MDNews - Cleveland-Akron-Canton

+++++++++++++++++++++++++ + +++ + BuSINESS SECTIoN +++ +++++++++++++++++++++++++ Ohio Supreme Court Upholds and Clarifies Physician Apology Statute by Justin S. greenfelder, esq. IN 2003, OHIO LAWMAkERS set out to address the troubling proliferation of medical malpractice lawsuits against Ohio physicians. Prior attempts at tort reform had failed, but the General Assembly decided to take another crack at it. One law enacted as part of this new wave of tort reform was a prohibition against the use of a physician's statement of apology to a patient or his family following a bad result. This law, codified as Revised Code Section 2317.43, states: In any civil action brought by an alleged victim of an unanticipated outcome of medical care…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 health care 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. This statute allows a physician to show compassion for a patient or 36 | Cleveland/Akron/Canton MD News grieving family without fear of having his words used against him. This statute was seldom applied until two cases decided in 2011 placed the scope of this law into question. In Davis v. Wooster Orthopaedics & Sports Medicine Inc., an orthopaedic surgeon attempted to comfort the family of a patient following a mishap during back surgery. The surgeon told the family that he had nicked an artery and took "full responsibility" for it. The court concluded that this was not a statement of apology or sympathy and was admissible in court. A statement of fault or responsibility, the court believed, was not the same as an apology and if the lawmakers intended to include statements of fault they would have said so. Similarly, in Johnson v. Randall Smith Inc., a surgeon attempted to comfort a patient following a complication during gall bladder surgery by saying: "I take full responsibility for this. Everything will be OK." The court believed that the words "take full responsibility" when taken in context were an admission of fault that was not excluded by the statute. Thankfully, the Ohio Supreme Court clarified the application of the apology law. On April 23, 2013, the Court reversed the decision in Johnson and concluded that when a doctor, faced with a distressed patient who is upset, makes a statement designed to comfort the patient, this is ■ MDNEWS.COM ■ JULY-AUGUST 2013 precisely the type of evidence that the statute was designed to exclude. The Court also clarified that the apology statute applies to any case filed after the effective date of the statute (September 13, 2004) regardless of when the statement was made. This ruling is a significant victory for Ohio physicians. The Supreme Court has made clear that a doctor can express sympathy and accept responsibility without fear that such statements could be used against him. However, while not precisely addressed by the Court, pure statements of fault will still be admissible as a statement against interest. Thus, physicians should take care when apologizing and commiserating with their patients not to "fall on their swords." A statement such as, "I made a mistake," or "that was my fault," will be admissible in court. But an apology or an expression of responsibility without admission of fault will not. This ruling sends the clear message to doctors that it is OK to be compassionate. Justin Greenfelder is an attorney with Buckingham, Doolittle & Burroughs in Canton, OH, and a partner in its health and medicine department. For more information about the law firm, go to www.bdblaw.com or e-mail Mr. Greenfelder at JGreenfelder@BDBLAW.com. ■

• Cover