Update: The Supreme Court handed down a merit decision in this case on April 23, 2013.  Read the analysis here.

On February 5, 2013, the Supreme Court heard oral argument in the case of Estate of Johnson v. Smith, 2012-0014. At issue in this case is whether Ohio’s health care provider apology statute, R.C. 2317.43, retroactively applies to statements and gestures made by a doctor in an attempt to console his patient.

Case Background

Jeanette Johnson suffered from gall bladder disease. In 2001, Dr. Randall Smith operated laparoscopically to treat Johnson’s gall bladder attack. In the course of surgery, Johnson’s common bile duct was injured, a known and recognized risk of the procedure. Dr. Smith subsequently converted the procedure into an open procedure to correct the injury. Dr. Smith advised Johnson of the injury.

About three weeks later, Johnson was readmitted to the hospital for complications resulting from the injury. Treatment required Johnson to be transferred to another hospital.

Johnson became very upset and emotional. In an effort to console her, Dr. Smith took Johnson’s hand and said, “I take full responsibility in this. Everything will be okay.” In the following year, Johnson had six endoscopic procedures to treat her common bile duct.

In August of 2002, Johnson brought a medical malpractice suit against Dr. Smith. In September of 2006, she voluntarily dismissed the action, and re-filed it in July of 2007.

The trial court determined that Dr. Smith’s statements were covered under R.C. 2317.43, and granted Smith’s motion in limine to exclude the statements. The jury found that Dr. Smith did not commit malpractice. Johnson appealed.

In a split decision, the Eleventh District Court of Appeals found that the trial court erred in applying the statute retroactively, and erred in excluding Dr. Smith’s sympathetic statements.  Read the oral argument preview of this case here.

At Oral Argument

Dr. Smith’s Argument

The interpretation of R.C. 2317.43 is a matter of first impression for the Court. The court of appeals reversed the jury verdict in the doctor’s favor under a tortured analysis of why the statute should not apply to the facts of this case. The statute does apply—it applies to any civil action pending at the time of its enactment. The case was brought after the effective date of the statute, so the appeals court’s retroactivity analysis was wholly unnecessary.  Even if the statute is applied retroactively, it is just procedural, not substantive. The statement, “I take full responsibility” (which the trial court did not allow in) must be understood in context—it was part of an encounter weeks after the incident occurred, to console the patient.  It could not even be admitted as a statement against interest. And it surely was not the same thing as admitting medical negligence—that is far too big a leap.

The decision of the court of appeals should be vacated and the jury verdict re-instated.

Johnson’s Estate’s Argument

In a moment of candor, Dr. Smith told Mrs. Johnson that he had accepted full responsibility for what had happened to her.  The jury should have been allowed to hear this statement. It is one thing to exclude gestures and expressions of sympathy, but quite another to exclude an admission of fault. Even if the statute did apply—which it doesn’t—that statement wouldn’t be covered under it. The statute only covers sympathetic gestures, not statements of responsibility. Johnson was deprived of the opportunity for cross examination about that statement. Further, the statute cannot be applied to a statement that was made before the effective date of the statute.

What Was on Their Minds

Exactly What is Before the Court?

Are we deciding whether the statute applies to this case because it was re-filed after the effective date of the statute, or are we deciding whether what the doctor said was covered under the statute, asked Justice Pfeifer? Was what the doctor said an admission against interest? Is it possible to make an admission against interest that wouldn’t be covered by the statute?

Aren’t there two issues here, asked Justice Lanzinger, referring to the retroactivity question and the substantive/procedural question.

Does the Statute Apply or Doesn’t it?

Justice O’Neill ( a registered nurse) asked if the entry level (a phrase he likes) question is whether the statute can be applied to a statement that was made before the statute was in effect? Wouldn’t a new set of rules affect a substantive right of both doctors and patients? Or does it not change the duties and responsibilities of any of the parties?

Hasn’t the Court determined that evidentiary rules are procedural rather than substantive, asked Justice Lanzinger in what could be one of those sleeper questions.

The statute applies to cases, not to conduct, the Chief noted. Cases and causes of action are two different concepts.

