Davis v. Wooster Orthopaedics & Sports Med. Inc.

• Decision Date: 29 June 2011
• Docket Number: No. 25337.,25337.
• Citation: 2011 -Ohio- 3199,952 N.E.2d 1216,193 Ohio App.3d 581
• Court: Ohio Court of Appeals
• Parties: DAVIS, Admr., Appellee,v.WOOSTER ORTHOPAEDICS & SPORTS MEDICINE, INC., et al., Appellants.

193 Ohio App.3d 581

952 N.E.2d 1216

2011 -Ohio- 3199

DAVIS, Admr., Appellee,

v.WOOSTER ORTHOPAEDICS & SPORTS MEDICINE, INC., et al., Appellants.

No. 25337.

Court of Appeals of Ohio, Ninth District, Summit County.

Decided June 29, 2011.

Steven P. Okey, Attorney at Law, Canton, for appellee.Irene C. Keyse–Walker and Michael J. Ruttinger, Cleveland, Attorney at Law, for appellants.DICKINSON, Judge.

[Ohio App.3d 583] INTRODUCTION

{¶ 1} Barbara Davis was 49 years old when she died following back surgery on July 23, 2004. Her husband, Leroy Davis, filed a wrongful-death action against her orthopaedic surgeon, Michael S. Knapic, M.D. and his practice group, Wooster Orthopaedics & Sports Medicine, Inc. Mr. Davis alleged that Dr. Knapic had negligently performed a lumbar microdiscectomy by completely severing Mrs. Davis's left common iliac artery and lacerating her iliac vein during the procedure and failing to timely diagnose and treat the medical condition that arose thereafter. At trial, the jury found against Knapic and awarded $3 million in damages. Knapic and his practice group have appealed. This court affirms the judgment because (1) the trial court did not admit any evidence of sympathy or apology in violation of R.C. 2317.43, (2) the trial court exercised proper discretion in weighing the probative value of the autopsy photograph and related medical testimony against the danger of unfair prejudice under Evid.R. 403(A), and (3) the jury instruction regarding insurance was not improper.

THE APOLOGY STATUTE

{¶ 2} Knapic and his practice group's first assignment of error is that the trial court incorrectly admitted apology evidence in violation of R.C. 2317.43. Mr. Davis argues that the trial court did not admit any apology evidence at trial and that R.C. 2317.43 does not prohibit the use of statements of fault, responsibility, or liability as compared to statements of sympathy or condolence. At trial, Mrs. Davis's husband and daughter testified that after the surgery, Knapic told them that he had nicked an artery and that he took full responsibility for it. The jury did not hear any testimony that Knapic had told them he was sorry.

{¶ 3} Interpretation of a statute is a question of law that this court reviews de novo. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, at ¶ 8. “The primary goal of statutory construction is to ascertain and give effect to the legislature's intent in enacting the statute.” State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, at ¶ 9. To determine legislative intent, a court will first look to the plain language of the statute itself. Id., citing State ex rel. Burrows v. Indus. Comm. (1997), 78 Ohio St.3d 78, 81, 676 N.E.2d 519. “Words and phrases [must] be read in context and construed according to the rules of grammar and common usage.” R.C. 1.42.

{¶ 4} Under R.C. 2317.43(A), “[i]n any civil action brought by an alleged victim of an unanticipated outcome of medical care * * *, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, [Ohio App.3d 584] condolence, compassion, or a general sense of benevolence that are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim, and that relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.” The parties agree that the statute prohibits the admission of a health-care professional's statement of sympathy in a medical-malpractice case, but disagree regarding whether it also prohibits statements admitting liability or fault. This is an issue of first impression in Ohio.

{¶ 5} Knapic argues 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. Knapic also argues that the statutory intent behind R.C. 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. See R.C. 2317.43(A).

{¶ 6} 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.” Cal.Evid.Code 1160(a) (West 2011). 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. See, e.g., La.Rev.Stat.Ann. 13:3715.5 (2010) (“Any communication * * * expressing * * * apology, regret, grief, sympathy, commiseration, condolence, compassion, or a general sense of benevolence * * * shall not be admissible[.]* * * A statement of fault, however, which is part of, or in addition to, any such communication shall not be made inadmissible pursuant to this Section”); see also Cal.Evid.Code 1160(a) (West 2011); Del.Code Ann. Title 10, Section 4318 (2011); Fla.Stat.Ann. 90.4026 (West 2011); Haw.Rev.Stat. Ann. 626–1, Rule 409.5 (West 2011); Idaho Code Ann. 9–207 (2011); Ind.Code Ann. 34–43.5–1–4 and 34–43.5–1–5 (West 2011); [Ohio App.3d 585] Me.Rev.Stat.Ann. Title 24, Section 2907 (2011); Md.Code Ann., Cts. & Jud. Proc. Section 10–920 (West 2011); Mass.Gen. Laws Ann. Ch. 233, 23D (West 2011); Mich.Comp.Laws Ann. 600.2155 (West 2011); Mo.Ann.Stat. 538.229 (West 2011); Neb.Rev.Stat. Ann. 27–1201 (West 2010); N.H.Rev.Stat.Ann. 507–E:4 (2011); Tenn.R.Evid. 409.1 (2010); Tex.Civ.Prac. & Rem.Code Ann. 18.061 (Vernon 2011); Va.Code Ann. 8.01–52.1. The Hawaii legislature explained its intent by commenting that its rule excluding expressions of sympathy while permitting the use of expressions of fault “favors expressions of sympathy as embodying desirable social interactions and contributing to civil settlements.” Haw.Rev.Stat.Ann. 626–1 (West 2011), Commentary to Rule 409.5.

{¶ 7} 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. Ariz.Rev.Stat.Ann. 12–2605 (2011); Colo.Rev.Stat.Ann. 13–25–135 (West 2011); Conn.Gen.Stat.Ann. 52–184d (West 2011); Ga.Code Ann. 24–3–37.1 (West 2010); S.C.Code Ann. 19–1–190 (2010); Utah Code Ann. 78B–3–422 (West 2010) (excluding from evidence the sequence and significance of events relating to the unanticipated outcome of medical care); Vt.Stat.Ann. Title. 12, 1912 (2011); Wash.Rev.Code Ann. 5.64.010 (2011). 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 the 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.” Colo.Rev.Stat. 13–25–135.

{¶ 8} Some states, like Ohio, have apology statutes that do not make a clear distinction between an alleged tortfeasor's statement of sympathy and one acknowledging fault. Five states have statutes with language nearly identical to R.C. 2317.43. These statutes have all been adopted within the past eight years and apparently have not been frequently litigated. This court has been unable to find a single judicial decision from any of those five states or from an Ohio court interpreting the relevant statutory language. See Mont.Code Ann. 26–1–814 (2009); N.D.Cent.Code 31–04–12 (2009); R.C. 2317.43 (West 2011); Okla.Stat.Ann. Title 63, 1–1708.1H (West 2011); W.Va.Code Ann. 55–7–11a (West 2011); Wyo.Stat.Ann. 1–1–130 (2010).

{¶ 9} Under R.C. 2317.43(A), “all statements * * * expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence [Ohio App.3d 586] * * * are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.” The parties appear to agree that statements of “sympathy, commiseration, condolence, compassion, or a general sense of benevolence” do not include an acknowledgment of fault. The question is whether the word “apology,” as used in the statute, was intended to include an acknowledgment of fault in addition to an expression of sympathy, condolence, or compassion.

{¶ 10} As Knapic has pointed out, the word “apology” could reasonably include at least an implication of guilt or fault. On the other hand, “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...