Court News Ohio
Court News Ohio
Court News Ohio

Supreme Court To Decide If Applying 2004 “Apology Statute” to Statements Made By Doctor in 2001 is Unconstitutional Retroactive Application of Law

Among Nine Cases to be Heard by the Court on February 5-6

Image of the exterior of the Thomas J. Moyer Ohio Judicial Center taken from the Scioto River.


Image of the exterior of the Thomas J. Moyer Ohio Judicial Center taken from the Scioto River.

The Supreme Court of Ohio hears oral arguments in nine cases February 5 and 6.

The Supreme Court of Ohio will hear oral arguments in nine cases on February 5 and 6,  including a medical malpractice suit in which the court is asked to decide whether it was constitutional to apply an immunity statute enacted by the legislature in 2004 to bar trial testimony about statements made by a physician in 2001 in which he told a patient that he “took full responsibility” for injuries she suffered while undergoing gall bladder surgery.

The court’s Office of Public Information today released previews summarizing each of the cases that will be argued during the upcoming session.

Johnson v. Smith, the first of five cases to be argued on Tuesday, February 5, involves a lawsuit filed by patient Jeanette Johnson against Dr. Randall Smith in 2002 in which Johnson alleged that injuries she suffered during a 2001 gall bladder surgery performed by Smith were caused by the doctor’s negligence.

After being readmitted to the hospital a few days after the original operation, and subsequently learning that she would have to undergo additional surgery at a different hospital to address her post-surgical complications, Johnson became emotional and Smith took her hand and stated before witnesses “I take full responsibility for this.  Everything will be OK.” Johnson subsequently underwent five additional procedures to remedy the injury she suffered during the 2001 surgery.

In 2004, while Johnson’s suit was pending, the General Assembly enacted R.C. 2317.43, an “apology statute” that barred the admission of testimony in future medical malpractice lawsuits about statements made to a patient by a medical professional expressing “apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence” where such a statement was offered by the plaintiff as evidence of an admission of liability.

After a long delay in the proceedings in her case, during which Johnson dismissed her original complaint in 2006 and filed a new one in 2007, the case was scheduled for a jury trial in 2010.  During pretrial proceedings, Smith’s attorneys asked the court  to bar under the apology statute any testimony recounting the doctor’s statement to Smith “taking full responsibility” for her post-surgical condition.  The trial judge granted the motion to exclude testimony about the doctor’s statement. After a two-day trial during which no evidence regarding Smith’s statement was considered, the jury found that Smith was not liable for Johnson’s injuries.

Johnson appealed, arguing that the exclusion of Smith’s 2001 statement from evidence pursuant to the 2004 apology statute was an unconstitutional retroactive application of the law that had deprived her of a fair trial.  The Eleventh District Court of Appeals held that because the legislature did not include language in the apology statute clearly indicating intent that the law apply retroactively, the trial court erred by applying it retroactively to bar testimony about Smith’s 2001 statement.  On that basis, the court of appeals entered a judgment vacating the jury verdict and remanding the case for a new trial. 

Smith sought and was granted Supreme Court review of the court of appeals’ decision.

Attorneys for Smith now argue that applying the apology statute to bar testimony about Smith’s statement during Johnson’s 2010 trial was not a retroactive application of the law, because the apology statute bars such testimony “in any civil action brought” after the law’s September 2004 effective date. They assert that because Johnson’s malpractice complaint was refiled in 2007, applying the apology statute to bar testimony about Smith’s statement in her case was a prospective application of the law to a lawsuit that was not “brought” until nearly three years after the new law took effect.

Attorneys for Johnson respond that her injuries and the events that caused them, and therefore her vested right to recover damages from Smith for those injuries, was established in 2001. Because the statement made by Smith admitting “responsibility” for her post-surgical complications was made three years before the enactment of the apology statute, they assert, the court of appeals correctly held that applying that law to prevent her from presenting evidence of Smith’s 2001 admission of liability to a jury was an impermissible retroactive application of the statute. They also contend that, even if the application of the apology statute to her refiled complaint is held to be prospective, the trial court still erred in excluding Smith’s statement because his acceptance of “responsibility” was neither an apology nor a statement of “sympathy” or “condolence.”

Other cases to be argued on February 5 include:

  • In re M.M., the court is asked to decide whether a state law that allows a prosecutor to pursue a discretionary post-verdict appeal of an evidentiary ruling in a criminal case so long as he does not challenge the final verdict applies when the state failed to object to the trial court’s evidentiary ruling at the time it was made, or at any other time prior to the entry of a final judgment of acquittal in the underlying case.
  • In State v. Forrest, the Franklin County Prosecutor is challenging the process used by the Tenth District Court of Appeals to determine whether an en banc session involving all eight members of that court should be convened to resolve a claimed conflict between a current  ruling on a legal issue by one three-judge panel of the court and prior rulings on the same point of law by different three-judge panels.
  • Leopold v. Ace Doran Hauling and Rigging Co. questions whether a woman who disclosed otherwise confidential medical records in connection with a personal injury lawsuit she brought against another driver in a multi-car accident, but later dismissed that suit, has waived the confidentiality of those records in connection with a different lawsuit, brought by another party, that arose from the same accident.
  • In Disciplinary Counsel v. Detweiler an Akron attorney who has admitted attempting to solicit sexual activity with a client he was representing in a divorce action asks the court to impose a fully-stayed license suspension as the penalty for his misconduct, rather than imposing  the sanction recommended by the Board of Commissioners on Grievances & Discipline, which is a 12-month suspension with only the last six months stayed.

The court will also hear arguments in four cases on Wednesday, February 6:

  • In Stammco LLC v. United Telephone Co., the court is asked to decide whether a trial court abused its discretion when it vacated its own prior decision approving the certification of a class-action lawsuit based on the judge’s evaluation of the merits of the plaintiff’s damage claims, rather than on a determination that the proposed class definition did not comply with the requirements for class certification set forth in Ohio Civil Rule 23.
  • State v. Lindstrom addresses a case in which a 20-year-old man was charged for the first time  in 2010 with sexual offenses he was alleged to have committed between 1999 and 2003, when he was between nine and 14 years of age and the alleged victim was between the ages of five and nine.  The court is asked to rule on whether the defendant should face prosecution on those charges in juvenile or adult court, based on whether he was legally “apprehended” by virtue the state’s filing of a delinquency complaint in  juvenile court and the juvenile court’s service of a summons on him based on that complaint prior to his 21st birthday.
  • In Dunbar v. State,  the court is asked whether a provision of state law that prohibits an award of damages for wrongful imprisonment to a defendant who entered a guilty plea to the charge for which he was imprisoned applies to a case in which a defendant’s original plea of guilty and conviction were vacated on appeal, and his subsequent conviction and prison sentence after a new trial, in which he pleaded not guilty, were also later vacated on appeal.
  • State v. Athon asks the court to determine whether a criminal defendant’s filing of a public records request to obtain police records and other discoverable information related to his prosecution, in lieu of filing a discovery demand, triggers the state’s right to demand reciprocal discovery of the defendant’s witnesses and physical evidence under Ohio Criminal Rule 16.