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Court News Ohio
Court News Ohio
Court News Ohio

Thursday, April 6, 2017

Nichole Johnson v. Mary E. Montgomery et al., Case no. 2016-0790
Second District Court of Appeals (Montgomery County)

State of Ohio v. Jamie Banks-Harvey, Case no. 2016-0930
Twelfth District Court of Appeals (Warren County)

Dennis Stewart, Administrator of the Estate of Michelle Stewart v. Rodney E. Vivian, Case no. 2016-1013
Twelfth District Court of Appeals (Clermont County)


Is Strip Club Partly Responsible for Injuries Caused by Intoxicated Worker?

Nichole Johnson v. Mary E. Montgomery et al., Case no. 2016-0790
Second District Court of Appeals (Montgomery County)

ISSUE: Does the Dram Shop Act limit the liability of a liquor permit holder when the intoxicated person who causes harm works for the permit holder and consumes alcohol as part of the job responsibilities?

BACKGROUND:
Mary Montgomery worked as a dancer at a Dayton strip club called The Living Room, operated and owned by Michael Ferraro and Thirty-Eight Thirty, the liquor permit holder. Strippers paid the club $30 a night to lease space to dance, and the tips they received from customers were their only wages. Thirty-Eight Thirty issued no paychecks or W-2s and paid no benefits to the dancers.

Customers were encouraged to buy drinks for the strippers, and the club charged a higher price for those drinks than the ones customers bought for themselves. According to the briefs filed in the case, Ferraro testified that the contracts dancers signed didn’t require them to drink while working, but most did, consuming 30 to 40 percent of the alcohol sold at the club.

Montgomery worked at the club on the night of July 3, 2010. Sometime after 2 a.m. on July 4, she was driving home on Interstate 70 and hit a vehicle. Nichole Johnson was a passenger in the front seat of that car. Johnson was severely injured, suffering a brain injury and multiple head fractures, broken teeth and ribs, several other broken bones, a collapsed lung, and a lacerated liver. She had 11 surgeries to treat her injuries, and underwent extensive physical and occupational therapy for nearly a year. Montgomery pled no contest to operating a vehicle under the influence of alcohol and/or drugs and to vehicular assault, and the trial court found her guilty of the charges.

Injured Woman Sues Stripper and Club
Johnson filed a civil lawsuit against Montgomery, Ferraro, and the club, alleging negligence and a violation of Ohio’s Dram Shop Act. The act restricts the liability that liquor permit holders have when intoxicated persons cause harm. (A “dram” is a small amount of liquid, and a “dram shop” refers to a bar, tavern, or place that sells alcohol.)

R.C. 4399.18: Ohio Dram Shop Act

Notwithstanding division (A) of section 2307.60 of the Revised Code and except as otherwise provided in this section, no person, and no executor or administrator of the person, who suffers personal injury, death, or property damage as a result of the actions of an intoxicated person has a cause of action against any liquor permit holder or an employee of a liquor permit holder who sold beer or intoxicating liquor to the intoxicated person unless the personal injury, death, or property damage occurred on the permit holder’s premises or in a parking lot under the control of the permit holder and was proximately caused by the negligence of the permit holder or an employee of the permit holder. A person has a cause of action against a permit holder or an employee of a permit holder for personal injury, death, or property damage caused by the negligent actions of an intoxicated person occurring off the premises or away from a parking lot under the permit holder’s control only when both of the following can be shown by a preponderance of the evidence:

(A) The permit holder or an employee of the permit holder knowingly sold an intoxicating beverage to at least one of the following:

(1) A noticeably intoxicated person in violation of division (B) of section 4301.22 of the Revised Code;

(2) A person in violation of section 4301.69 of the Revised Code.

(B) The person’s intoxication proximately caused the personal injury, death, or property damage.

R.C. 4399.18: Ohio Dram Shop Act

Notwithstanding division (A) of section 2307.60 of the Revised Code and except as otherwise provided in this section, no person, and no executor or administrator of the person, who suffers personal injury, death, or property damage as a result of the actions of an intoxicated person has a cause of action against any liquor permit holder or an employee of a liquor permit holder who sold beer or intoxicating liquor to the intoxicated person unless the personal injury, death, or property damage occurred on the permit holder’s premises or in a parking lot under the control of the permit holder and was proximately caused by the negligence of the permit holder or an employee of the permit holder. A person has a cause of action against a permit holder or an employee of a permit holder for personal injury, death, or property damage caused by the negligent actions of an intoxicated person occurring off the premises or away from a parking lot under the permit holder’s control only when both of the following can be shown by a preponderance of the evidence:

(A) The permit holder or an employee of the permit holder knowingly sold an intoxicating beverage to at least one of the following:

(1) A noticeably intoxicated person in violation of division (B) of section 4301.22 of the Revised Code;

(2) A person in violation of section 4301.69 of the Revised Code.