We deal with retroactivity all the time, commented Justice Pfeifer. That isn’t what is tricky here—it is the nuances that are.

Can we Take a Scalpel and Dissect the Statement from the Gestures?

Chief Justice O’Connor asked if some parts of the statement could be expressions of condolence and others admissions of fault?

Justice O’Donnell asked whether it was only the doctor’s choice of the words “I take responsibility” that made the statement admissible? (answer from plaintiff’s counsel: yes) Was holding the patient’s hand a condolence gesture (we concede that, replied plaintiff’s counsel)

Did plaintiff’s counsel equate “I take responsibility” to mean “I committed malpractice and I am acknowledging that?” asked Justice Pfeifer (yes, he did)

Is the Policy Behind the Statute Our Concern?

When Johnson’s counsel got very wound up in a jury-like speech about the attempt to hide the truth from the average ordinary citizen who would think the statute unfairly benefits a unique class of individuals, the Chief interrupted him and asked if he was arguing the policy behind the statute? Justice O’Neill immediately followed up asking if he thought the statute was a bad idea? Would Johnson’s counsel prefer the doctor to stand at bedside and say sorry, but the rules of procedure prohibit me from talking to you from now on?

Granting the Motion in Limine

Did the trial court abuse its discretion in granting this motion, asked Chief Justice O’Connor?  And did the appeals court specifically review that issue?

How should the Court deal with the fact that the appeals court majority never determined if the trial court abused its discretion in excluding the statement, asked Justice Lanzinger.

And later Justice O’Neill commented that even if the Court were to determine that the statute did not apply retroactively, what should the Court do about the failure of the appeals court to review the admissibility of a piece of evidence under an abuse of discretion standard? Justice Lanzinger asked if the case had to be sent back to the appeals court to make this determination.

Isn’t Context Everything?

Chief Justice O’Connor commented that her reading of the entire incident was that what the doctor said and did was in a very sympathetic context. The doctor never denied cutting the bile duct, and the patient knew ahead of time that was a known risk of the procedure—wasn’t all this before the jury, who heard it all and sorted it all out? Would the plaintiff’s case really have been bolstered by the additional statement of responsibility? Wasn’t the statement made at an entirely different time than the incident—weeks later, in fact? Wasn’t the patient being consoled about the need for another procedure in a different hospital?

So you can sort out one word from the conduct of the doctor, asked Justice O’Donnell?

How it Looks from the Bleachers

To Professor Bettman

The Court seemed less concerned with the retroactivity issue (which it could avoid if it determines that the statute applies to this case because it was in effect before the case was re-filed, accepting the appellate dissent on this point) than with handling the admissibility of the statement itself.  A majority, and especially Chief Justice O’Connor, seemed to be having a hard time swallowing Johnson’s position that what the doctor said was an admission of fault for malpractice, and it was error for the jury not to hear it. A majority may well see the gestures and statement combined as an expression of sympathy, when taken in context, and all  properly excluded. Complicating the issue was the failure of the appeals court majority to decide whether there was an abuse of discretion in excluding the statement.  The Court could sidestep that (this case has been going on for eleven years) and accept Dr. Smith’s position that there is no need to send the case back to the appeals court to find that the statue does apply, and simply re-instate the jury verdict in Dr. Smith’s favor.

To Student Contributor Katlin Rust

It appears the Court will hold that the statute does apply in this case.  Justice Lanzinger, attacking the issue head on, asked Smith if the Supreme Court has made any determinations that evidence rules are procedural, and not substantive.  Answer, yes.  It looks like the Court is unwilling to accept Johnson’s argument that this statute affects a substantive right, and, therefore, cannot be applied retroactively.  Unfortunately, the Eleventh District did not make any determine beyond the applicability of the statute retroactively.  It looks like this one will be sent back down to determine whether the trial court abused its discretion is excluding Dr. Smith’s statement under the statute.

Given the Courts’ numerous questions about the actual statement itself and whether it can be considered a statement against interest or an apology, I think the Court will provide some direction for the Eleventh Circuit in determining abuse of discretion.  It seems that a majority of the Justices did not see the statement by Dr. Smith as outside the purview of the apology statute and would have his statement protected.