2001, Dr. Randall Smith operated laparoscopically to treat Johnson’s gall bladder attack.  In the course of surgery, Johnson’s common bile duct was injured, a known and recognized risk of the procedure.  Dr. Smith subsequently converted the procedure into an open procedure to correct the injury.  Dr. Smith advised Johnson of the injury.  One month later, Johnson was readmitted to the hospital for complications resulting from the injury.  Treatment required Johnson to be transferred to another hospital.

Johnson became very upset and emotional.  In an effort to console her, Dr. Smith took Johnson’s hand and said, “I take full responsibility in this.  Everything will be okay.”  In the following year, Johnson had six endoscopic procedures to treat her common bile duct.

In August of 2002, Johnson brought a medical malpractice suit against Dr. Smith. However, she developed more medical problems and in September of 2006, she voluntarily dismissed the action to investigate further.  She learned that her medical issues were related to the common bile duct injury.  Johnson re-filed her case in July of 2007.

The trial court determined that Dr. Smith’s statements were covered under R.C. 2317.43, and granted Smith’s motion in limine to exclude the statements. The jury found that Dr. Smith did not commit malpractice.  Johnson appealed.

Court of Appeals Decision

In a split decision, the Eleventh District Court of Appeals found that the trial court erred in applying the statute retroactively, and erred in  precluding Dr. Smith’s statements. Dr. Smith’s statements were made to Johnson in 2001; the statute was enacted in 2004. Therefore, excluding the statements based on the statute was error. The majority held that there was no express statement of retroactive intent and, therefore, the statute could only be applied prospectively.  Furthermore, the majority held that the probative value of Dr. Smith’s statements substantially outweighed the danger of undue prejudice.  The dissent held that even if the statute only applied prospectively, it applied in this case, as the statute applies to civil actions brought after the September 2004 effective date. The re-filed case was brought after the enactment of the statute, and the trial court was correct in excluding the statements on that basis.

Key Statute

R.C. 2317.43, commonly known as the “apology statute,” was enacted on September 13, 2004.  The statute provides opportunities for doctors to apologize and console victims of unanticipated outcomes of medical care without fear that their statements would be used against them in a malpractice suit.  The pertinent statute reads:

In any civil action brought by an alleged victim of an unanticipated outcome of medical care, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that are made by a health care provider to the alleged victim or their relative or representative that relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or statement against interest.

Dr. Smith’s Argument

Dr. Smith argues that R.C. 2317.43 is a procedural statute that applies prospectively to any action brought after the effective date of the statute (2004), therefore, any constitutional issues of retroactively are null.  R.C. 2317.43 applies to “any civil action brought by an alleged victim.”  Although Johnson originally filed suit in 2001, she dismissed the suit making it null.  She filed the subsequent suit in 2007, three years after the statute was enacted.  Therefore, the conduct and statements of Dr. Smith are required to be precluded from evidence.  Determining retroactivity is unnecessary since the prospective application of the statute demands exclusion.

Furthermore, R.C. 2317.43 is remedial in nature and does not infringe on the substantive rights of Johnson.  Applying a prospective application, there is no question the trial court was acting within its discretion.  The trial court determined, through a pre-trial examination, that the comments, gestures, and statements of Dr. Smith were clearly within the protections afforded by R.C. 2317.43 and used its discretion in excluding them from trial.  The Eleventh District never analyzed whether the trial court abused its discretion in excluding the statements, rather, it erroneously determined the statute could not be applied retroactively and, therefore, the specific facts of the case were moot.

Requiring trial courts to excise only direct statements of condolence – “I’m sorry” – but permit expressions of responsibility or remorse would provide information out of context and result in disparate application on a case-by-case basis.  The statute is broadly written to encompass any manner and means of sympathy the care provider deems necessary.  While outright expressions of fault or responsibility may be admissible, when couched in terms of sympathy or condolence, they become inadmissible under R.C. 2317.43.  Furthermore, an expression of accepting responsibility is not dispositive of negligence.  Allowing statements like Dr. Smith’s would undoubtedly cause the jury to question the care provider’s liability despite expert testimony that no negligence occurred.  This would require Dr. Smith to explain his acceptance of responsibility without the benefit of contextualizing his statement.

An expression of sympathy carries with it an inherent acceptance of responsibility which falls under the protection of R.C. 2317.43.  To find otherwise would result in empty, scripted apologies by care providers and further chill the doctor patient relationship and subvert the intent of this statute.

