[Cite as Davis v. Wooster Orthopaedics & Sports Medicine, Inc., 193 Ohio App.3d 581, 2011-Ohio-3199.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

DAVIS, Admr.,                                             C.A. No.        25337

        Appellee,

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
WOOSTER ORTHOPAEDICS &                                    COURT OF COMMON PLEAS
SPORTS MEDICINE, INC., et al.,                            COUNTY OF SUMMIT, OHIO
                                                          CASE No.   CV 07 08 5379
        Appellants.


APPEARANCES:

Irene C. Keyse-Walker and Michael J. Ruttinger, for appellants.

Steven P. Okey, for appellee.




                                DECISION AND JOURNAL ENTRY

Dated: June 29, 2011



        DICKINSON, Judge.

                                           INTRODUCTION

        {¶ 1} Barbara Davis was 49 years old when she died following back surgery on July 23,

2004. Her husband, Leroy Davis, filed a wrongful-death action against her orthopaedic surgeon,

Michael S. Knapic, M.D. and his practice group, Wooster Orthopaedics & Sports Medicine, Inc.

Mr. Davis alleged that Dr. Knapic had negligently performed a lumbar microdiscectomy by

completely severing Mrs. Davis’s left common iliac artery and lacerating her iliac vein during

the procedure and failing to timely diagnose and treat the medical condition that arose thereafter.
                                                  2


At trial, the jury found against Knapic and awarded $3 million in damages. Knapic and his

practice group have appealed. This court affirms the judgment because (1) the trial court did not

admit any evidence of sympathy or apology in violation of R.C. 2317.43, (2) the trial court

exercised proper discretion in weighing the probative value of the autopsy photograph and

related medical testimony against the danger of unfair prejudice under Evid.R. 403(A), and (3)

the jury instruction regarding insurance was not improper.

                                    THE APOLOGY STATUTE

       {¶ 2} Knapic and his practice group’s first assignment of error is that the trial court

incorrectly admitted apology evidence in violation of R.C. 2317.43. Mr. Davis argues that the

trial court did not admit any apology evidence at trial and that R.C. 2317.43 does not prohibit the

use of statements of fault, responsibility, or liability as compared to statements of sympathy or

condolence. At trial, Mrs. Davis’s husband and daughter testified that after the surgery, Knapic

told them that he had nicked an artery and that he took full responsibility for it. The jury did not

hear any testimony that Knapic had told them he was sorry.

       {¶ 3} Interpretation of a statute is a question of law that this court reviews de novo.

State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, at ¶ 8. “The primary goal of statutory

construction is to ascertain and give effect to the legislature’s intent in enacting the statute.”

State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, at ¶ 9. To determine legislative intent, a

court will first look to the plain language of the statute itself. Id., citing State ex rel. Burrows v.

Indus. Comm. (1997), 78 Ohio St.3d 78, 81. “Words and phrases [must] be read in context and

construed according to the rules of grammar and common usage.” R.C. 1.42.

       {¶ 4} Under R.C. 2317.43(A), “[i]n any civil action brought by an alleged victim of an

unanticipated outcome of medical care * .*.*, any and all statements, affirmations, gestures, or
                                                   3


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.” The parties agree that the

statute prohibits the admission of a health-care professional’s statement of sympathy in a

medical-malpractice case, but disagree regarding whether it also prohibits statements admitting

liability or fault. This is an issue of first impression in Ohio.

        {¶ 5} Knapic argues that drawing a distinction between an acknowledgment of fault and

an expression of sympathy violates the intent of the statute because the word “apology,” as

commonly defined, includes an expression of fault, admission of error, or expression of regret

for an offense or failure. Knapic also argues that the statutory intent behind R.C. 2317.43 is to

avoid the obvious detriment to the physician-patient relationship that can follow an adverse

medical outcome, especially if the doctor refuses to show some compassion and speak to the

patient or the family.     According to Mr. Davis, however, a direct admission of fault and

responsibility is not what is intended by the plain and unambiguous words of the statute. See

R.C. 2317.43(A).

