Stewart v. Vivian

151 Ohio St.3d 574

91 N.E.3d 716

2017 Ohio 7526

STEWART, Appellant,

v.VIVIAN, Appellee, et al.

No. 2016-1013

Supreme Court of Ohio.

Submitted April 6, 2017

Decided September 12, 2017

Stagnaro, Saba & Patterson Co., L.P.A., Peter A. Saba, Jeffrey M. Nye, and Sharon J. Sobers, Cincinnati, for appellant, individually and as the administrator of the estate of Michelle Stewart.

Arnzen, Storm & Turner, P.S.C., and Aaron A. VanderLaan, for appellee.

Bricker & Eckler, L.L.P., Anne Marie Sferra, and Noorjahan Rahman, Columbus, urging affirmance for amici curiae Ohio State Medical Association, Ohio Hospital Association, and Ohio Osteopathic Association.

Tucker Ellis, L.L.P., Irene C. Keyse–Walker, and Susan M. Audey, Cleveland, urging affirmance for amicus curiae Academy of Medicine of Cleveland and Northern Ohio.

Kennedy, J.{¶ 1} This case was certified to this court by the Twelfth District Court of Appeals after it determined that its judgment conflicted with a judgment of the Ninth District Court of Appeals. We determined that a conflict exists and ordered the parties to brief the following question:

"[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 in a civil action under Ohio's apology statute, R.C. 2317.43 ?"

146 Ohio St.3d 1501, 2016-Ohio-5792, 58 N.E.3d 1173, quoting the court of appeals' July 7, 2016 entry.

{¶ 2} We hold that for purposes of R.C. 2317.43(A), 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 acknowledgment that the patient's medical care fell below the standard of care.

{¶ 3} We therefore answer the certified question in the affirmative and affirm the judgment of the Twelfth District Court of Appeals.

FACTS

{¶ 4} In the early evening of February 19, 2010, Michelle Stewart attempted suicide. She was transported to the emergency department of Mt. Orab MediCenter. Around midnight, she was transferred to the psychiatric unit at Mercy Hospital Clermont. Appellee, Rodney E. Vivian, M.D., was the admitting physician.

{¶ 5} Leslie Wiggs, a registered nurse, conducted an initial assessment of Michelle upon admission to the psychiatric unit. After completing the assessment, Wiggs conferred with Dr. Vivian.

{¶ 6} After this discussion, Dr. Vivian ordered that a staff member of the psychiatric unit visually observe Michelle every 15 minutes. This order remained unchanged during her stay in the psychiatric unit.

{¶ 7} At approximately 6:00 p.m. the next day, Michelle's husband, appellant, Dennis Stewart, arrived at the psychiatric unit to visit her. Upon entering her room, he found her unconscious as a result of hanging. Thereafter, she was transferred to the intensive-care unit ("ICU") and placed on life support.

{¶ 8} Two days later, Dr. Vivian went to Michelle's ICU room to speak with her family. After Dr. Vivian briefly spoke to several family members in the room, one of them asked him to leave, which he did.

{¶ 9} On February 23, 2010, a neurologist informed Dennis that neurological testing indicated that Michelle would not recover. The following day, Dennis directed that life support be discontinued. A couple of hours later, Michelle died.

PROCEDURAL HISTORY

Trial–Court Proceedings

{¶ 10} On February 17, 2011, Dennis, individually and as administrator of Michelle's estate, filed suit against Dr. Vivian and Mercy Hospital Clermont. Dennis asserted claims of medical malpractice, loss of spousal consortium, wrongful death, and loss of chance against Dr. Vivian. He also asserted several claims against Mercy.

{¶ 11} In January 2013, the claims against Mercy were dismissed after Dennis and Mercy reached a settlement. The action against Dr. Vivian proceeded, and Dr. Vivian filed motions in limine to prohibit the admission of certain evidence at trial.

{¶ 12} One of Dr. Vivian's motions in limine sought to exclude statements he made to Michelle's family in her ICU room. Dr. Vivian argued that the statements were inadmissible pursuant to R.C. 2317.43, also known as the apology statute, because the statements had been "intended to express commiseration, condolence, or sympathy." In response, Dennis argued that Dr. Vivian's statements were admissible because they were not "pure expression[s] of apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence."

{¶ 13} At a hearing held on Dr. Vivian's motion in limine, the trial court heard testimony regarding Dr. Vivian's visit to Michelle's ICU room from Stacey Sackenheim (Michelle's sister), Dennis, and Dr. Vivian. Each offered a different version of what Dr. Vivian had said before he was asked to leave the room.¹

{¶ 14} Sackenheim testified:

Dr. Vivian just walked in through the door * * * and walked over to—toward the end of Michelle's bed, and kind of stood for a moment and then just said, so what do you think happened here?

