Are a health care provider’s statements of fault or statements admitting liability made during the course of apologizing or commiserating with a patient or the patient’s family prohibited from admission into evidence under Ohio’s apology statute? This question was addressed by the Ohio Supreme Court in a recent ruling in Stewart v. Vivian, whereby the Supreme Court affirmed lower court rulings not to admit the statements of a physician in a medical malpractice lawsuit that included expressions of regret to a patient’s family along with the admission of fault.

Ohio Revised Code 2317.43, also known as Ohio’s “apology statute,” excludes certain statements from evidence and states:

“In any civil action brought by an alleged victim of an unanticipated outcome of medical care or in any arbitration proceeding related to such a civil action, 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.”

At issue in Stewart v. Vivian were an apology and statements made to the family of a patient who was admitted to a psychiatric unit and subsequently hung herself the next day even though she was under personal observation every 15 minutes. Her physician was sued for medical malpractice and wrongful death, among other claims. The trial court and 12th District Court of Appeals both ruled that the physician’s statements to the patient’s family were covered by the apology statute and thus inadmissible.

On its review, the Ohio Supreme Court looked at the dictionary definition of “apology” because the term was not defined by the General Assembly for purposes of the apology statute and found the plain and ordinary meaning of the term was unambiguous. The Supreme Court concluded that “for purposes of O.R.C. 2317.44, a ‘statement … expressing apology’ is a statement that expresses a feeling of regret for an unanticipated outcome of the patient’s medical care and may include an acknowledgement that the patient’s medical care fell below the standard of care.”

The ruling in Stewart v. Vivian should be welcome news to Ohio healthcare providers, as they can issue apologies and speak freely to patients (or their families) after adverse medical outcomes without any lingering doubts that their words will be used in malpractice actions against them. The Ohio Hospital Association, the Ohio State Medical Association, the Ohio Osteopathic Association and the Academy of Medicine of Cleveland and Northern Ohio submitted amicus curae briefs in support of the Ohio Supreme Court affirming the lower courts’ decisions to exclude the physician’s statements in this case.