Sorry. Not Sorry.
“Sorry. It’s my fault. Totally. My mistake, I wasn’t paying attention” confessed the middle-aged man after he ran a red light and hit my car. I was relieved that he accepted responsibility because the damage was in the thousands of dollars. But then he got a lawyer paid for by his insurance company, and he changed his story. His new story was that it was all my fault. I wasn’t too worried because I knew what he said at the scene of the collision, and I was prepared to testify to it in court.
Boy, was I wrong. I came to learn that his confession of fault, his admission that he wasn’t paying attention, would be inadmissible in court. That’s right, even if I had a busload of witnesses to that confession, we couldn’t tell a jury about it! He could just change his story, and no one on the jury would find out.
Whaaaatttt? That doesn’t even pass the smell test for fairness.
Well, the good news is that I made up that story. And, in fact, if you get into an accident and someone admits fault, you can tell the jury.
The bad news is that if your doctor screws up and confesses, he or she can in fact hide that confession from a jury. That is precisely the implication of a recent Ohio Supreme Court decision. As long as the confession or admission was part of an attempt to apologize, the doctor can deny it all later – the apology, the admission of fault, the confession he wasn’t paying attention – all of it.
According to the decision, Stewart v. Vivian (2017-OHIO-7526), as long as the doctor says something remorseful (or even a gesture showing remorse) during the conversation, then the rest of what the doctor says (things like “My mistake. I was negligent. I should never have given your daughter that drug I knew she was allergic to”) is inadmissible.
Ohio has an “apology statute” (O.R.C. 2317.43) which prevents patients from using their doctor’s apology or sincere expression of sympathy against their doctor. This law made some sense and was really a non-issue, until now. Prior to this new ruling, if a doctor said he was “sorry about what happened,” the victim or the victim’s family couldn’t use that statement to argue that the doctor admitted a mistake. This isn’t really a big deal. People can and do apologize for things that aren’t necessarily their fault. When someone dies, it is rather natural to say “sorry for your loss.” That doesn’t mean you caused the death. And Ohio’s apology statute made sure that in such circumstances a sincere apology wasn’t used against a doctor in court.
But this is something altogether different. Now, a doctor can make factual statements of his conduct, and he can tell a patient he was negligent, and yet it won’t be admissible, so long as he throws in there an “I’m sorry,” or an equivalent gesture (a downward look, perhaps, who knows?).
Rest assured, if you tell the doctor you made a mistake, that will come into evidence. Your doctor can use your statements against you in court, but it is not a two-way street.
This new ruling is just piling it on against victims of medical mistakes. Ohio laws already extend protections to physicians which the rest of us do not get. For example:
Low caps on damages to severely injured patients, even those who have been raped or sexually assaulted by their doctor
A shorter time limit for filing suit. You get one year to file your medical malpractice suit if a doctor operates on the wrong body part but four years if your neighbor walks on your property without permission. Seriously?!
With its latest anti-victim ruling, the Ohio Supreme Court has just made it even harder to succeed in a medical negligence case. That means who you pick as your lawyer is more important than ever. Having an attorney who understands all these rulings as well as the medicine behind your case is invaluable. At The Eisen Law Firm, we handle only medical negligence cases, and we have the experience, medical and legal knowledge, and track record of success necessary to take on difficult medical negligence and wrongful death cases. Please give us a call (216- 687-0900) or contact us at www.malpracticeohio.com if you or a loved one has been injured by a medical professional.