The Ohio Supreme Court recently affirmed that a health care provider’s statements of fault or statements admitting liability made during the course of apologizing to a patient or a patient’s family are prohibited from admission into evidence in a civil action pursuant to Ohio’s Apology Statute, R.C. 2317.43.
R.C. 2317.43, is intended to permit a medical provider to speak with a patient and/or a patient’s family members and express heartfelt sympathy for their pain following a negative outcome without risk of that expression of sympathy being used against the provider in court. The statute provides, in relevant part, as follows:
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 ... 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.
Id., R.C. 2317.43(A).
Until recently, however, Ohio’s appellate courts were split on how to apply the statute to instances where an apology is coupled with an admission of fault. For example, in Davis v. Wooster Orthopaedics & Sportsmedicine, 193 Ohio App.3d 581, 2011-Ohio-3199, Ohio’s Ninth District Court of Appeals determined that the Apology Statute protects “pure expressions of apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, but not admissions of fault.” Id. at ¶ 13. In reaching this conclusion, the court reasoned that “the word ‘apology’ could...
