Tuesday, April 23, 2013

It's OK To Say I'm Sorry

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio ruled  today that a health care provider’s sympathetic statements to a patient regarding  an unanticipated outcome of medical care may not be admitted as evidence of  liability in any medical malpractice   lawsuit initiated after the September 13, 2004 effective date of  legislation barring such evidence.

Applying that analysis to a  Portage County malpractice action filed in 2007, the court held that R.C. 2317.43,  Ohio’s “medical apology statute,” prevented the admission of sympathetic statements  made  by a doctor to a patient who had suffered  complications following gall bladder surgery, despite the fact that  the patient’s injury occurred and the doctor’s  statements were made in 2001, three years before the apology statute became  law.

The court’s  7-0 decision, authored by Justice Judith Ann Lanzinger, reversed a ruling by  the Eleventh District Court of Appeals.

The case  involved a medical malpractice suit filed by Jeanette Johnson against Dr.  Randall Smith, who surgically removed Mrs. Johnson’s gall bladder in April  2001. The surgery  was scheduled to be done laparoscopically. But when Mrs. Johnson’s common bile  duct was injured during the procedure (a known surgical risk), Dr. Smith  converted to an “open procedure” to repair the duct.  After the surgery, Dr. Smith explained to  Mrs. Johnson the manner in which the injury had occurred and the manner in  which he had repaired the duct.

One month later, Mrs. Johnson returned to the  hospital because of complications resulting from the bile-duct injury. Her  treatment required that she be transferred to another hospital.  Before the transfer, she became upset and  emotional. In an effort to console her, Dr. Smith took Mrs. Johnson’s hand and  attempted to calm her by saying, “I take full responsibility for this. Everything  will be okay.”

In August 2002, Mrs. Johnson and her husband,  Harvey Johnson, filed a medical malpractice suit against Dr. Smith and the  corporation through which he conducted his practice. They voluntarily dismissed  that action in September 2006. In a new complaint filed July 26, 2007,  the Johnsons alleged that Dr. Smith had  rendered negligent medical treatment to Mrs. Johnson and that Mr. Johnson had  sustained a loss of consortium.

A jury trial was scheduled for June  2010.  Before trial, Dr. Smith submitted  a motion to prohibit the introduction of any evidence regarding the statement  of apology that he made to Mrs. Johnson before her transfer to the second  hospital. Dr. Smith asserted that his statement constituted an expression of  sympathy that could not be admitted into evidence under R.C. 2317.43.

The Johnsons submitted two responses to  Smith’s motion.  First, they argued that  the statement was not an apology or expression of sympathy, but rather an  admission of the doctor’s negligence.   Second, they argued that R.C. 2317.43 did not apply, because it was  enacted and took effect three years after the malpractice claim arose and the  statement was made. The trial court ruled that any evidence regarding the  doctor’s statement would be inadmissible at trial, concluding that witness  testimony about Smith’s words and gestures at the time he made his statement indicated  his intent to console and express sympathy for Johnson, and therefore the  statement was covered by the apology statute.

The jury returned a general verdict in favor  of Dr. Smith on the two claims asserted by the Johnsons following a trial at  which no evidence of Smith’s statement was presented. 

The Johnsons appealed, and the Eleventh  District Court of Appeals reversed the trial court’s judgment, holding that the  trial court had erred in applying R.C. 2317.43 because the General Assembly had  not expressly stated its intent that the statute should apply retroactively.  The court of appeals ordered a new trial. One judge dissented, stating that the  pivotal issue was the date on which the  suit was initiated not  the date on which a statement was made or the  plaintiff’s claim arose.

Smith sought and was granted Supreme Court  review of the Eleventh District’s ruling

In today’s unanimous decision, Justice  Lanzinger wrote: “The General Assembly, in enacting R.C. 2317.43, prohibited  the introduction of any sympathetic statements and gestures made by a  healthcare provider in any civil action ‘brought’ by an alleged victim of an  unanticipated outcome of medical care.   The effective date of the statute was September 13, 2004.”

“The  language of RC. 2317.43(A) is clear and unambiguous. By its express terms, R.C.  2317.43 applies to ‘any civil action brought’ by persons described in the  statute. This means that the statute applies to a civil lawsuit filed after the  effective date of the statute. The Johnsons argue that they ‘brought’ this  civil action when they initially filed their original complaint against Dr.  Smith in August 2002. That action, however, was voluntarily dismissed in  2006.  When an action has been  voluntarily dismissed, Ohio law treats the previously filed action as if it had  never been commenced.  ...  The action filed by the Johnsons in 2002 must  be treated as if it never existed.  The Johnsons  ‘brought’ or commenced this civil action upon the filing of their complaint on  July 26, 2007. When this action was brought by the Johnsons, R.C. 2317.43 had  been in effect for almost three years.”

“The Johnsons’ filing of this  case on July 26, 2007, meant that the statute applied. ... Because we have  determined that the statute applies, the next step is to determine whether Dr.  Smith’s statement was properly excluded.   ... (D)ecisions granting or denying a motion in  limine are reviewed under an abuse-of-discretion standard of review.  ...  For an abuse of discretion to have occurred,  the trial court must have taken action that is unreasonable, arbitrary, or  unconscionable.” 

“In this case, the trial court heard  testimony from witnesses before ruling on the motion in limine.  Based upon its observation, the court  concluded that ‘the statements and gestures and actions are covered under 2317.43.’  The court of appeals, in reviewing the decision, did not analyze under an
    abuse-of-discretion standard whether the  trial court had acted unreasonably, arbitrarily, or unconscionably in reaching  its conclusion. Thus, it was improper to reverse the trial court’s decision to  exclude Dr. Smith’s statement.  The trial  court had determined that Dr. Smith was faced with a distressed patient who was  upset and made a statement that was designed to comfort his patient.  This is precisely the type of evidence that  R.C. 2317.43 was designed to exclude as evidence of liability in a  medical-malpractice case.”

“Dr. Smith’s  statement was properly excluded pursuant to R.C. 2317.43. We therefore reverse the judgment  of the Eleventh District Court of Appeals and remand the case to the trial  court to reinstate the jury’s verdict and the trial court’s judgment.”

Justice  Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor and Justices  Sharon L. Kennedy, Judith L. French and William M. O’Neill. Justices Paul E.  Pfeifer and Terrence O’Donnell concurred in judgment only.

The court's opinion is linked here. (Mike Frisch)


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