[Cite as Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507.]




   ESTATE OF JOHNSON ET AL., APPELLEES, v. RANDALL SMITH, INC., ET AL.,
                                      APPELLANTS.
     [Cite as Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440,
                                    2013-Ohio-1507.]
Medical malpractice—Admissibility of statement of apology by healthcare
        provider—Prospective application of R.C. 2317.43.
    (No. 2012-0014—Submitted February 5, 2013—Decided April 23, 2013.)
    APPEAL from the Court of Appeals for Portage County, No. 2010-P-0050,
                       196 Ohio App.3d 722, 2011-Ohio-6000.
                                  __________________
                               SYLLABUS OF THE COURT
R.C. 2317.43, which precludes the admission of statements of apology by a
        healthcare provider, applies to any cause of action filed after September
        13, 2004.
                                  __________________
        LANZINGER, J.
        {¶ 1} In this case, we confront the proper application of R.C. 2317.43,
Ohio’s statute that prevents the admission of certain statements made by
healthcare providers. Also known as the apology statute, R.C. 2317.43 provides
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. We are asked
to determine whether R.C. 2317.43 can be applied to a statement of apology made
by a healthcare provider before the statute took effect.
                                 SUPREME COURT OF OHIO




         {¶ 2} Because we conclude that the Eleventh District Court of Appeals
erred in its analysis, we reverse the judgment that remanded this case for a new
trial.
                                        I. Background
         {¶ 3} On April 24, 2001, appellant Dr. Randall Smith performed surgery
on Jeanette Johnson to remove her gall bladder.1 Although the surgery was
scheduled to be done laparoscopically, when Mrs. Johnson’s common bile duct
was injured during the procedure (a known surgical risk), Dr. Smith converted to
an “open procedure” to repair the duct. After the surgery, Dr. Smith explained to
Mrs. Johnson the manner in which the injury had occurred and the manner in
which he had repaired the duct.
         {¶ 4} One month later, Mrs. Johnson returned to the hospital because of
complications resulting from the bile-duct injury. Her treatment required that she
be transferred to another hospital. Before the transfer, she became upset and
emotional. In an effort to console her, Dr. Smith took Mrs. Johnson’s hand and
attempted to calm her by saying, “I take full responsibility for this. Everything
will be okay.”
         {¶ 5} On August 19, 2002, Mrs. Johnson and her husband, Harvey
Johnson, filed a medical-malpractice action against Dr. Smith and the corporation
through which he conducted his practice, but they voluntarily dismissed that
action in September 2006. A new complaint was filed on July 26, 2007, in which
the Johnsons alleged that Dr. Smith had rendered negligent medical treatment to
Mrs. Johnson, and Mr. Johnson alleged that he had sustained a loss of consortium.
         {¶ 6} A jury trial was scheduled for June 2010. Before the trial began,
Dr. Smith submitted a motion in limine to prohibit the introduction of any


1. Jeanette Johnson died on August 17, 2012. Jeannine Johnson and Harvey W. Johnson are the
administrators of the estate of Jeanette Johnson. The estate of Jeanette Johnson is substituted in
this action as an appellee in the place of Jeanette Johnson.




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                                  January Term, 2013




evidence regarding the statement of apology that he made to Mrs. Johnson before
her transfer to the second hospital.           Dr. Smith asserted that his statement
constituted an expression of sympathy that could not be admitted into evidence
under R.C. 2317.43.
        {¶ 7} The Johnsons submitted two responses to the motion in limine.
First, they argued that the statement was not an apology or expression of
sympathy, but rather an admission of the doctor’s negligence. Second, they
argued that R.C. 2317.43 did not apply to Dr. Smith’s statement, because the
statute was enacted and took effect three years after the malpractice claim arose
and the statement was made. At the hearing on the motion in limine, Mrs.
Johnson, her daughter, and their friend testified about Dr. Smith’s statement and
the context in which it was made. After close of this testimony, the trial court
ruled that any evidence regarding the doctor’s statement would be inadmissible at
trial. Specifically, the trial court stated:


