When a Doctor Says "I'm Sorry" to a Grieving Family: What Stewart v. Vivian Means
The Supreme Court of Ohio held a doctor's apology to a family can be kept from a jury even if it admits fault. What Stewart v. Vivian means for families.
Families who lose someone after medical care often remember a single conversation for years: the moment a doctor or nurse came to the bedside or the waiting room and said something like "I'm so sorry" or "This should not have happened." Many families assume those words will matter if they later ask a court to hold the provider responsible.
On September 12, 2017, the Supreme Court of Ohio decided Stewart v. Vivian, 2017-Ohio-7526, and held that under Ohio's apology statute, a health care provider's expression of apology can be kept from the jury as evidence of liability, even if the apology includes an acknowledgment that the care fell below the standard of care. Here is what the court decided and what it means for families.
What happened
According to the court's opinion, Michelle Stewart was admitted to the psychiatric unit of a hospital in Clermont County in February 2010 after a suicide attempt. Her admitting physician ordered that staff check on her visually every 15 minutes. The next evening, her husband arrived to visit and found her unresponsive in her room. She was placed on life support and died several days later.
While she was in intensive care, the doctor came to her room and spoke briefly with her family before one of them asked him to leave. Family members and the doctor later gave different accounts of what he said. Her husband, individually and as administrator of her estate, filed claims including wrongful death against the doctor and the hospital. The hospital settled. Before trial, the court excluded the doctor's statements in the ICU under Ohio's apology statute, and the jury later returned a verdict for the doctor.
What the apology statute says
The statute, R.C. 2317.43, was enacted in 2004. Division (A) provides that in a civil action brought by an alleged victim of an unanticipated outcome of medical care, statements, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, made by a health care provider to the patient or the patient's relative or representative, are inadmissible as evidence of an admission of liability or an admission against interest. The statute defines "relative" broadly. It includes spouses, parents, grandparents, stepparents, children, grandchildren, siblings, a spouse's parents, and anyone with a family-type relationship with the patient.
Ohio's appeals courts disagreed about one question: does the statute protect only "pure" expressions of sympathy, or also apologies that admit fault?
What the Supreme Court decided
The court held that the statute is unambiguous. Applying the ordinary meaning of "apology," the court held that a statement expressing apology is one that expresses a feeling of regret for an unanticipated outcome of the patient's medical care and may include an acknowledgment that the patient's medical care fell below the standard of care. Under that reading, the statute can keep even an apology that admits fault from being used as evidence of liability. The court affirmed the exclusion of the doctor's statements.
Chief Justice O'Connor, joined by Justice O'Neill, agreed with that definition but dissented from the result. In her view, what the doctor said, as described by the witnesses, did not express apology or sympathy at all, and should not have been excluded. She warned that the line should depend on what was actually said, not on what the speaker intended.
What this means for families
This decision is not good news for families, and we want to say so plainly. A doctor's words of regret, even words that seem to admit a mistake, will often not be heard by a jury as proof that the care was negligent.
But it is important to understand what the decision does not do.
It does not end a medical wrongful death claim. A family's case was never supposed to rest on a bedside conversation. Medical negligence cases are proven with medical records, the testimony of qualified medical witnesses about what the standard of care required, and evidence of what actually caused the death. Our page on medical malpractice wrongful death explains how these cases are built.
What was said can still point the way. Even if a statement cannot be used as an admission, it may tell your lawyer where to look: which order was missed, which test was not run, which shift was short-staffed. Write down what you remember as soon as you can, including who was present, the date and time, and the exact words if possible. Keep that note with your other papers.
The facts still have to be gathered early. In this case, for example, the questions centered on what a hospital's observation order required and whether it was followed. Records like nursing notes, observation logs, staffing schedules, and policies are what answer those questions. If your loved one died unexpectedly in a hospital or facility, our post on whether to request an autopsy explains why medical findings after death can matter so much.
Apologies can still be welcome. The apology statute was meant to let caregivers express sympathy without fear. Many families value hearing a provider say "I'm sorry." Nothing in this decision should discourage families from accepting kindness. It simply means a family should not count on those words as evidence.
Deadlines matter in medical cases
Under R.C. 2125.02(D)(1), a wrongful death action generally must be filed within two years after the death. Some related claims arising from medical care can be subject to shorter deadlines and special filing requirements. That is why families who have questions about a loved one's care should talk with a lawyer early, well before the two-year mark.
The wrongful death claim is brought by the personal representative of the estate for the benefit of the surviving spouse, children, parents, and other next of kin, under R.C. 2125.02(A)(1). You can read more about how Ohio wrongful death law works. If children are grieving in your home while a case is pending, our post on talking with children about a sudden death may help.
This article is general information about Ohio law, not legal advice about your situation. Reading it does not create an attorney-client relationship. Deadlines and rules change; talk to a lawyer about your family's situation.
You Don't Have to Carry This Alone. Talk With a Dayton Wrongful Death Lawyer.
If your loved one died after medical care and you have questions that no one has answered, there is no cost to talk with us. We can explain what the records may show and what deadlines apply, and we keep families informed as the facts come in.