On April 23, 2013, the Supreme Court of Ohio handed down a merit decision in Estate of Johnson v. Randall Smith, Inc., 2013-Ohio-1507. In a unanimous decision written by Justice Lanzinger, in which Justices O’Donnell and Pfeifer concurred in judgment only, the Court held that Ohio’s apology statute, R.C. 2317.43, applies to any cause of action filed after September 13, 2004, the date of its enactment.  That meant that the statute applied in this case, even though the contested statement was made and the case was originally filed before the effective date of the statute. The case was argued February 5, 2013. Read the oral argument preview in the case here and the analysis of the oral argument here.

Case Background
 On April 24, 2001, the defendant, Dr. Randall Smith operated on Jeanette Johnson’s gall bladder. (Mrs. Johnson has since died, and the administrators of her estate have been substituted in.) The procedure was originally to be done laproscopically, but because the common bile duct was injured, which is a known risk of the procedure, Dr. Smith converted the surgery to an open procedure. He explained what had happened to Mrs. Johnson at the time.

A month later Mrs. Johnson had to be re-admitted to the hospital because of complications from the bile-duct injury.  Her treatment necessitated transfer to a different hospital.  Before the transfer she became very emotional and upset. In an effort to console her, Dr. Smith took Johnson’s hand and said, “I take full responsibility in this.  Everything will be okay.” That is the statement that forms the crux of this appeal.

Keep Your Eye on These Dates

Dr. Smith made the statements at issue on May 21, 2001.

Mrs. Johnson and her husband sued Dr. Smith for malpractice August 19, 2002.

On September 13, 2004, the apology statute went into effect

On September 11, 2006, the plaintiffs voluntarily dismissed their case.

On July 26, 2007, the plaintiffs re-filed their case.

On June 18, 2010 the jury returned a verdict in favor of Dr. Smith

The Handling of Dr. Smith’s Statement by the Trial Court and the Appeals Court

Before the trial in this case began, Dr. Smith filed a motion in limine, seeking to prohibit the introduction of his statement to Mrs. Johnson, arguing that it was inadmissible under R.C. 2317.43.  The Johnsons argued the statement was not an apology, but an admission of responsibility, and therefore not covered by the statute. They also argued that the statute did not apply to the statement because the statute took effect three years after the malpractice claim arose and the statement was made.

The trial court ruled that the statement was covered by the statute and was inadmissible.  In a split decision, the Eleventh District Court of Appeals reversed. The majority found that the statute could not be applied retroactively because the legislature had not expressly so stated.  The dissenting judge thought the statute should apply because the statute was in effect when the re-filed civil action was brought.

Issue As Defined by the Court

The Supreme Court defined the issue as whether R.C. 2317.43 applies to any cause of action filed after Sept 13, 2004.

Short answer

Yes.

The Statutory Language

R.C. 2317.43 (A) begins, “in any civil action brought by an alleged victim of an unanticipated outcome of  medical care…” The Court found this language clear and unambiguous, and that meant the statute applied to any case filed after September 13, 2004.

The Effect of A Voluntary Dismissal and Re-Filing of this Case

The Court rejected the Johnson’s argument that the date that controls here was August 2002, when they brought the original action.  The Court held that when “an action has been voluntarily dismissed, Ohio law treats the previously filed action as if it had never been commenced. ” The high court rejected the court of appeals majority analysis which looked at the date Dr. Smith made the statement—clearly well before the effective starting date of the statute–finding that it failed to give effect to the plain language of the statute.  The re-filing date controlled here, and that was years after the effective date of the statute.

No Need to Bother with that Retroactive Application Stuff

Retroactivity analysis is always headache inducing, at least to me.  The Court held that the combination of the express language of the statute that it covered any civil action brought after September 14, 2004, and its decision that this case was filed  in 2007, not in 2002, made that whole exercise unnecessary.

Application of the Statute to Dr. Smith’s Statement

Having determined that the statute applied to the statement, the final step in the Court’s analysis was to determine whether the statement was properly excluded, and not surprisingly, found that it was. “This is precisely the type of evidence that R.C. 2317.43 was designed to exclude as evidence of liability in a medical-malpractice case,” wrote Justice Lanzinger

Standard of Review

The high court also called the court of appeals majority out for not analyzing this evidentiary ruling with an abuse of discretion analysis, as is required. Chief Justice O’Connor had pointedly asked about this at oral argument. And Justice Lanzinger had asked how the Court should deal with this problem if that were the case. Did the case need to go back to the Court of Appeals, she and several others had asked? But nope, ultimately, the Court held the failure of the appeals court to do an abuse-of-discretion analysis made it improper for the appeals court to reverse the trial court’s ruling on the statement. And the Court itself then concluded the statement was properly excluded by the trial court.

Remedy

The court of appeals was reversed and the judgment on the jury’s verdict was reinstated.

Case Syllabus

R.C. 2317.43, which precludes the admission of statements of apology by a healthcare provider, applies to any cause of action filed after September 13, 2004.

Concluding Observations

At argument, it clearly seemed like the justices all felt the statement was indeed one of apology, and exactly the kind of statement the statute intended to exclude. I suspected the Court would duck the retroactivity analysis by finding the statute was in effect when the case was re-filed, and that was the key date. The trickiest part of the case was what to do about the fact that the court of appeals majority failed to decide whether the trial court abused its discretion in excluding the statement. In a slightly less dramatic way than it had done in entering judgment for the defendant despite an erroneous jury instruction in the case of Am.Chem. Soc. v. Leadscope, the Court here just took an extra little activist hop (as urged by defense counsel. As I’ve often said, activism is always in the eye of the beholder), found the statement properly excluded, and sent it back to the trial court to reinstate the judgment on the jury’s verdict.