On September 12, 2017, the Supreme Court of Ohio handed down a merit decision in Stewart v. Vivian, Slip Opinion No. 2017-Ohio-7526. The court was asked to answer the following certified question:
“[Are] 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***prohibited from admission [into] evidence in a civil action under Ohio’s apology statute, R.C. 2317.43?”
In an opinion written by Justice Kennedy, the Court unanimously agreed that the question should be answered “yes,” holding that a health care provider’s statements of fault made during an apology are to be excluded from evidence under Ohio’s apology statute. But then the Court split 5-2 over whether the statements actually made by Dr. Vivian were covered by the statute and properly excluded. The majority found that they were covered and properly excluded. Chief Justice O’Connor, joined by Justice O’Neill, would find that Dr. Vivian’s statements did not express apology, and therefore should have been admitted. The case was argued April 6, 2017.
Here is the text of Ohio’s apology statute:
R.C. 2317.43 (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.)
Michelle Stewart attempted suicide in the early evening of February 19, 2010. Ultimately, she was transferred to the psychiatric unit at Mercy Hospital Clermont. Appellee, Dr. Rodney Vivian, was the admitting physician. Dr. Vivian ordered staff to visually observe Michelle every 15 minutes. At about 6:00 p.m. the following day, Michelle’s husband, appellant Dennis Stewart, came to visit her, and found her unconscious from a hanging attempt. Michelle was transferred to the ICU and placed on life support.
Two days later, Dr. Vivian went to Michelle’s room to speak with her family. What was said during this meeting is at the heart of this lawsuit. Dr. Vivian spoke to the family briefly, and was asked to leave, which he did. A couple of days later Michelle was removed from life support, and she died.
Dennis Stewart, personally and as administrator of Michelle’s estate, filed suit against Dr. Vivian and Mercy Hospital Clermont for medical malpractice, loss of consortium, wrongful death, and loss of chance of survival. Mercy settled with Dennis, and the case against Dr. Vivian went to trial.
Dr. Vivian filed a motion in limine to keep his statements in the ICU out of the trial, arguing they were inadmissible under Ohio’s apology statute. Dennis argued they should be admitted. The trial court heard three different and irreconcilable versions of what was said that day in the ICU from Michelle’s sister, from Dennis, and from Dr. Vivian. Ultimately, the trial court found that Dr. Vivian’s statements were an ineffective attempt at commiseration, and thus inadmissible under the apology statute. The case proceeded to trial, where the jury returned a verdict in favor of Dr. Vivian. Dennis appealed.
The Twelfth District upheld the judgment entered on the jury’s verdict, agreeing that Dr. Vivian’s statements should have been excluded at trial. In doing so, the appeals court found R.C. 2317.43 ambiguous, because the term “apology” may or may not include an admission of fault. So the appeals court went on to consider the statute’s legislative history, and concluded that the intent of the legislature was to protect all statements of apology including statements of fault.
The Conflict Case
In 2011, in Davis v. Wooster Orthopaedics & Sports Medicine, Inc. 2011-Ohio-3199 (9th Dist.) the Ninth District Court of Appeals held that 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. When viewing “apology” in the context of the other sentiments expressed in the statute, the court concluded that it was not the intent of the legislature to protect statements of fault from admission into evidence.
The Apology Statute is Not Ambiguous
Both the Twelfth District and the Ninth District had concluded the apology statute was ambiguous. The high court told them they were both wrong. So there was no reason to examine legislative intent.
So, Let’s Look in the Dictionary
O.K. So the word apology isn’t defined in the unambiguous apology statute. When that happens, Justice Kennedy seems to favor using dictionary definitions. She notes that Webster’s Third International has four for the word apology, and found most apt, definition number three. Here it goes:
“An acknowledgement intended as an atonement for some improper or injurious remark or act: an admission to another of a wrong or discourtesy done him accompanied by an expression of regret.***”
So now we apply this definition to this situation. The Court finds that “[u]nder this plain and ordinary meaning of “apology,” for purposes of R.C. 2317.43(A), a “statement * * * expressing apology” is a statement that expresses a feeling of regret for an unanticipated outcome of the patient’s medical care and may include an acknowledgment that the patient’s medical care fell below the standard of care.” In other words, apology includes an admission of fault.
Viola! Dr. Vivian’s statements to the family in the ICU were properly excluded. The Twelfth District’s judgment is affirmed, but on different grounds.
The Chief’s Position
While the Chief would also answer the certified question yes, she parts company with the majority because she would not find that Dr. Vivian’s statements were statements expressing apology under the statute, and thus should not have been excluded on that basis. She would reverse the judgment of the Twelfth District, and send the case back to the trial court.
Trial Court’s Determination About the Statements an Abuse of Discretion
The trial judge ultimately determined that Dr. Vivian’s statements were an ineffective attempt at commiseration, and should be excluded. The Chief found that decision an abuse of discretion, under the unreasonableness prong. To her, the statute “does not cover statements merely intending or attempting to express commiseration or a feeling of regret, or ones that do so only obliquely.”
The Chief also reviews who said what that day in the ICU room, and concluded that Dr. Vivian essentially just asked what everyone thought happened and said he didn’t know how it happened, finding neither statement/question an apology.
“Although I do not believe that the statute must be rigidly construed to cover only those statements including the words “I apologize” or “I sympathize,” there must be a limit based on the actual content of the statements and not the intention of the speaker,” O’Connor wrote. “If not, a health-care provider could render any statement inadmissible simply by affirming a subjective intent to apologize or to console. Wherever we draw the line on what constitutes a “statement expressing apology,” it should not encompass vague statements that, at best, might constitute expressions of shock and surprise but that have no indicia of apology, commiseration, or regret.”
Justice O’Neill joined this decision.
I correctly thought the court would answer the certified question with a yes, and that there would be a split about how to characterize Dr. Vivian’s statement. I incorrectly thought a majority would not find Dr. Vivian’s statements to be an apology, but correctly thought they would still find in his favor. I thought a majority would find his statements properly excluded elsewhere under the apology statute, either as commiseration or as an awkward, poorly phrased attempt at sympathy.
It was equally clear at oral argument that Justice O’Neill adamantly did not see the statements as an apology and would have let them in, and that Chief Justice O’Connor was also leaning that way. I was surprised that the Chief went so far as to find the trial court’s characterization of the statements an abuse of discretion. That’s unusual.
Would it have made any difference had the jury heard Dr. Vivian’s statements to the family? Who knows? Suicide cases are particularly difficult, I think, and for a psychiatrist, Dr. Vivian certainly wasn’t very skilled at communicating with grief-stricken relatives. According to the bill when it was passed, the purpose of the apology statute was to improve the physician/patient relationship when medical errors take place. Clearly, that didn’t happen here.