Law School Case Brief
Davis v. Wooster Orthopaedics & Sportsmedicine - 2011-Ohio-3199, 193 Ohio App. 3d 581, 952 N.E.2d 1216
Based upon the plain language of R.C. 2317.43, the intent was to protect pure expressions of apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence, but not admissions of fault. This interpretation comports with the explanation of Ohio's General Assembly as well as the policy espoused by the majority of states that have adopted apology statutes with an explicit distinction between sympathy and fault. A rule protecting a physician's expression of sympathy, but not his admission of fault from use at trial accomplishes the goal of helping to diminish the obvious detriment to the physician-patient relationship following a negative outcome of medical treatment. Under Ohio's statute, a physician may speak with a patient and/or a patient's family members and express his heartfelt sympathy for their pain following a negative outcome without risk of that expression of sympathy being used against him in court.
Barbara Davis was 49 years old when she died following back surgery on July 23, 2004. Her husband, Leroy Davis, filed a wrongful death action against her orthopaedic surgeon, Michael S. Knapic, and his practice group, Wooster Orthopaedics & Sports Medicine Inc. Mr. Davis alleged that Dr. Knapic negligently performed a lumbar microdiscectomy by completely severing Mrs. Davis's left common iliac artery and lacerating her iliac vein during the procedure and failing to timely diagnose and treat the medical condition that arose thereafter. At trial, the jury found against Dr. Knapic and awarded a $3 million verdict. Dr. Knapic and his practice group have appealed, arguing that the trial court erred in admitting the testimony of Leroy Davis, which stated that the surgeon took full responsibility for the death of the patient.
Did the trial court err in admitting the testimony of Leroy Davis stating that the surgeon had taken full responsibility for the death of the patient?
The Court noted that under R.C. 2317.43(A), 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 or an employee of 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. Here, the Court held that the trial court did not err by admitting the testimony of the patient's husband and daughter that the surgeon had told them that he had nicked an artery and took full responsibility for it under R.C. 2317.43 because the testimony did not include any expression of apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence.
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