                She [a witness], I think, covered the circumstances where
        Miss [sic] Johnson was distressed, that she obviously was not
        comfortable, she was suffering, upset, and that Dr. Smith, in a
        compassionate manner, came over and was sympathetic and acted
        to comfort her.
                He took her hand, and in doing so, stated that he took
        responsibility for the situation in having her transferred.
                It’s the Court’s opinion that the statements and gestures and
        actions are covered under 2317.43 [effective September 13, 2004],
        and, therefore, I am going to grant the motion in limine and
        exclude the statement.




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       {¶ 8} On June 18, 2010, the jury returned a general verdict in favor of
Dr. Smith on the two claims asserted by the Johnsons.
       {¶ 9} The Johnsons appealed, and the Eleventh District Court of
Appeals, in a two-to-one decision, reversed the trial court’s judgment, holding
that the trial court had erred in applying R.C. 2317.43 retroactively to exclude Dr.
Smith’s statement, because the General Assembly had not expressly stated its
intent that the statute should apply retroactively. Johnson v. Randall Smith, Inc.,
196 Ohio App.3d 722, 2011-Ohio-6000, 965 N.E.2d 344, ¶ 19-22 (11th Dist.).
The court of appeals ordered a new trial on the merits. The appellate court held
that jurors could have determined that the words “take full responsibility” when
taken in context meant that Dr. Smith was admitting fault. The court of appeals
held that the statement should have been admitted because its probative value was
not substantially outweighed by the danger of unfair prejudice. Id. at ¶ 27-28.
The dissenting judge, however, focused not on when Dr. Smith made the
statement but on when the complaint was filed. In his view, R.C. 2317.43 was
applicable because “the Johnsons’ civil action was not ‘brought’ until 2007, after
the effective date of the statute.” Id. at ¶ 31 (Cannon, J., dissenting).
       {¶ 10} We accepted Dr. Smith’s discretionary appeal and now consider
two propositions of law:


               Proposition of Law No. 1: Ohio Revised Code § 2317.43
       applies to any cause of action commenced or filed after the
       enactment date of the statute and serves to preclude the
       introduction into evidence [of] a healthcare provider’s sympathetic
       statements and gestures.
               Proposition of Law No. 2: Ohio Revised Code § 2317.43 is
       procedural in nature and applies retroactively to preclude the




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       introduction into evidence [of] a healthcare provider’s sympathetic
       statements and gestures.


       {¶ 11} The two propositions of law can be reduced to one issue: Does
R.C. 2317.43 apply to the statement made by Dr. Smith to apologize to and
console Mrs. Johnson?
       {¶ 12} We now hold that R.C. 2317.43, which precludes the admission of
statements of apology by a healthcare provider, applies to any cause of action
filed after September 13, 2004.
       {¶ 13} We therefore reverse the judgment of the Eleventh District and
reinstate the judgment on the jury’s verdict.
                                     II. Analysis
A. The Statute
       {¶ 14} The question before the court is whether R.C. 2317.43, which
became effective on September 13, 2004, applies to a statement of apology made
in 2001 but offered in evidence in a case that was not filed until 2007. The
General Assembly, in enacting R.C. 2317.43, prohibited the introduction of any
sympathetic statements and gestures made by a healthcare provider in any civil
action “brought” by an alleged victim of an unanticipated outcome of medical
care. The effective date of the statute was September 13, 2004. 150 Ohio Laws,
Part III, 4146, 4153. Since its enactment, subsection (A) has stated:


                 (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



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           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.