(B) The person’s intoxication proximately caused the personal injury, death, or property damage.

A magistrate determined that Ferraro couldn’t be sued. The magistrate also decided that the Dram Shop Act claims wouldn’t be presented to the jury because Johnson couldn’t show that the club served Montgomery knowing that she was already intoxicated, which the court stated was required by the act.

However, the jury considered Johnson’s other claim that the club and Montgomery were negligent, or failed to act as carefully as a reasonable person would in the same circumstances. The jury awarded Johnson $2.85 million in damages for past and future medical expenses, past and future pain and suffering, and earlier lost wages, and determined that Montgomery and the club were equally responsible and would split the penalty evenly. When upholding the magistrate’s ruling and the jury’s decision, the trial court added that the Dram Shop Act didn’t apply in the case because Montgomery was not a patron at the club, but instead was working as a dancer.

Club Appeals $2.85 Million Jury Award
The club appealed the case to the Second District Court of Appeals, arguing that Johnson couldn’t legally claim the club was negligent because the circumstances listed in the Dram Shop Act are the only situations when a liquor permit holder can be sued for the harm caused by an intoxicated person. The Second District agreed, and overturned the jury verdict.

Johnson appealed to the Ohio Supreme Court, which agreed to review the case. The Court will consider the case at a special off-site session in Morgan County.

Dram Shop Act Doesn’t Apply to Intoxicated Workers, Injured Woman Asserts
Johnson argues that the Dram Shop Act isn’t relevant to this case and doesn’t apply because she wasn’t injured by an intoxicated patron of the club, but instead was injured by an intoxicated worker, who was encouraged to drink as part of the club’s business plan.

She contends that the act applies when the liquor permit holder “sold beer or intoxicating liquor to the intoxicated person” who causes an injury. The history of the law makes it clear, Johnson maintains, that it was designed to protect bar, club, restaurant, or other permit holders from being held responsible for the conduct of a patron who purchases alcohol from the permit holder and becomes intoxicated. Johnson states that a 1999 Ohio Supreme Court opinion and decisions from four state appellate courts – all involving the Dram Shop Act – have explained that the act applies to the negligent conduct of intoxicated patrons.

Patrons visit a bar, club, restaurant, or other liquor establishment by their own choice and not because of a contractual relationship they have with the permit holder, Johnson points out. Permit holders, on the other hand, have knowledge of and exert a certain amount of control over their workers. At The Living Room, the operator knew that dancers drank as part of a business plan to increase the club’s profits, Johnson asserts, noting that waitresses actively encouraged patrons to buy drinks for the club’s dancers. The employer played a significant role in creating the risk of harm that occurred, Johnson argues.

Johnson also contends that the club has cited no Ohio court cases in which the Dram Shop Act was applied to a situation involving an intoxicated worker. Johnson, though, found an Eighth District Court of Appeals decision in a workers’ compensation case where a strip club worker was injured in an accident after driving home intoxicated. The court stated that club owners shouldn’t be able to encourage a worker to drink with patrons for the club’s profit and then “turn a blind eye” when the worker leaves the job intoxicated and drives home, endangering lives.

Because Montgomery was a stripper instead of a patron, Johnson argues the lawsuit falls outside the scope of the Dram Shop Act and allows Johnson to sue the club for other reasons permitted by law. In addition, deterring club owners from encouraging workers to drink and letting them drive home is sound public policy, she concludes, asking that the Supreme Court order the Second District to reinstate the jury verdict.

Dram Shop Act Only Way to Sue Liquor Permit Holder, Strip Club Maintains
Thirty-Eight Thirty responds that the Dram Shop Act is the “exclusive remedy” against a liquor permit holder for injuries caused by an intoxicated person’s negligent conduct that takes place away from the permit holder’s premises. For an off-premises injury, the club contends that the statute allows a lawsuit in only two situations – when the permit holder serves a noticeably intoxicated person or when it serves a minor. The permit holder has no legal responsibility in any other situation involving harm caused by an intoxicated person, the club asserts.

