More Special Protection For Ohio Physicians

Ohio law extends a number of legal protections to physicians which the rest of us do not get. Lower “caps” on financial responsibility to injured patients. A shorter statute of limitations and a statute of “repose” which combine to prevent many injured patients from having access to the court system. Enhanced and costly pleading requirements for patients who do file claims. And on September 12, 2017, the Ohio Supreme Court gave another special protection to doctors. In the case of Stewart v. Vivian, the Court held that a doctor’s admission that he made a medical error is inadmissible in a case about that very error.

Ohio has long had a so-called “apology statute” (O.R.C. 2317.43) which prevented patients from using their doctor’s apology or expression of sympathy against the physician. That law made some sense, and was mostly a non-issue. No reasonable lawyer would try to imply that an act of human kindness on the part of a doctor was somehow an admission of fault. But until September 12, 2017, lawyers believed that factual statements and admissions of substandard care would surely be admissible evidence in a case about that very medical care. In Stewart the Ohio Supreme Court said otherwise, ruling that a doctor can admit a mistake to his patient or her family, then later deny that mistake without fear that his prior admission will be considered by the jury. In fact, the Stewart case goes much farther. In Stewart the doctor neither apologized, nor did he admit fault. Rather, he told the grieving family that the patient (who had died and could no longer speak for herself) had reported key facts about her condition to him. The fact that the patient had made certain statements to the doctor was critical to her family’s case. Without evidence of those statements, the family’s case would lack necessary proof. The Court held that the physician’s admission as to what his now-dead patient had told him was inadmissible in court under Ohio’s “apology statute.” The family’s case was lost.

Prior statements made by parties to a lawsuit are routinely used in the litigation. What you or your family say to your doctors and nurses will almost always be admissible in court, even if those statements hurt your case. But what the doctor said to you may now be totally off-limits.

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