(Emphasis added.) R.C. 2317.43(A).
B. Statutory Interpretation
           {¶ 15} The first phrase, “In any civil action brought by an alleged victim,”
determines the application of the statute. A “civil action” has been defined as an
“[a]ction brought to enforce, redress, or protect private rights. In general, all types
of actions other than criminal proceedings.” Black’s Law Dictionary 222 (5th
Ed.1979). A “cause of action” is defined as “[a] group of operative facts giving
rise to one or more bases for suing; a factual situation that entitled one person to
obtain a remedy in court from another person.” Black’s Law Dictionary 251 (9th
Ed.2009). Case law has treated “brought” synonymously with “commenced.”
E.g., Cover v. Hildebran, 103 Ohio App. 413, 415, 145 N.E.2d 850 (2d
Dist.1957).
           {¶ 16} When a statute’s language is clear and unambiguous, a court must
apply it as written. Zumwalde v. Madeira & Indian Hill Joint Fire Dist., 128 Ohio
St.3d 492, 2011-Ohio-1603, 946 N.E.2d 748, ¶ 23-24; Sears v. Weimer, 143 Ohio
St. 312, 55 N.E.2d 413 (1944), paragraph five of the syllabus. The language of
R.C. 2317.43(A) is clear and unambiguous. By its express terms, R.C. 2317.43
applies to “any civil action brought” by persons described in the statute. This
means that the statute applies to a civil lawsuit filed after the effective date of the
statute.




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                                January Term, 2013




       {¶ 17} The Johnsons argue that they “brought” this civil action when they
initially filed their original complaint against Dr. Smith in August 2002. That
action, however, was voluntarily dismissed in 2006. When an action has been
voluntarily dismissed, Ohio law treats the previously filed action as if it had never
been commenced. Zimmie v. Zimmie, 11 Ohio St.3d 94, 95, 464 N.E.2d 142
(1984). The action filed by the Johnsons in 2002 must be treated as if it never
existed. The Johnsons “brought” or commenced this civil action upon the filing
of their complaint on July 26, 2007. When this action was brought by the
Johnsons, R.C. 2317.43 had been in effect for almost three years.
C. Prospective Application
       {¶ 18} The court of appeals, in analyzing this issue, looked at it another
way and assumed that the statement that Dr. Smith made to Mrs. Johnson in 2001
was to be considered in its analysis of whether the statute applied. The court of
appeals concluded that since the conduct occurred in 2001, the statement could
not be properly excluded under the statute. This interpretation, however, does not
give effect to the plain meaning of the statute, because the Johnsons’ “civil
action” was not “brought” until 2007, after the effective date of the statute.
       {¶ 19} Unquestionably, the lawsuit filed by the Johnsons against Dr.
Smith is a “civil action” as that term is used in R.C. 2317.43. Similarly, there can
be no doubt that this action was “brought” by the Johnsons. Dr. Smith performed
surgery on Mrs. Johnson and made the statement in 2001, when the cause of
action for medical negligence arose. Although the Johnsons originally filed suit
before the effective date of the statute, they voluntarily dismissed the complaint in
2006 after the statute’s effective date. This civil action was commenced, that is,
“brought,” when it was filed in 2007.
       {¶ 20} R.C. 2317.43 applies to all civil actions filed after the statute’s
effective date of September 13, 2004.         “If there is no clear indication of
retroactive application, then the statute may only apply to cases which arise