The language of the statute is clear, according to the club, which cites multiple appeals court cases ruling that the Dram Shop Act is the only way to sue a liquor permit holder for damages when an intoxicated person causes injury. The club argues that the law imposes a uniform duty on liquor permit holders when serving alcohol, regardless of the relationship between the permit holder and the intoxicated person. Despite Johnson’s mentions of court decisions that describe the law as applying to patrons, the club notes that the act makes no reference to “intoxicated patrons,” only to “intoxicated persons.” The Dram Shop Act applies “regardless of whether that person is a customer seated at the bar, is an employee, or has some other relationship with the permit holder,” the club wrote in its brief to the Court.

As far as the club’s policy of prompting patrons to buy drinks for the dancers, the club states that all bars encourage alcohol consumption, through staff, advertisements, and specials, for example. Noting that Montgomery said she had two to three beers on the night of the accident, the club contends that the law makes the club potentially liable only if it knowingly sold an intoxicating beverage to a noticeably intoxicated person. No evidence at trial supported the idea that Montgomery was served that night while noticeably intoxicated, the club indicates. Instead, her consumption of alcohol was voluntary, and she testified she sometimes chose not to drink at work, the club asserts.

The club sees no basis in the Dram Shop Act for drawing a distinction between a patron and a worker. The two relevant situations in the act where liquor permit holders can be held responsible may apply regardless of whether the intoxicated person is a patron or a worker, the club argues. It also maintains that the Eighth District decision in the workers’ compensation case doesn’t make any reference to the Dram Shop Act and asked only whether the employee could receive benefits for her injuries, not whether a third party can receive compensation for injuries in an accident because a liquor permit holder breached a duty and was negligent.

Because it believes the act’s language is clear, the club argues the Court is barred from looking at public policy or the legislative intent or history when enacting the law, and asks the Court to uphold the Second District’s decision.

Amicus Briefs Support Injured Woman’s Claims
Mothers Against Drunk Driving (MADD), the Ohio Association for Justice, and the Ohio Attorney General’s Office each submitted amicus curiae briefs supporting Johnson.

The attorney general maintains that the Second District went too far in its ruling.

“Although [the Dram Shop Act] preempts a wide array of torts based on the sale of alcohol to patrons, it leaves to the common law torts like the one committed here, where an employer encouraged workers to drink as a key part of its business model, knew that such drinking was common, and took no steps to make sure those workers stayed off Ohio’s roadways while impaired,” the attorney general wrote in the filing.

The Ohio Association for Justice, which is made up of about 1,500 attorneys who practice personal injury and consumer law, agrees. The association states that an innocent third party isn’t prevented by the Dram Shop Act from suing but may instead sue a liquor permit holder for negligence when the intoxicated person who causes harm is a worker rather than a patron. In the Dram Shop Act, the General Assembly didn’t envision or intend to expand the immunity for permit holders beyond those cases that involve providing alcohol to patrons, the association contends.

MADD states that the club “deal[s] in two lines that fuel each other: liquor and sex.” While it was shown at trial that the club encourages alcohol sales to strippers and profits from the approach, the club took no steps to ensure that dancers are transported home safely or to prevent the danger they pose to the public, MADD asserts. The group contends that Ohio law doesn’t give liquor permit holders complete immunity from civil lawsuits outside the Dram Shop Act’s few exceptions and argues that upholding the damages awarded in this case would deter these types of establishments from continuing this “outrageously irresponsible business practice.”

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Nichole Johnson: Douglas Cole, 614.481.0900

Representing Thirty-Eight Thirty Inc. and Michael C. Ferraro: Jonathan Freeman, 937.223.1201

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Was Officer’s Warrantless Search of Detained Suspect’s Purse Constitutional?

State of Ohio v. Jamie Banks-Harvey, Case no. 2016-0930
Twelfth District Court of Appeals (Warren County)

ISSUES:

  • Did an officer’s entry into a car without a search warrant to retrieve the purse of an already arrested suspect seated in the officer’s patrol car violate the suspect’s U.S. and Ohio constitutional rights?
  • Was the officer’s subsequent search of the purse at the scene of the arrest and seizure of drugs in it a violation of the suspect’s constitutional rights?

