What’s On Their Minds: 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.

Update: On September 12, 2017, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

“Where is the apology?”

Justice O’Neill

On April 6, 2017, the Supreme Court of Ohio heard 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 was argued at Morgan High School in Morgan County as part of the court’s off-site program.

Key Statute

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.)

Case Background

Appellant Dennis Stewart (“Stewart”) filed a medical malpractice and wrongful death claim against Appellee Dr. Rodney Vivian and Mercy Hospital Clermont 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 fashioned a ligature from a sheet and 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. According to the family, Dr. Vivian said to them that “she (Michelle) said she was going to do that. She told me she was going to keep trying,” and that she had wanted to kill herself, to be dead. According to Dr. Vivian, he did not remember exactly what he said, but that his intent was to apologize to the family about what had happened, that the meeting turned hostile, and he left the room.

Dr. Vivian filed a motion in limine to keep his statements in the ICU 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 then 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.

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. The court upheld the trial court’s decision to exclude the statements.  Judge Michael Powell concurred separately, agreeing that the statements should be excluded, but disagreeing with the standard of review for determining whether the contested statements should be excluded.

Read the oral argument preview of this case here.

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.

At Oral Argument

Arguing Counsel

Peter A. Saba, Stagnaro, Saba & Patterson Co. LPA, Cincinnati, for Appellant Dennis Stewart, Individually and as Administrator of the Estate of Michelle Stewart, Deceased

Aaron A. Vanderlaan, Arnzen, Storm & Turner, P.S.C., Covington, Kentucky, for Appellee Dr. Rodney Vivian

Stewart’s Argument

The certified question should be answered with a “no.” Statements of fault or admissions of liability made by a physician during the course of apologizing or commiserating with a patient or the patient’s family are not to be excluded from evidence under R.C. 2317.43. We know this from the text of the apology statute itself, the legislative history, and longstanding principles of statutory construction, including not legislating from the bench. To hold as the lower courts did and as the appellee urges would require the court to determine that it was the intent of the legislature that the word apology would mean fault and liability even though those words don’t appear anywhere in the statute. There was never any intent to extend the word “apology” that far.

There are many meanings of apology, but the simplest is to convey regret. There are other definitions and meanings of apology, but the court can’t just pick and choose and slot in one that it prefers. It must adhere to legislative intent, which was only to allow statements of sympathy made by a doctor to be excluded. There have been three unsuccessful attempts by the amicus parties to have the legislature add fault and liability to the statute.

The words Dr. Vivian actually used, “she told me she was going to do it, she told me she was going to kill herself,” would not fall under the term benevolence or kindness, or any other words in the statute, but clearly implicate fault. The level of observation ordered by Dr. Vivian was one of the key issues in the case. The experts all testified that in this situation, if there was information available that this physician knew that this patient would be attempting suicide, the hospital was compelled to raise the standard of care and the doctor needed to order a higher level of observation. The jury was thus entitled to hear and weigh those words by Dr. Vivian which have a direct bearing on liability in this case.

Dr. Vivian’s Argument

Dr. Vivian went into the ICU room to express his sorrow for the situation. That was his intention. He had never experienced this kind of situation in 35 years of being a practicing psychiatrist, much of that time in a hospital setting. The trial court did not find that his statements were an apology, but rather that was commiseration, in that the doctor went there to sympathize with the family. It was a delicate situation for Dr. Vivian because he had learned there was marital conflict before the decedent was admitted to the hospital; he knew the decedent was very angry and upset with her husband. Dr. Vivian never used the word “apology”. He said he wanted to express how sorry he was for the situation. Both the trial court and the concurring opinion from the appellate court said it is necessary to analyze why the doctor went into that room. He was no longer the doctor on the case, so he had no obligation to go there at all. He went into the room to show kindness, but his words didn’t come out the right way. What he was probably trying to say was, hey, it’s not your fault, don’t blame yourselves, this was a sick individual. The encounter was very brief, it turned hostile, and Dr. Vivian was asked to leave. The intent, the substance, of why Dr. Vivian was there must control over the form of what was said during the encounter.

The statute gives the trial court the discretion to determine whether the conduct and statements at issue fall under the statute, and that’s what the trial court did in the situation after conducting a hearing on the whole encounter and taking testimony from the three witnesses. It is a function of the trial court to apply the statute to the facts, and there was no abuse of discretion in the trial court’s determination about the doctor’s statements.

What Was On Their Minds

What The Doctor Actually Said

What is the specific statement that should be admissible, asked Justice O’Donnell? If the doctor does not have the benefit of the apology statute, that statement is an admission of liability, and admissible, is it not? (defense counsel conceded it would be).

Even if the court agrees that there can be an admission of liability and an apology in the same statement, and therefore the statutory umbrella is raised and it is inadmissible, where is the apology here, asked Justice O’Neill? Is acknowledging to the family, sitting at the side of their loved one who is intubated, that this is a terrible situation, an apology? Did the doctor ever say, “I apologize”? Where in this record can I find the word apology out of the mouth of that physician? Was the doctor asking the court to say that if he went into a room intending to apologize, and did not apologize, somehow he gets the benefit of the statute?

How could the court know what the doctor intended other than by what he said, asked Chief Justice O’Connor? The statements that both the husband and the sister testified to, did not contain the words, I’m so sorry that this happened, I share your pain, this is a terrible thing when this happens to a family, none of that? Was the doctor saying it was inevitable? The Chief went on to comment there were clearly two different sets of recollections of what had been said, noting that she personally would find it incredible that a doctor would walk in and in essence want to confess this was all his fault. But isn’t that up to the jury to determine, she asked?

Statutory Language

The statute talks about a general sense of benevolence, commented Justice Fischer. Doesn’t that mean the quality of wellbeing and kindness? Why doesn’t the doctor’s statement fit under that provision?

