that an apology by a medical provider that includes an admission of liability cannot be admitted as evidence in a civil lawsuit against the provider.
In a 5-2 decision, Justice Sharon Kennedy penned the majority opinion for the case, writing, “a statement expressing apology means a statement expressing a feeling of regret for an unanticipated outcome of the patient’s medical care, and may include an acknowledgment that the patient’s care was substandard.”
Stephanie A. Sheps, JD, the director of claims for Coverys, a medical liability insurance agency based in Boston, Massachusetts, says court rulings such as Ohio’s serve to underscore the value of communication after an adverse event by protecting physicians from admissibility at trial.
“This ruling should give healthcare providers comfort and reassurance that doing the right thing—helping patients and families understand the adverse event, supporting them through its aftermath and even expressing sympathy—can be done without fear of it being used against them as evidence of negligence,” she says.
Understanding the Decision
Callan G. Stein, JD, a litigation partner in Boston-based firm Donoghue, Barrett and Signal, says the court determined that the Ohio Apology Statute was unambiguous and, thus, applied the ordinary definition of the word “apology” to reach its conclusion.
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Dennis J. Alessi, a member and co-chair of the healthcare law and employment law practices of Mandelbaum Salsburg’s Healthcare Group, Roseland, New Jersey, says the core of the decision is that it prohibits testimony at trial of not only a physician’s expressions of empathy with the patient for an unanticipated, adverse outcome, but also any acknowledgment that the physician’s care fell below generally accepted standards.