BACKGROUND:
Jamie Banks-Harvey was pulled over for speeding in the Warren County city of Franklin by Ohio State Highway Patrol Trooper Matthew Keener in October 2014. Charles Hall, Banks-Harvey’s boyfriend, was in the passenger seat and her friend was in the back seat. Banks-Harvey admitted to the trooper that she didn’t have a driver’s license and presented a state ID card. Keener removed her from the car, handcuffed her, and placed her in the back seat of his cruiser. He ran an investigative check on the three. It revealed that Banks-Harvey had an outstanding warrant in neighboring Montgomery County and that her friend had an outstanding drug-paraphernalia warrant. Her boyfriend had a valid driver’s license and no warrants.

Keener returned to the car and asked the boyfriend for consent to search the car, which he refused. Keener reached into the vehicle, grabbed Banks-Harvey’s purse, and placed it on the hood of his cruiser. During this time, another officer arrived to assist. The two officers conversed about seeing a clear, open gel cap on the car’s floorboard, which they believed had held drugs. Keener then searched the purse, retrieved what he believed to be cocaine and heroin, and conducted field tests confirming the two drugs. He and the other officer arrested Banks-Harvey’s friend and permitted her boyfriend to drive the car away.

Following an indictment for felony drug possession and misdemeanor charges for possession of drug paraphernalia and drug abuse instruments, Banks-Harvey requested a trial court hearing to suppress from the evidence the drugs and other materials taken from her purse, arguing that the trooper conducted an unlawful search. The trial court found the contents of her purse were admissible under the theory that the drugs would inevitably be discovered after her arrest for the outstanding warrant and the intent of the officer to take her to jail.

Suspect Contests Charges
After the failed attempt to suppress the evidence, Banks-Harvey pleaded no contest to the four charges and was sentenced to three years of community control, which included the condition that she enter an inpatient treatment program at River City Correctional Center.

She appealed her sentence to the Twelfth District Court of Appeals. In a 2-1 decision, the Twelfth District affirmed the trial court’s decision not to suppress the evidence, but for other reasons. The Twelfth District ruled that Keener conducted a “valid administrative inventory search” following standard procedures of the Ohio State Highway Patrol.

Banks-Harvey appealed that decision to the Ohio Supreme Court, which agreed to hear the case. The Court will consider the case at a special off-site session in Morgan County.

Searches Unconstitutional, Banks-Harvey Argues
The U.S. Constitution’s Fourth Amendment and Article I, Section 14 of the Ohio Constitution protect against unreasonable searches and seizure, and law enforcement can only conduct a search without a warrant under specifically established and well-defined rules, Banks-Harvey explains. She asserts that Keener didn’t follow the requirements for either a valid search that would allow the “inevitable discovery doctrine” to apply or a valid inventory search conducted under standard patrol procedures.

Banks-Harvey noted the Twelfth District rejected the inevitable discovery theory, holding that in order to claim inevitable discovery, the police must establish that an alternate line of investigation had begun prior to Keener’s search of the purse. Prosecutors argued that the other officer had spotted the gel cap on the floor and informed Keener about it before Keener started searching the purse, and that this is proof the other officer was pursuing an alternative line of investigation. Banks-Harvey points out that Keener had his patrol car dashboard camera activated at the time of the search, but positioned his car in a way that Hall’s car wasn’t visible. That left only the audio as evidence, and it didn’t clearly indicate that the officer started investigating before Keener searched the purse, Banks-Harvey argues. Moreover, the rule should apply at the point in time when the purse was taken from the car, she maintains, which was even earlier than any start of the search by the other officer. Without the proof of the start of the alternative investigation, the exception that would permit a search can’t be applied, and the evidence should be suppressed, she maintains.

Banks-Harvey notes that Keener testified that he intended the purse to go with Banks-Harvey to the Montgomery County jail and, in order to ensure his safety and deter contraband from being smuggled into jail, he conducted an inventory search of her purse before transporting her. Keener said that was standard patrol procedure, although he didn’t produce a written copy of the procedure at the hearing.

