In Estate of Johnson v. Smith, Supreme Court of Ohio recently addressed Ohio’s “apology statute” (R.C. 2317.43) which prohibits the use of a physician’s statement of sympathy to a victim as evidence of an admission of liability, and prohibits the statement’s use in medical malpractice cases. The protected statements are those expressing sympathy, empathy, or condolence to the patient. For example, a statement from a doctor to a patient that the doctor is “so sorry this happened to you,” is protected by the statute.
In Johnson, the Court determined that a doctor’s statement that he “took full responsibility” for the patient’s injury, was covered by the apology statute, and prohibited from being used as evidence. Such a decision means that the Supreme Court is getting ever closer to protecting a doctor’s statement that the injury was his or her “fault” or that he or she “messed up.” Unfortunately, the Johnson decision clouded the waters between sympathetic-type statements and admissions of fault.
There is nothing wrong with excluding expressions of sympathy, empathy, or condolence, since those can be misconstrued to be admissions of fault. That was the true intention of the apology statute from the outset in Ohio and other states. However, there is no way to misconstrue acknowledgement of “responsibility” as an expression of sympathy, empathy, or compassion. A doctor only has “responsibility” for an outcome if he caused the outcome. This is not the purpose of the apology statute, yet the Supreme Court has expanded the statute’s definition to include such statements.
The big question remains, will any statement by a doctor to a patient be protected? If a doctor says “I’m sorry, your injury is my fault” or “I caused your injury,” is that inadmissible as well? What if the statement was in writing or recorded somehow? Would this still be inadmissible to show the doctor’s expression of fault? Unfortunately, if the Court is protecting statements accepting “responsibility” for an outcome, can a statement acknowledging “fault” for an outcome be that far from protection?