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Physician’s Statements in Patient’s ICU Room Protected by Apology Statute


A woman attempted suicide. The woman was transported to the emergency room (ER). From the ER, the woman was admitted to the hospital’s psychiatric unit.

 

A registered nurse (RN) conducted an initial assessment of the woman upon admission to the psychiatric unit. After completing the assessment, the (RN) conferred with the admitting physician.

 

After this discussion, the admitting physician ordered that a staff member of the psychiatric unit visually observe the woman every 15 minutes. This order remained unchanged during the woman’s stay in the psychiatric unit.

 

The following evening the woman’s husband arrived at the psychiatric unit to visit. Upon entering the woman’s room, he found the woman unconscious as a result of hanging. The woman was transferred to the intensive-care unit (ICU) and placed on life support.

 

Two days later, the admitting physician went to the woman’s ICU room to speak with the woman’s family. After the admitting physician briefly spoke to several family members in the room, one of them asked him to leave, which the admitting physician did.

 

Four days after the woman presented to the hospital, a neurologist informed the husband that neurological testing indicated that the woman would not recover. The following day, the husband directed that life support be discontinued. A couple of hours later, the woman died.

 

The husband, individually and as administrator of his wife’s estate, sued the admitting physician. The complaint asserted claims of medical malpractice, loss of spousal consortium, wrongful death, and loss of chance.

 

The admitting physician filed a motion in limine seeking to exclude the statements the admitting physician made to the woman’s family in the ICU. The motion argued that the statements were inadmissible pursuant to R.C. 2317.43, also known as Ohio’s apology statute, because the statements had been intended to express commiseration, condolence, or sympathy. In response, the husband argued that the admitting physician’s statements were admissible because they were not pure expressions of apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence.

 

At a hearing, the trial court heard testimony regarding the admitting physician’s visit to the woman’s ICU room from the woman’s sister, the husband, and the admitting physician. Each offered a different version of what the admitting physician had said before being asked to leave the room. The trial court held that the admitting physician’s statements were an attempt at commiseration and therefore inadmissible under the apology statute. Accordingly, the trial court granted the motion in limine and excluded the admitting physician’s statements.

 

The case proceeded to trial. The jury returned a verdict in favor of the admitting physician, concluding that the admitting physician was not negligent in the assessment, care, or treatment of the woman.

 

The Twelfth District Court of Appeals for Clermont County affirmed. The appellate court held that Ohio’s apology statute protected all statements of apology, including those admitting fault, and concluded that the admitting physician’s statements were correctly excluded.

 

The Supreme Court of Ohio affirmed. The court held that, for purposes of Ohio’s apology statute, 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.

 

For purposes of Ohio’s apology statute, 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. 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 are prohibited from admission into evidence in a civil action under Ohio’s apology statute. Therefore, the trial court correctly excluded the admitting physician’s statements made in the woman’s ICU room.

 

The Supreme Court of Ohio affirmed the trial court’s exclusion of the admitting physician’s statements made in the woman’s ICU room.

 

Stewart v. Vivian, 2017 WL 4082064 (Ohio, September 12, 2017) (not designated for publication). 

 

 

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