The U.S. Supreme Court has found that an inventory search doesn’t require a warrant because its purpose isn’t to detect evidence of a crime, but to protect a person’s property while in custody; protect the police against any claim of lost, stolen, or vandalized property; and protect police from dangerous objects in the searched items. Banks-Harvey notes that Keener didn’t catalogue the items in her purse, and didn’t verify the accuracy of its contents with her. She argues the purpose of the search was to discover weapons and contraband, which is not an inventory search and was conducted illegally.

Banks-Harvey Cites Ruling Regarding Similar Search
Banks-Harvey also notes another exception allowing a search without a warrant, which is a “search incident to a lawful arrest.” Citing the U.S. Supreme Court’s 2009 Arizona v. Gant decision, she explains that police can search a vehicle that is “related to” the arrest of a vehicle occupant without a warrant. However, that search can happen only if the suspect is within reaching distance of the car’s interior or it’s reasonable to believe the vehicle contains evidence related to the arrest.

Banks-Harvey maintains that wasn’t a concern with her because she was handcuffed in the back of the patrol car, far from Hall’s car, at the time the search of the purse began, and at that time she was already arrested for having an outstanding warrant. The contents of the purse had nothing to do with the warrant so it wasn’t related to the offense and couldn’t be searched without a warrant, she concludes.

Inventory Search Followed Rules, Prosecutor Asserts
While an inventory search is typically associated with an impounded vehicle, searches of bags are also permitted, the Warren County Prosecutor’s Office maintains. Citing the U.S. Supreme Court’s 1983 Illinois v. Lafayette decision, the prosecutor argues that it isn’t unreasonable for a police department to have a routine procedure to search any article in possession of a lawfully arrested person, and that at least one other Ohio appeals court has upheld a search almost identical to the search of Banks-Harvey’s purse. In both cases, the courts didn’t require a vehicle impoundment.

“Rather, it was the fact of the defendant’s arrest and transport to jail, in connection with a standard policy for searching the arrestee’s personal belongings, that justified the search,” the prosecutor’s brief states.

The prosecutor also points out the Keener had grounds to charge her boyfriend with a crime and impound the car. Hall testified that he knew Banks-Harvey had a suspended license, but he had injured his hand and she was driving him to the hospital when they were pulled over for speeding. The prosecutor notes that Keener explained to Hall that he could arrest him and impound the car for letting Banks-Harvey drive without a license. The prosecutor notes Keener also could have taken Hall at his word that he was too injured to drive and towed his car. In either of those cases, the police would have conducted an inventory search of the vehicle, and Banks-Harvey’s purse would’ve been inside the vehicle and searched.

Allowing the boyfriend to drive away and searching the purse before taking Banks-Harvey to jail were reasonable steps that didn’t require a search warrant, the prosecutor concludes.

Friend-of-the-Court Brief
An amicus curiae brief supporting the prosecutor’s position has been submitted by the Ohio Attorney General’s Office. The brief includes text from the highway patrol’s written policy on inventory searches, and the attorney general argues that Keener’s search was legal for a number of reasons, including following the policy.

Prosecutor Divides Time
The Court approved a request by the county prosecutor and the attorney general to split oral argument time.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the State of Ohio from the Warren County Prosecutor’s Office: Kirsten Brandt, 513.695.1325

Representing Jamie Banks-Harvey from the Ohio Public Defender’s Office: Eric Hedrick, 614.466.5394

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What Constitutes a Doctor’s “Apology” that Can Be Excluded from a Malpractice Lawsuit?

Dennis Stewart, Administrator of the Estate of Michelle Stewart v. Rodney E. Vivian, Case no. 2016-1013
Twelfth District Court of Appeals (Clermont County)

ISSUES:

  • Does Ohio’s “apology statute” bar statements of fault, error, or liability from admission into evidence when they are made during the course of apologizing or commiserating with a patient or patient’s family?
  • Does the definition of “apology” as used in R.C. 2317.43 include statements of fault, error, or liability?

BACKGROUND:
Dennis Stewart, husband of Michelle Stewart, filed a wrongful death lawsuit against Dr. Rodney Vivian and Mercy Hospital Clermont in Batavia after Michelle Stewart committed suicide by hanging in Mercy’s inpatient psychiatric unit in 2010. She had been admitted to treatment at Mercy hours after an earlier suicide attempt.