How should “she told me she was going to keep trying” be characterized, asked Justice O’Donnell? Isn’t that an expression of sympathy for what happened?

I don’t see how the statement that she wanted to be dead falls into the statutory language, commented Justice O’Neill.

Could the court find that apology can include an admission of fault but still find this wasn’t one, asked Justice DeWine?


Does apology mean something different than its ordinary meaning because of the context, asked Justice DeWine?

While it isn’t wholly clear from the record, it seems the doctor said he didn’t know how it happened, it was a terrible situation, but she had just told him that she wanted to be dead, that she wanted to kill herself, commented Justice O’Neill. How is that statement excluded as an apology?

Statements of Fault

As we understand the word apology, doesn’t that often include admissions of fault, asked Justice DeWine, commenting that if a kid playing basketball misses a shot and fouls someone, he might say, my bad, right? Isn’t that both an apology and an admission of fault? Would the statute not cover that?

Legislative Intent

How does what different legislatures did years later have any bearing on what other legislatures meant years before, asked Justice DeWine? Couldn’t an equally plausible view of subsequent legislative history be, some courts aren’t getting it, they aren’t doing what we originally meant, so we are going to make the law clearer? Might they want to add fault and liability out of concern that some courts have missed that issue or it seems to be an open question when they meant that from the beginning?

Isn’t the purpose of the statute to get doctors to go into the room, which is difficult, and say, “I’m sorry I am with you in your pain, I am so sorry,” noted Justice O’Donnell. Isn’t that what they want them to do?

Standard of Care

Isn’t the 15 minute observation schedule that was put in place directly related to the thought that Mrs. Stewart would attempt to do herself additional harm, asked Chief Justice O’Connor? Failure to provide constant supervision with a video or in a room that allowed for it is the deviation from the standard of care? The excluded statements were something the jury should have been able to consider in this regard?

Standard of Review

What is the standard of review in this case, asked Justice French? What about the appellate separate concurrence discussion of abuse of discretion? She commented that the statute is clear. The trial court must make a factual determination about whether the statement is one of apology, condolence or some other kind of benevolent feeling.

Why couldn’t both standards be applied here, asked Justice DeWine? Why isn’t there a legal question, which is de novo review about whether the apology statute could contain a statement of fault, and once that legal decision is made, the trial court’s determination about whether something constitutes an apology would be an abuse of discretion standard—why wouldn’t both apply?

Other Jurisdictions

As he often does, Justice O’Donnell asked about statutes in other jurisdictions. Were any similar to Ohio’s? Any case law interpreting this?

How it Looks from the Bleachers

To Professor Emerita Bettman

This one is tricky. I’m calling it for the defense, but in a split decision.  I think the court majority is likely to answer the certified question yes, that a statement of fault or admission of liability made during an apology or commiseration is inadmissible under the Ohio apology statute, but hold that what Dr. Vivian said was not an apology. That is essentially what Justice DeWine articulated toward the end of the questioning. I also think, as Justice DeWine suggested, that the issue raised involves a two-step process. The question of whether or not a statement of fault during an apology or commiseration is covered under the statute is a question of law, reviewed de novo. Then, whether the statement actually made is covered under the statute is reviewed for abuse of discretion.

So, what happens if the court answers the certified question yes, that statements of fault during an apology are covered under the statute, but finds that what Dr. Vivian said was not an apology? After that, there is a sharp split. Justice O’Neill was just relentless about how what was said was in no way an apology, but a clear admission of fault, not covered by the statute. He would clearly answer the certified question with a “no”. And while the others may all agree that what was said wasn’t an apology, I think a majority is going to find Dr. Vivian’s statements covered elsewhere under the apology statute, either as commiseration or as an awkward, poorly phrased attempt at sympathy.  Justices Fischer and O’Donnell seemed to see it that way. Even though the court won’t find that the doctor’s intent controlled, I think context clearly matters. Based on what the doctor knew about the marital discord before the suicide, it was undeniably awkward for him when he faced the family, and in context, I think it is fair to conclude he was trying, most inartfully, to be consoling.

It bears emphasizing that the trial court found as a matter of fact that Dr. Vivian’s statements were an ineffective attempt at commiseration. I think Justices French and DeWine think this part of the decision should be reviewed under an abuse of discretion standard, as the court found in Estate of Johnson v. Randall Smith, Inc., and will find the trial court’s finding on this point was not an abuse of discretion, so that’s four for the defense. The Chief seemed to be on the fence, leaning toward letting the jury hear the statements.

To Student Contributor David López-Kurtz

Before listening to the oral arguments, I believed that the court would rule the statements made by the doctor to be protected by the statutory shield. Afterward, I think the opposite.

While Ohio’s “apology statute” certainly bars apologies or statements of sympathy from admission into evidence, I do not think that the court will be willing to extend that protection to non-apology admissions of fault or liability. To that end, I do not think that the court will find the definition of “apology” as used in R.C. 2317.43 to include statements of fault, error, or liability.

Justice O’Neill was particularly pointed in his line of questioning and he left me echoing the question – “where’s the apology?” – in my head for the rest of the day, while I ruminated on the proceeding. Where was the word “apology?” Did the doctor ever say that he was sorry? Even though counsel tried to argue that it was the doctor’s intention to apologize, I have to agree with Justice O’Neill- it isn’t legally significant what the doctor wanted to do. At the end of the day, the doctor went into the room, perhaps intending to apologize, but ultimately failed to do so. It would then seem like an overextension to place those statements under the umbrella of statutory protection.

It seems that there was no real apology, so, accordingly, the court will find that there was no statutory protection. I believe that the court will remand the case for a new trial so that a jury can hear and weigh this evidence.


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