It’s something everyone should do. When you have bad news to share with a person, you should feel free to express your feelings of regret and sympathy for what he or she is going through. Unfortunately, in the past, many doctors were afraid to make such expressions of sympathy for fear that these expressions could be used against them in the event of a medical malpractice lawsuit.
However, Ohio law allows doctors to make this kind of statement without worrying that it will be used against them. Ohio Revised Code 2317.43, commonly called the “apology statute” protects doctors who make this type of statement. It says that “any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence” cannot be used in any way as evidence in a medical malpractice lawsuit.
Some doctors have argued that this statute should also cover any admission of fault made during the period after the so-called “unanticipated outcome.” They argue that drawing a distinction between expressions of sympathy and admissions of fault violates the intent of the statute because expressions of sympathy often include an expression of fault, admission of error, or expression of regret. Most states statutes explicitly detail whether or not admissions of fault are admissible. The majority state they are, but 8 of the 36 explicitly include admissions of fault as part of expressions of sympathy. In a June decision (Davis v. Wooster Orthopaedics & Sports Medicine, Inc.), however, the Court of Appeals of Ohio, Ninth District, has stated that the legislature did not intend for admissions of fault to be considered part of the expressions of sympathy statute.
Whether this will be held up in the event of an appeal to the Ohio Supreme Court remains to be seen.
If you have been hurt as a result of a doctor’s error, you may be eligible for compensation for your injuries or loss. To learn more about the law and whether your case would be a good one to pursue, please contact Robert W. Kerpsack, CO, LPA today to schedule a free case evaluation.