After being assessed by a registered nurse and interviewed by Vivian, he ordered staff to check on Michelle Stewart every 15 minutes throughout the day as she remained in a private room. During one of those 15-minute windows, she tied her bedsheet into a noose and hung herself from the room’s bathroom door. Dennis Stewart discovered her hanging when he arrived for a visit, and his wife was transferred to the hospital’s intensive care unit (ICU), where she remained alive but unconscious for several days before dying.

Two days after the hanging, Dennis Stewart and members of his wife’s family gathered around her in the ICU. Stewart, sister-in-law Stacey Sackenheim, and Vivian provided conflicting testimony on their encounter in the ICU.

Stewart said he remembered Vivian saying that “he didn’t know how it happened but she had just told him that she still wanted to be dead, that she wanted to kill herself.” Stewart said he asked Vivian why he didn’t keep a closer eye on her, and that Vivian didn’t answer or he didn’t listen to Vivian as he was more focused on his dying wife. When asked if Vivian tried to apologize or express sympathy, Stewart said he “didn’t interpret it that way.”

Sackenheim testified that Vivian walked into the room, walked to the patient’s end of the bed, and asked the family, “So what do you think happened here?” She said Stewart told him his wife obviously tried to kill herself, of which Vivian responded “Yeah, she said she was going to do that. She told me she would keep trying.” Sackenheim also testified that Vivian didn’t apologize or express sympathy to the family.

Vivian testified twice about the encounter, once in a deposition, and again before the trial judge. Vivian said that he didn’t remember what was said in the ICU, and later he said he told the family members he “was sorry” and that he went to the ICU to “express how deeply sorry he was.”

Stewart Seeks to Admit Doctor’s Statement
Stewart sought to present in court Vivian’s statement that he knew his wife would attempt suicide again. It would be evidence about the patient’s condition to establish Vivian’s fault, error, or liability. Stewart maintained that if Vivian knew Michelle Stewart would attempt suicide again, then the appropriate standard of care was to order “constant observation” or “one-to-one observation,” rather than the 15-minute checks.

Vivian filed a motion in limine citing R.C. 2317.43, and claimed his statements were inadmissible because they were an apology. The trial judge initially acknowledged the doctor’s statement as not falling under the statute’s definition of “sympathy, commiseration, condolence, compassion, apology, or a general sense of benevolence.” However, after further review, the trial judge found the terms “apology” and “commiseration” can be defined broadly to exclude statements of fault, and he ruled the doctor’s statement was inadmissible.

Mercy settled its portion of the lawsuit with Stewart, and a jury found Vivian wasn’t negligent. Stewart appealed to the Twelfth District Court of Appeals, claiming several errors by the trial court, including barring admission of Vivian’s comments at the ICU. The Twelfth District affirmed the decision, finding that “apology” is a separate concept from “sympathy, commiseration, condolence, compassion, or a general sense of benevolence” because definitions of the term “apology” contain expressions of fault. The Twelfth District wrote that if the General Assembly had intended statements of fault to be excluded, it could have expressly stated it in the statute.

The Twelfth District noted its decision was in conflict with one from the Ninth District Court of Appeals, which in its 2011 Davis v. Wooster Orthopaedics decision found that statements of fault aren’t excluded and should be admitted as evidence. The Ohio Supreme Court had agreed to review Davis on appeal, but the parties settled the case before the Court heard it.

In its opinion, the Ninth District explained that 36 states had similar “apology statutes” and a majority of them have clauses that specifically distinguished apologies from statements of fault. The Ninth District found that most states have chosen to admit statements of fault while excluding apologies and statements of sympathy. Other state laws read that if a fault statement is made in conjunction with an apology, it is also excluded as evidence in the case. Ohio and a handful of states adopted laws that didn’t expressly include or exclude statements of fault.

Stewart appealed the Twelfth District’s decision, and the Supreme Court agreed to consider the certified conflict question on whether the law covers statements of fault. The Court will consider the case during an off-site session in Morgan County.

Ohio’s “Apology Statute”

R.C. 2317.43(A): In any civil action brought by an alleged victim of an unanticipated outcome of medical care or in any arbitration proceeding related to such a civil action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, 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.

Ohio’s “Apology Statute”

R.C. 2317.43(A): In any civil action brought by an alleged victim of an unanticipated outcome of medical care or in any arbitration proceeding related to such a civil action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, 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.

