Earlier this week, the Ohio Supreme Court continued its decade-long campaign to protect doctors at the expense of injured patients. First it was the arbitrary “caps” on damages, heightened pleading standards, and shortened statute of limitations. Now, doctors can even admit they were negligent, tell you exactly how they were negligent, and explain why it should not have happened, yet simply couple all those statements with an apology for the court to deem those statements inadmissible.
On September 12, 2017, the Ohio Supreme Court decided Stewart v. Vivian, 2017-Ohio-7526, a medical malpractice case involving whether a physician’s statement of liability is admissible when the statement is coupled with an apology. This case stems from Ohio’s apology statute, R.C. 2317.43, which provides that patients may not use a physician’s apology or expression of sympathy against the physician to show fault or liability. The statute, on its face, makes sense. We would rather have physicians consoling patients and loved ones during tough times without having their apologies or expressions of sympathy be used against them in court. This allows doctors to be human beings during a time when a patient’s life could be changed forever.
However, before this decision, Ohio law recognized statements of liability and expressions of sympathy as separate and distinct, even if they were made during the same sentence. For example, a statement such as “I am so sorry you will have nerve damage for the rest of you life due to my mistake” consists of two parts – an apology and an admission of fault. Now, such an admission will no longer be admissible in court, even if the doctor now claims he did nothing wrong.
It is important that no such protections exists for any other profession, nor do they exist for individuals involved in a car accident. Take this scenario: Car A rear ends Car B and the driver of Car A gets out and states “I’m so sorry that I hit you, I was distracted by the radio and did not see you stop”. This statement of liability – “I hit you because I was distracted by the radio” – would be admissible as evidence in this circumstance. Which begs the question: why are physicians getting a free pass? And why are we letting the Ohio legislature and Supreme Court allow them to do so?