Issue link: https://viewer.e-digitaledition.com/i/470290
T EN YEARS AGO, the Ohio General Assembly passed its first "I'm Sorry" legislation, designed to prevent a physician's apologetic expressions of sympathy, commiseration, condolence, compassion, or general sense of benevolence to a patient or patient's family following an unanticipated clinical outcome, from being introduced into evidence in a malpractice action as an admission of liability. Such legislation, which encourages discussions between physicians and patients, also has a prophylactic effect. Studies at Johns Hopkins University and the University of Michigan have shown that nothing is more effective in preventing malpractice claims from being filed than a sincerely offered apology. Ohio's version of "I'm Sorry" legislation is not as broad as the approach Colorado and several other states have adopted, which renders a physician's admitting fault, in addition to expressing sympathy, inadmissible into evidence. Over the years, plaintiff attorneys have challenged the boundaries to which Ohio law protects physicians, arguing that that statutory language blurs the distinction between "apology" and "fault." In a wrong- ful death suit against an Ohio surgeon, the trial court permitted the patient's family to testify that the surgeon admitted to them that he took "full responsibility" for an unfortunate medical mishap. On appeal, counsel for the surgeon argued that Ohio's apology statute was intended to include statements of responsibility as being inadmissible. The appellate court disagreed, holding that, in the course of apologizing to the patient's family, the surgeon's accepting "full responsibility" for his actions was not protected and could come into evidence at trial as an admission against interest and liability. That decision was represented as a significant step backwards, which under- standably caused physicians to be wary about what they could say to patients or their families who seek and deserve candid answers. Ohio Representative Peter Stautberg sought to redress this dilemma by sponsoring H.B. 276, which would expand Ohio's "I'm Sorry" statute to conform more to the approach already on the books in Colorado, Georgia, Massachusetts, Arizona, Connecticut and South Carolina. House Bill 276 would amend Ohio Revised Code Section 2317.43 by adding "error" and "fault" to the list of inadmis- sible apologetic expressions made to a patient or patient's family following an unanticipated outcome of medical care. The bill f ur t her would provide that communica- tions by a physician (other hea lth ca re provider or their representatives) to the patient or patient's family, relatives, acquaintances, or representative (including attorney), follow ing a n untoward clinical outcome of medical care, which are part of a review made in good faith into the cause of, or reason for, the outcome, a lso would be inadmis- sible as evidence, unless communications are recorded in the patient's medical record. The bill, which was passed by the House last November and now resides in the Senate, would give physicians greater latitude in having frank discus- sions with patients and their families or representatives without fearing that what they say would come back to haunt them. It also serves as a reminder for physicians to work cooperatively with counsel or hospital risk management, and to keep those communications oral and not record them in the medical record. Jo e Fe l t e s i s a n a t t o r n e y w i t h Buckingham, Doolittle & Burroughs in Canton and a member of its Health & Medicine Practice Group. He is also the managing partner of Buckingham Canton. For more information about the law firm, go to www.bdblaw.com or e-mail Mr. Feltes at JFeltes@BDBLAW.com. ■ Expanding Ohio's by Joseph J. Feltes, JD "I'm Sorry" Law House Bill 276 would amend Ohio Revised Code Section 2317.43 by adding "error" and "fault" to the list of inadmissible apologetic expressions made to a patient or patient's family following an unanticipated outcome of medical care. ++++++++++++++++++++++++ + +++ + +++ ++++++++++++++++++++++++ BUSINESS SECTION 1 8 | Cleveland/Akron/Canton MD NEWS ■ M D N E W S . CO M ■ M A R C H /A P R I L 2 0 1 5