Context of Law Suggests Admissions Not Excluded, Stewart Argues
Stewart argues that two key legal principles should prompt the Court to side with him. First, the Court should consider the definition of “apology” in the law to be similar to the words around it, and he notes that the word appears with “sympathy, commiseration, condolence, compassion, or a general sense of benevolence.” Stewart suggests the Ninth District applied the logic that words “of the same class” and a word that can be “known from its associates” help explain the General Assembly’s intent. The Ninth District concluded the legislature intended to define “apology” as similar to “sympathy” and not to include fault or admission of liability. The Ninth District’s opinion also notes that after the legislature adopted the law in 2004, three attempts to amend the statute to add the words “fault and error” have failed.

Stewart’s second key point is that a law excluding information as evidence that would normally be admitted is a “privilege,” and Ohio law requires language describing a privilege to be narrowly interpreted. If the Court adopted a narrow definition of “apology,” it wouldn’t include the concepts of fault and error, he argues. Stewart notes the law doesn’t define “apology” and while some dictionary definitions of the word include expressing error or fault, not all of them do.

Stewart also objects to the trial court’s exclusion of the doctor’s statement after the judge found that Vivian might not have even apologized, but was only “intending” to apologize when he commiserated with the family. Stewart warns that if admissions of fault are excluded if stated along with an apology, or if courts rule that physicians only have to “intend” to apologize to have the statement excluded, it could lead to unfair outcomes.

“In their view, if a defendant said ‘I was drunk when I removed your late father’s left lung instead of his right. I’m sorry,’ then that statement would be inadmissible because of the tacked-on ‘I’m sorry.’ In fact, the appellee’s argument goes even farther, because in this case he didn’t even say he was sorry,” Stewart’s reply brief states. “The appellee would have this Court hold that a statement equivalent to ‘I was drunk when I removed your late father’s left lung instead of his right’ would be inadmissible if the defendant later testifies that he had intended to, but did not, apologize.”

Statute Meant to Foster Frank Communication, Vivian Asserts
Because the legislature didn’t restrict the meaning of “apology,” the term is ambiguous and the Court should interpret it broadly, Vivian maintains. He cites the Court’s 2013 Estate of Johnson v. Randall Smith, Inc. decision, which found the purpose of the apology statute is to provide “opportunities for healthcare providers to apologize and console victims of unanticipated outcomes of medical care without fear that their statements will be used against them in a malpractice suit, by making the statements inadmissible as evidence of an admission of liability or a statement against interest.” He poses that the law intended to couple statements of fault with apologetic statements so that physicians could provide comfort to patients and their families.

“To parse out statements considered, or received, as statements of fault or liability from other undisputed apologetic or commiserative statements made during the course of an encounter would eviscerate the statute’s designed purpose of encouraging frank communications, and render the statute's protections meaningless,” his brief states.

In contrast to Stewart, Vivian argues that the law is meant to include all statements made while commiserating with the patient and the patient’s family. Analyzing the grammar of the statement in order to separate the apology from the admission of fault would make the law unworkable. He explained that instead of encouraging communication, doctors would be fearful that their statements would be used against them in litigation.

Friend-of-the-Court Brief
An amicus curiae brief supporting Vivian’s position has been submitted jointly by the Ohio State Medical Association, the Ohio Hospital Association, Ohio Osteopathic Association, and the Academy of Medicine of Cleveland and Northern Ohio. In their brief, they note that statements by a doctor taking responsibility for an adverse result by saying “it’s my fault” doesn’t mean the physician committed malpractice.

The group also warns that if statements are parsed it will lead to “lopsided results.” The group explains that under the Ninth District’s interpretation if a doctor apologizes and takes responsibility for the medical error in the same statement, then the jury wouldn’t get to hear the apology but would hear the doctor’s admission, which wouldn’t provide the full context of the conversation. And if doctors could only say “I’m sorry” without some acceptance of fault, it’s less likely to feel like an apology to the patient or families, they conclude.

“Further, if doctors are not able to take responsibility for their actions when speaking to patients, a simple statement of condolence may be worse than saying nothing at all,” their brief states. “Without an apology that accepts a measure of fault, an ‘I’m sorry’ does not go very far towards repairing the physician-patient relationship following a medical accident or mistake. Here, as in so many contexts, the acceptance of responsibility is the key aspect of an apology.”

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Dennis Stewart: Peter Saba, 513.533.2701

Representing Rodney E. Vivian: Aaron VanderLaan, 859.431.6100

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.

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