Oral Argument Preview: Can a Doctor’s Admission of Fault During An Apology Be Used in Court? Dennis Stewart, Individually and as the Administrator of the Estate of Michelle Stewart, Deceased v. Rodney E. Vivian, M.D., et al.

Read an analysis of the oral argument in this case here.

On April 6, 2017, the Supreme Court of Ohio will hear oral argument in the case of Dennis Stewart, Individually and as the Administrator of the Estate of Michelle Stewart, Deceased v. Rodney E. Vivian, M.D., et al., 2016-1013. This certified-conflict case presents the question of whether the Ohio apology statute also makes statements of fault, error, or liability made by a health care provider inadmissible at trial.  This case will be argued at Morgan High School in Morgan County as part of the court’s off-site program.

Certified Question

“Whether a health care provider’s statements of fault or statements admitting liability made during the course of apologizing or commiserating with a patient or the patient’s family are prohibited from admission of evidence in a civil action under Ohio’s apology statute, R.C. 2317.43.”

Certified Conflict Case

Davis v. Wooster Orthopaedics & Sports Medicine, Inc. 2011-Ohio-3199 (9th Dist.)

R.C. 2317.43. was intended to protect pure expressions of apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, without excluding from trial a medical professional’s admission of fault for a claimed injury. The Davis case was originally accepted for review by the Supreme Court of Ohio, but was settled before it was argued.

Case Background

Appellant Dennis Stewart (“Stewart”) filed a medical malpractice and wrongful death claim against Appellee Dr. Rodney Vivian and Mercy Hospital Clermont (”Mercy”) after Stewart’s wife, Michelle Stewart, committed suicide by hanging. Michelle’s suicide occurred while she was an inpatient at the psychiatric unit of Mercy under Dr. Vivian’s care. The claim against Mercy was settled and is not involved in this appeal.

Michelle Stewart had been admitted to Mercy for treatment by Dr. Vivian just hours after an earlier suicide attempt. Stewart alleged that Dr. Vivian was negligent in the assessment, care and treatment of his wife while she was on a 72-hour psychiatric hold.  Stewart contends his wife was actively suicidal and required closer observation than she received.  Dr. Vivian disputed this.

Dr. Vivian ordered that hospital staff check on Michelle every 15 minutes throughout the day (as opposed to more frequent or constant observation). During one of those unobserved periods of time, Michelle hanged herself from the bathroom door. Stewart discovered his wife’s body when he arrived for visiting hours. Michelle was taken down and transferred to the ICU, where she lingered for a few days before dying.

The second day after Michelle was moved to the ICU, her family was gathered beside her bed and Dr. Vivian approached the family. The actual content of what was said is contested, but at trial, Stewart attempted to admit statements that Dr. Vivian said he knew Michelle would try to commit suicide again, which Stewart argued was an admission of fault. Dr. Vivian testified that he did not remember exactly what he said, but that his intent was to apologize to the family about what had happened. His best recollection was that he told the family he was sorry about what had happened, but that when someone yelled at him that it was his fault, he said he was sorry and then he left.  Family members did not think Dr. Vivian had apologized. So, the parties disagree about whether Dr. Vivian admitted to fault, above and beyond the admission contained within a traditional, “I’m sorry,” and if so, whether such a statement is admissible under Ohio’s apology statute.

Dr. Vivian filed a motion in limine to keep his statements out of the trial. The trial judge initially acknowledged that Dr. Vivian’s statements in the ICU didn’t literally fall under the definition of any of the words in the apology statute, but concluded that an apology can include a statement of fault. The court ultimately determined that Dr. Vivian’s statements to the family were an ineffective attempt at commiseration, granted the motion in limine, and excluded the statements.  The jury found in favor of Dr. Vivian, and post trial motions were denied. Stewart appealed.

On appeal, in an opinion written by Judge Hendrickson and joined by Judge Piper, the Twelfth District agreed with the Davis court that the term “apology” in R.C. 2317.43 is ambiguous, but disagreed with the Davis court that  “the [legislature’s] intent was to protect pure expressions of apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, but not admissions of fault.” The Twelfth District reviewed the use of the word “apology” separately from the other terms in the statute, and concluded that the legislature intended to exclude from evidence all statements of apology, including statements of fault.  Judge Michael Powell concurred separately, disagreeing with the standard of review for determining whether the contested statements should be excluded.

Votes to Accept the Case

Yes: Chief Justice O’Connor; Justices Pfeifer, Lanzinger, Kennedy, and O’Neill.

No: Justices O’Donnell and French.

Key Statutes and Precedent

R.C. 2317.43  (Ohio Apology Statute)(In any civil action brought by an alleged victim of an unanticipated outcome of medical care or in any arbitration proceeding related to such a civil action, 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 healthcare provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim, and 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 as evidence of an admission against interest.)

