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Ohio Supreme Court Resolves Appellate Court Split: Statements of Fault Are Inadmissible Under the Ohio Apology Statute

December 2017 - DRI's Raising the Bar
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Despite a healthcare provider’s best efforts, a patient may experience an unexpected medical outcome, even death. It is an elemental human characteristic to want to offer some expression of sympathy or benevolence—even to apologize for the unanticipated turn of events. An apology may go a long way to diffuse a difficult situation, facilitate healing, preserve relationships, and even avoid later litigation. Yet a healthcare provider may be wary that any such statements would be used later as evidence of negligence or liability in a malpractice suit. To encourage conversations and transparency between healthcare providers, patients, and their families after unanticipated outcomes, Ohio and more than 30 other states, have adopted what are often referred to as "apology statutes." Ohio’s apology statute—R.C. 2317.43— provides that a healthcare provider’s "statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence" that relate to an unanticipated outcome during medical care are inadmissible as evidence when made to the patient, her family, or her representative.

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