Johnson’s Argument

Johnson argues that the statute does not apply in the instant case, and even if it is applicable, the statement “I take full responsibility” would not be prohibited by the statute.  A statute is presumed to be prospective unless it is expressly made retrospective.  To assess retroactivity, the court must first determine there was a clear indication of retroactive application and second determine whether the statute is substantive or remedial.  Only if the law affects substantive rights will the statute contravene the ban on retrospective legislation.  R.C. 2317.43 has no express intention of retroactivity.  Furthermore, the statute is substantive because excluding admissions of fault impairs Johnson’s right to prove her cause of action – a substantive right.  Additionally, the statute imposes a new burden on Johnson to establish liability.  R.C. 2317.43 is outcome determinative since it seeks to exclude evidence that would have a serious effect on the jury’s determination of liability.

This case was commenced in 2001, three years before the statute was enacted.  Due to the substantive nature of the statute, it does not apply to all proceedings conducted after its enactment.  The ramifications of Dr. Smith’s statements should be predicated on the law at the time he made the statements.  When the statements were made, R.C. 2317.43 did not exist, therefore, the ramifications of his statements cannot be predicated on the statute.

There is a distinction between statements of sympathy and admissions of fault. If the legislature intended for R.C. 2317.43 to protect admissions of fault or responsibility, it would have explicitly said that, as numerous other states do.  The six listed categories suggest the legislature carefully chose the types of statements protected.  The refusal to include fault or responsibility leads to the inference that such statements were not meant to be protected.

Finally, R.C. 2317.43 attempts to preclude admissions against party interest, in conflict with the Rules of Evidence.  Because the statute conflicts with the Rules, the statute must be given no further force or effect.  Statements of fault or responsibility are undoubtedly prejudicial, however, they are especially probative and should be admitted.

Dr. Smith’s Proposed Propositions of Law

Proposition of Law One

Ohio Revised Code § 2317.43 applies to any cause of action commenced or filed after the enactment date of the statute and serves to preclude the introduction into evidence a healthcare provider’s sympathetic statements and gestures.

Proposition of Law Two

Ohio Revised Code § 2317.43 is a [sic] procedural in nature and applies retroactively to preclude the introduction into evidence a healthcare provider’s sympathetic statements and gestures.

Johnson’s Proposed Counter Propositions of Law

Proposition of Law One

Ohio Revised Code § 2317.43 cannot be applied to a cause of action which accrued and/or conduct which occurred prior to the enactment of the statute.

Proposition of Law Two

Ohio Revised Code § 2317.43 is a substantive law, and thus, cannot be applied retroactively or prospectively.

Proposition of Law Three

Ohio Revised Code § 2317.43 does not apply to statements acknowledging or accepting responsibility or liability.

Proposition of Law Four

To the extent that Ohio Revised Code § 2317.43 is procedural, and has retroactive or prospective application, it is inconsistent with and is superseded by the Rules of Evidence.

Amicus Brief in Support of Dr. Smith

An amicus brief was filed by The Academy of Medicine of Cleveland & Northern Ohio in support of Dr. Smith.

The amicus argues that the statute applies to any civil action or case commenced after 2004, therefore, the question is not when the statements were made, but rather when the action was filed.  In this case, Johnson did not commence the action until well after the effective date of R.C. 2317.43, therefore, the statute apples.  The clear language of the statute provides that it applies to any civil action brought by the alleged victim; a civil action is commenced upon filing the complaint.  The statute relates to the commencement of the case, not the cause of action.  The Eleventh District incorrectly related the statute to the cause of action – the factual allegations giving rise to the claim – in applying the statute.  In determining when the civil action occurred, the time period of Johnson’s surgery is irrelevant.  Furthermore, this statute is intended to be construed broadly to provide physicians space to apologize to patients for unforeseen outcomes.

Additionally, the legislature intended retroactive application of the statute.  The statute is intended to be remedial because it references “any civil action.”  Furthermore, the statute is remedial in nature because it provides an appropriate procedural mechanism for excluding statements of apology.  The statute does not impair substantive rights of the physician or patient.

The Academy of Medicine of Cleveland & Northern Ohio Proposed Propositions of Law

 Proposition of Law One

R.C. 2317.43 applies to any civil action filed after the statute’s enactment date, September 13, 2004, and is properly construed broadly to carry out its intended purpose of encouraging trust and transparency in the physician-patient relationship.

Proposition of Law Two

R.C. 2317.43 is remedial in nature and may apply retroactively under Section 28, Article II of the Ohio Constitution.

Student Contributor: Katlin Rust


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