Estate of Johnson v. Randall Smith, Inc., 2013-Ohio-1507 (Statement of comfort by physician to distressed patient is precisely the type of evidence that Ohio’s apology statute was designed to exclude in a medical malpractice case.)

Stewart’s Argument

The term “apology” as used in R.C. 2317.43 does not include statements of fault, error, or liability, even if made at the same time as a statement of commiseration or apology. The certified question should be answered in the negative.

Legislative intent is always the paramount concern in statutory construction. Resolving the certified question is quite simple: the certified question itself acknowledges that “statements of fault or statements admitting liability” are separate and distinct from statements “apologizing or commiserating with a patient or patient’s family. ” There is nothing in the text of the statute that says that statements of fault are inadmissible.  The court cannot add language that is not there. Legislative attempts to add “fault” to the statute have thus far been unsuccessful. Terms in a statute must be narrowly construed and strictly applied.

The Ninth District’s holding in Davis, on the other hand, was exactly right in concluding, after a review of the legislative history, that the intent of the legislature in using the word “apology” in the statute was to mean only a statement of condolence, without any expression of fault.

The trial court and Twelfth District ignored statutory interpretation principles and engaged in judicial legislation by inserting “fault” into the statute. In essence, those courts held that no matter what Dr. Vivian actually said, as long as he intended to apologize, any statements he made while intending to apologize, including statements of fault, are excluded.

The Twelfth District’s decision serves to amend R.C. 2317.43 by judicial legislation. It is not consistent with the statute’s text, the legislature’s intent, or past precedent. The court should adopt Davis’s interpretation of the statute, vacate the decisions below, and remand with instructions to grant Stewart’s motion for new trial and to admit Dr. Vivian’s statements into evidence.

Dr. Vivian’s Argument

The purpose of the apology statute, passed as part of Ohio’s tort reform efforts, is to allow health care providers to apologize and console victims and families of victims of unintended bad outcomes in medical situations without having those statements used against them in malpractice suits. The court has already found, in Estate of Johnson v. Randall Smith, Inc., that the language in R.C. 2317.43 is not ambiguous. An unambiguous statute is to be applied, not interpreted. Without a finding of ambiguity, inquiry into legislative intent is inappropriate.

None of the terms in R.C. 2317.43 are defined, so the court must look to common, everyday usage.  Dictionary definitions of “apology” include statements of fault and error. If the legislature had intended a more restrictive definition, it could have expressly done so, as other states have, by excepting out certain statements from the definition. What has happened in the legislature since the enactment of the statute is irrelevant to its interpretation.

Even if R.C. 2317.43 is found to be ambiguous, it is a remedial statute, designed to carry out its purpose, which is to provide health care providers with protections when meeting with families when there are unexpected outcomes after medical care, to encourage communications in those circumstances, and hopefully to reduce the likelihood of lawsuits. If the narrow definition proposed by Stewart is adopted, doctors will simply refrain from such interactions for fear that their statements will be used against them in a lawsuit.

Stewart’s First Proposed Proposition of Law

Statements of fault, error, or liability are not prohibited from admission into evidence by R.C. 2317.43, regardless of whether or not they are made during the course of apologizing or commiserating with a patient or patient’s family.

Stewart’s Second Proposed Proposition of Law

The term “apology” as used in R.C. 2317.43 does not include statements of fault, error, or liability.

Dr. Vivian’s First Proposed Counter Proposition of Law

R.C. 2317.43 is not ambiguous, as the common meaning of “apology” includes statements of fault or statements of admitting liability, therefore such statements are not admissible at trial.

Dr. Vivian’s Proposed Second Counter Proposition of Law

R.C. 2317.43 is a remedial statute to be broadly construed to give effect to its object to exclude any and all statements from admissibility at trial, including statements of fault or statements admitting liability, should a trial court determine that such statements were made by a health care provider during the course of apologizing or commiserating with a patient or patient’s family.

Combined Brief of Amici Curiae, Ohio State Medical Association, Ohio Hospital Association, Ohio Osteopathic Association and the Academy of Medicine of Cleveland and Northern Ohio in support of Dr. Vivian

The amici note that the Ohio medical community was instrumental in getting the Ohio apology statute passed, and therefore want to ensure that the statute is applied in a manner consistent with its intent, which was to encourage open communications between doctors and patients and their families after unanticipated medical outcomes.

Collectively, these organizations argue that R.C. 2317.43 is not ambiguous and should include statements of fault. The ordinary meaning of the word “apology” includes statements of fault.  But even if the statute is deemed ambiguous, it should still be broadly construed to include both fault and sympathy statements, because such an interpretation is consistent with statutory construction and the legislative intent.  Thus, the certified question should be answered affirmatively.

Student Contributor: David A. López-Kurtz

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