In 2004, Ohio enacted a controversial Apology Statute with a stated purpose of improving the physician/patient relationship when medical errors take place. The statute permits a health care professional to apologize to a patient when a medical error occurs in the care of a patient or a procedure leads to an undesirable result. The apology (according to the statute) cannot later be used against the health care professional in court if a medical mistake results in a medical malpractice case.
Ohio Revised Code Section 2317.43(A) provides that “statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence [made by a physician] * * * are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.”
All of this sounds benign enough until one sees how this might play out in the context of an undesired medical result and/or a medical malpractice case.
Studies have shown that patients are less likely to seek a legal resolution to a medical error when they receive an apology from their doctor. Doctors have complained that the potential for litigation chills the physician/patient relationship when medical errors take place as the doctor who committed the error may fear anything he/she says might be used against him/her in court. The result often leaves a patient with a cold defensive feeling from their doctor following the medical error or undesired result. The Apology Statute seems to aid this and, at least in aspirational terms, seems to be a good thing for patients and doctors. With the protection of the Apology Statute, the offending doctor can apologize for the error and explain treatment options going forward under circumstances where the patient feels empathy from the negligent physician. One of the dangers of the Apology Statute is that the patient may feel empathy for the negligent doctor and less likely to pursue a medical malpractice case under circumstances where it is their only practical option. More importantly, a patient may assume that a doctor’s apology has legal significance and that the doctor is accepting responsibility for the consequences of the error or undesired result. This may delay a patient’s pursuit of legal options which, in the case of medical negligence, can be limited to one year from the date of the malpractice. Of course, the patient has no legal recourse once the statute of limitations (1 year from date of malpractice) has expired. Further, an apology from a health care professional does not prevent that person from denying fault in court should a malpractice action be necessary. From the perspective of the patient, this can clearly be seen as a classic bait and switch.
This fear was realized for one patient in Ohio (and can be expected to occur to many others) following a recent Ohio Supreme opinion which extended the Apology Statute to apply to an admission of fault (not an apology) from a health care professional. In the case of Estate of Johnson v. Randall Smith, Inc. the physician stated to his patient following a medical error “I take full responsibility for this. Everything will be okay.” The Court held that this statement could not be used in the subsequent medical malpractice case brought against the physician when (in the eyes of the patient) everything was not “Ok.” This case serves as an example of how the Apology Statute can mislead patients and protect health care professionals. In this case, the doctor’s statement that he was taking “responsibility” would logically pacify the patient but the doctor later denied fault in court and the patient could not use his statement against him. The result is a one way street that is certain to lead to legal problems for many patients who have or will be the victim of medical mistakes.
The opinion from this case can be found at http://www.sconet.state.oh.us/rod/docs/pdf/0/2013/2013-Ohio-1507.pdf.