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subsequent to its enactment.” Kiser v. Coleman, 28 Ohio St.3d 259, 262, 503
N.E.2d 753 (1986). We have also held that “[l]aws of a remedial nature providing
rules of practice, courses of procedure, or methods of review are applicable to any
proceedings conducted after the adoption of such laws.” Kilbreath v. Rudy, 16
Ohio St.2d 70, 242 N.E.2d 658 (1968), paragraph two of the syllabus. Moreover,
a statute is properly applied prospectively if it has been enacted after the cause of
action but before the trial of the case. See R.C. 1.48; Denicola v. Providence
Hosp., 57 Ohio St.2d 115, 117-118, 387 N.E.2d 231 (1979).
       {¶ 21} Here, the court of appeals’ concern over retroactive application of
the statute was unnecessary, for the trial court used a prospective application to
exclude Dr. Smith’s statement. R.C. 2317.43 took effect on September 13, 2004,
covering “any civil action brought” after that date. The Johnsons’ filing of this
case on July 26, 2007, meant that the statute applied. This interpretation gives
effect to the plain meaning of the statute, as well as R.C. 1.48’s instruction that
laws are presumed to apply prospectively. Denicola; Kilbreath.
D. No Abuse of Discretion
       {¶ 22} Because we have determined that the statute applies, the next step
is to determine whether Dr. Smith’s statement was properly excluded. The court
of appeals determined that the statute did not apply and then addressed whether
the statement was admissible under the Ohio Rules of Evidence. Johnson v.
Randall Smith, Inc., 196 Ohio App.3d 722, 2011-Ohio-6000, 965 N.E.2d 344,
¶ 22. Decisions involving the admissibility of evidence are reviewed under an
abuse-of-discretion standard of review. State v. Hancock, 108 Ohio St.3d 57,
2006-Ohio-160, 840 N.E.2d 1032. Similarly, decisions granting or denying a
motion in limine are reviewed under an abuse-of-discretion standard of review.
Illinois Controls, Inc. v. Langham, 70 Ohio St.3d 512, 526, 639 N.E.2d 771
(1994). For an abuse of discretion to have occurred, the trial court must have
taken action that is unreasonable, arbitrary, or unconscionable.       State ex rel.



                                         8
                                January Term, 2013




Beacon Journal Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557,
819 N.E.2d 1087, ¶ 59.
       {¶ 23} In this case, the trial court heard testimony from witnesses before
ruling on the motion in limine.2 Based upon its observation, the court concluded
that “the statements and gestures and actions are covered under 2317.43.” The
court of appeals, in reviewing the decision, did not analyze under an abuse-of-
discretion standard whether the trial court had acted unreasonably, arbitrarily, or
unconscionably in reaching its conclusion. Thus, it was improper to reverse the
trial court’s decision to exclude Dr. Smith’s statement.         The trial court had
determined that Dr. Smith was faced with a distressed patient who was upset and
made a statement that was designed to comfort his patient. This is precisely the
type of evidence that R.C. 2317.43 was designed to exclude as evidence of
liability in a medical-malpractice case.
                                   III. Conclusion
       {¶ 24} Dr. Smith’s statement was properly excluded pursuant to R.C.
2317.43. We therefore reverse the judgment of the Eleventh District Court of
Appeals and remand the case to the trial court to reinstate the jury’s verdict and
the trial court’s judgment.
                                                                   Judgment reversed
                                                                and cause remanded.
       O’CONNOR, C.J., and KENNEDY, FRENCH, and O’NEILL, JJ., concur.
       PFEIFER and O’DONNELL, JJ., concur in judgment only.
                               __________________
       Perantinides & Nolan Co., L.P.A., Antonios P. Tsarouhas, and Paul G.
Perantinides, for appellees.



2. The witnesses were Mrs. Johnson; her daughter, Janine Johnson; and their friend, Amy
Semprock.




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       Bonezzi, Switzer, Murphy, Polito & Hupp Co., L.P.A., Brett C. Perry,
John S. Polito, and Jason A. Paskan, for appellants.
       Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor
General, and Michael J. Hendershot, Chief Deputy Solicitor, urging reversal for
amicus curiae state of Ohio.
       Bonezzi, Switzer, Murphy, Polito & Hupp Co., L.P.A., Jennifer R. Becker,
and Brian F. Lange, urging reversal for amicus curiae the Academy of Medicine
of Cleveland & Northern Ohio.
       Bricker & Eckler and Anne Marie Sferra, urging reversal for amici curiae
Ohio Hospital Association, Ohio State Medical Association, and Ohio
Osteopathic Association.
                           ______________________




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