And I believe Dennis responded and ex—and said, well, obviously she tried to kill herself. And [Dr. Vivian] said, yeah, she said she was going to do that. She told me she would keep trying.

{¶ 15} Dennis recounted:

Dr. Vivian walked in. I kind of tried to ignore him basically. Kept my focus mostly on Michelle. I do remember him saying a few things. I don't remember him asking me anything about how it happened. I—I just remember him saying that he didn't know how it happened; it was a terrible situation, but she had just told him that she still wanted to be dead, that she wanted to kill herself * * *.

{¶ 16} The court concluded that there were "significant differences" between Sackenheim's and Dennis's testimony and that "it's probably impossible to reconcile" their respective versions. And the court found that Dr. Vivian's statements were an "attempt at commiseration" and therefore inadmissible under the apology statute. Accordingly, the court granted the motion in limine and excluded Dr. Vivian's statements.

{¶ 17} The matter proceeded to trial. The jury returned a verdict in favor of Dr. Vivian, concluding that he was not negligent in his assessment, care, or treatment of Michelle.

Appellate Proceedings

{¶ 18} Dennis timely appealed to the Twelfth District Court of Appeals, raising, among other issues, the trial court's exclusion of Dr. Vivian's statements in Michelle's ICU room. The appellate court determined that R.C. 2317.43 is ambiguous because according to the term's dictionary definition, "apology" "may or may not include an admission of fault." 2016-Ohio-2892, 64 N.E.3d 606, ¶ 47. Therefore, the court proceeded to consider the statute's legislative history, and it concluded that the General Assembly's intent was to protect all statements of apology—including those admitting fault—under R.C. 2317.43(A). Id. at ¶ 47, 50. Accordingly, the Twelfth District concluded that Dr. Vivian's statements were correctly excluded and affirmed the trial court's ruling. Id .

The Conflict Case

{¶ 19} In Davis v. Wooster Orthopaedics & Sports Medicine, Inc. , 193 Ohio App.3d 581, 2011-Ohio-3199, 952 N.E.2d 1216 (9th Dist.), the Ninth District determined that R.C. 2317.43(A) protects from admission "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 Ninth District reasoned that "the word ‘apology’ could reasonably include at least an implication of guilt or fault. On the other hand, ‘when hearing that someone's relative has died, it is common etiquette to say, "I'm sorry," but no one would take that as a confession of having caused the death.’ " Id. at ¶ 10, quoting Schaaf v. Kaufman , 850 A.2d 655, 664 (Pa.Super.Ct.2004). Nevertheless, considering "apology" in the context of the other sentiments listed in R.C. 2317.43(A), the court determined that it was not the intent of the General Assembly to protect statements of fault from admission as evidence. Id. The other sentiments listed, the court reasoned, "clearly do not convey any sense of fault or liability, indicating that the statute was intended to protect apologies devoid of any acknowledgment of fault." Id.

{¶ 20} The Ninth District then examined the legislative history of R.C. 2317.43 and noted that when the apology-statute bill was introduced in the General Assembly, "the ‘Bill Summary’ indicated that it would ‘[p]rohibit the use of a defendant's statement of sympathy as evidence in a medical liability action.’ " Id. at ¶ 11, quoting Legislative Service Commission Analysis of Sub.H.B. No. 215, as reported by H. Insurance (2004). The court observed that the bill synopsis explained that " ‘a statement of sympathy includes any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence.’ " Id. , quoting Legislative Service Commission Analysis of Sub.H.B. No. 215. The court reasoned that "[t]he General Assembly's decision to define ‘a statement of sympathy’ as including a ‘statement[ ] * * * expressing apology’ demonstrates an intention to use the word ‘apology’ to mean ‘only a statement of condolence or sympathy, without including any expression of fault or liability.’ " Id. at ¶ 12. The court further reasoned that if the legislative intent had been to prohibit the admission of all statements of fault by medical professionals, the statute could have prohibited the admission of "all ‘admissions of liability’ or ‘statements against interest’ " instead of limiting protected statements to those " ‘expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence.’ " Id. , quoting R.C. 2317.43(A).

ANALYSIS

The Apology Statute— R.C. 2317.43

{¶ 21} Ohio's apology statute, R.C. 2317.43, provides:

In any civil action brought by an alleged victim of

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