Court weighs 'I'm sorry' vs. 'I'm responsible'

In the recent opinion from the Ohio Court of Appeals concerning a malpractice case against Michael Knapic, DO, by plaintiff Leroy Davis, the court carefully considered the question of what the Ohio legislature meant to protect with its apology statute.

"Dr. Knapic has argued that drawing a distinction between an acknowledgment of fault and an expression of sympathy violates the intent of the statute because the word 'apology,' as commonly defined, includes an expression of fault, admission of error, or expression of regret for an offense or failure," the court wrote in its opinion. "Dr. Knapic has also argued that the statutory intent behind Section 2317.43 is to avoid the obvious detriment to the physician-patient relationship that can follow an adverse medical outcome, especially if the doctor refuses to show some compassion and speak to the patient or the family. According to Mr. Davis, however, a direct admission of fault and responsibility is not what is intended by the plain and unambiguous words of the statute."

The court noted that among the 36 states that have adopted similar laws, the majority explicitly distinguish between statements of sympathy and admissions of fault or liability. Under California's apology law, for example, only "[t]he portion of statements ... or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident ... shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault ... which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section."

Seventeen of the states that have explicitly distinguished between expressions of sympathy and admissions of fault have chosen to admit expressions of fault while excluding from evidence any part of a statement that expresses sympathy. On the other hand, eight of the states that have explicitly made the same distinction between expressions of sympathy and admissions of fault have chosen to exclude both types of statements from evidence.

"For instance, by adding the term 'fault' to the same litany of sentiments found in Ohio's statute, Colorado's statute makes it clear that both admissions of fault and expressions of sympathy are inadmissible. In Colorado, 'any and all statements ... expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence which are made by a health care provider ... to the alleged victim [or] a relative of the alleged victim . . . which relate to the discomfort, pain, suffering, injury, or death of the alleged victim as a result of the unanticipated outcome of medical care shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.'

Knapic's attorney argued that the word "apology" could reasonably include at least an implication of guilt or fault. But the court noted that an apology does not always imply taking responsibility, saying that "when hearing that someone's relative has died, it is common etiquette to say, 'I'm sorry,' but no one would take that as a confession of having caused the death."

"Thus, looking to the rules of grammar and common usage, the appearance of the term 'apology' in Section 2317.43(A) creates some ambiguity. Reading the term in context with the litany of other sentiments to be excluded under the statute, however, leads us to believe the General Assembly did not intend to include statements of fault within the statute's ambit of protection. The other five protected sentiments clearly do not convey any sense of fault or liability, indicating that the statute was intended to protect apologies devoid of any acknowledgment of fault."

The court concluded that "[t]he statute was intended to protect pure expressions of apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence, without excluding from trial a medical professional's admission of fault for a claimed injury."

The entire text of the appeals court opinion can be found online at http://tinyurl.com/3lqzbem.