Doctor’s Apology Inadmissible in Malpractice Lawsuit

Jeanette Johnson suffered a bile duct injury while having her gall bladder removed in 2002. When she returned to the hospital a month later, Portage County surgeon Randall Smith reportedly held her hand and apologized for the complications she was suffering.

“I take full responsibility for this,” he allegedly stated. “Everything will be okay.”

Later that year, Johnson filed a medical malpractice lawsuit in which she admitted Smith’s statement as evidence of his negligence. When she dropped the lawsuit in 2006 and refiled it in 2007, she lost that right.

Why?

September 13, 2004, Ohio enacted the “medical apology statute,” which states that a doctor’s apology cannot be used against him in court.

“Physicians are and should be sympathetic and empathetic. Fear of future legal action shouldn’t impede that,” Dr. William Wulf, medical director of Central Ohio Primary Care, told the Columbus Dispatch.

Johnson filed an appeal, and the 11th District Court of Appeals ruled that Smith’s apology should have been admitted because he apologized before the law went into effect. In April, however, the Supreme Court reversed that ruling in a unanimous decision.

“Justices said lawmakers were ‘clear and unambiguous’ that the prohibition applied to all suits filed after the effective date of September 13, 2004, regardless of the date of the medical conduct in question,” the Associated Press reported.

Following the Supreme Court’s ruling, the Ohio State Medical Association issued a press release stating that it intends to pursue a bill that will clarify the statute.

Now that you know you may not submit a doctor’s apology as evidence, you may wonder what evidence you need in order to prove that your doctor was negligent. Below, Cleveland medical malpractice attorney Chris Mellino explains.

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