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The Ohio Supreme Court Upholds the Physician Apology Statute

By Bret C. Perry, Esq.

Recently, the Ohio Supreme Court issued its decision in the matter of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507, 989 N.E.2d 35, holding that a physician's gestures, conduct, and expression of sympathy are not admissible at the time of trial pursuant to R.C. 2317.43. The Court held that a physician's statements to a patient that he took full responsibility for the situation were not admissible, because his gestures, conduct and statements were covered under R.C. 2317.43. Further, the Ohio Supreme Court also held that the statute applies to any cause of action filed after September 13, 2004.

By way of procedural history, in 2007, the plaintiff-patient re-filed a medical malpractice action against a physician and his corporation after plaintiff had complications following gall bladder surgery in April 2001. The case proceeded to trial and defendants filed a motion to exclude the physician's statements of apology pursuant to R.C. 2317.43. The trial court conducted a hearing and the evidence showed that the physician made a statement of apology to the plaintiff, acted in a compassionate manner, and was sympathetic and comforting. The physician also stated that he took responsibility for the situation. Accordingly, the trial court determined that the statements were not admissible under R.C. 2317.43. A jury verdict was returned in the defendants' favor.

The Eleventh District Court of Appeals reversed the jury verdict and determined that the trial court had erred in applying R.C. 2317.43, because the statute was enacted and took effect after the malpractice claim arose and the statement was made. The appellate court also held that jurors could have determined that the words "take full responsibility" when taken in context meant that the physician was admitting fault.

On appeal to the Ohio Supreme Court, the decision of the Eleventh District Court of Appeals was reversed and the case remanded to the trial court to reinstate the jury's verdict and trial court's judgment in favor of the defendants. The Court held that R.C. 2317.43 applies to any cause of action filed after September 13, 2004. The Court also held that the physician's statements were properly excluded under R.C. 2317.43, explaining that "it was improper to reverse the trial court's decision to exclude [the physician's] statement. The trial court had determined that [the physician] was faced with a distressed patient who was upset and made a statement that was designed to comfort his patient." Accordingly, the Ohio Supreme Court held that this is precisely the type of evidence that R.C. 2317.43 was designed to exclude as evidence of liability in a medical malpractice action.

The matter of Johnson was argued before the Ohio Supreme Court by Bret C. Perry, Esq. on behalf of Dr. Randall Smith. In addition, Brian Lange, Esq. authored an amicus brief on behalf of the Academy of Medicine of Cleve-land and Northeast Ohio urging that the Ohio Supreme Court up-hold the Physician Apology Statute governed by R.C. 2317.43 and reverse the decision of the Eleventh District Court of Appeals.