        {¶ 6} Among the 36 states that have adopted similar laws, the majority explicitly

distinguish between statements of sympathy and admissions of fault or liability.              Under

California’s apology law, for example, only “[t]he portion of statements * * * or benevolent

gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or

death of a person involved in an accident * * * shall be inadmissible as evidence of an admission
                                                  4


of liability in a civil action. A statement of fault * * * which is part of, or in addition to, any of

the above shall not be inadmissible pursuant to this Section.” Cal.Evid.Code 1160(a) (West

2011).    Seventeen of the states that have explicitly distinguished between expressions of

sympathy and admissions of fault have chosen to admit expressions of fault while excluding

from evidence any part of a statement that expresses sympathy. See, e.g., La.Rev.Stat.Ann.

13:3715.5 (2010) (“Any communication * * * expressing * * * apology, regret, grief, sympathy,

commiseration, condolence, compassion, or a general sense of benevolence * * * shall not be

admissible[.]* * * A statement of fault, however, which is part of, or in addition to, any such

communication shall not be made inadmissible pursuant to this Section”); see also

Cal.Evid.Code 1160(a) (West 2011); Del.Code Ann. Title 10, Section 4318 (2011); Fla.Stat.Ann.

90.4026 (West 2011); Haw.Rev.Stat. Ann. 626-1, Rule 409.5 (West 2011); Idaho Code Ann. 9-

207 (2011); Ind.CodeAnn. 34-43.5-1-4 and 34-43.5-1-5 (West 2011); Me.Rev.Stat.Ann. Title 24,

Section 2907 (2011); Md.CodeAnn., Cts. & Jud. Proc. Section 10-920 (West 2011); Mass.Gen.

Laws Ann. Ch. 233, 23D (West 2011); Mich.Comp.Laws Ann. 600.2155 (West 2011);

Mo.Ann.Stat.     538.229    (West     2011);    Neb.Rev.Stat.    Ann.     27-1201    (West     2010);

N.H.Rev.Stat.Ann. 507-E:4 (2011); Tenn.R.Evid. 409.1 (2010); Tex.Civ.Prac. & Rem. Code

Ann. 18.061 (Vernon 2011); Va.Code Ann. 8.01-52.1. The Hawaii legislature explained its

intent by commenting that its rule excluding expressions of sympathy while permitting the use of

expressions of fault “favors expressions of sympathy as embodying desirable social interactions

and contributing to civil settlements.” Haw.Rev.Stat.Ann. 626-1 (West 2011), Commentary to

Rule 409.5.

         {¶ 7} On the other hand, eight of the states that have explicitly made the same

distinction between expressions of sympathy and admissions of fault have chosen to exclude
                                                 5


both types of statements from evidence. Ariz.Rev.Stat.Ann. 12-2605 (2011); Colo.Rev.Stat.Ann.

13-25-135 (West 2011); Conn.Gen.Stat.Ann. 52-184d (West 2011); Ga. Code Ann. 24-3-37.1

(West 2010); S.C. Code Ann. 19-1-190 (2010); Utah Code Ann. 78B-3-422 (West 2010)

(excluding from evidence the sequence and significance of events relating to the unanticipated

outcome of medical care); Vt.Stat.Ann. Title. 12, 1912 (2011); Wash.Rev.Code Ann. 5.64.010

(2011). For instance, by adding the term “fault” to the same litany of sentiments found in Ohio’s

statute, Colorado’s statute makes it clear that both admissions of fault and expressions of

sympathy are inadmissible. In Colorado, “any and all statements * * * expressing apology, fault,

sympathy, commiseration, condolence, compassion, or a general sense of benevolence which are

made by a health care provider * * * to the alleged victim [or] a relative of the alleged victim * *

* which relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the

result of the unanticipated outcome of medical care shall be inadmissible as evidence of an

admission of liability or as evidence of an admission against interest.” Colo.Rev.Stat. 13-25-

135.

       {¶ 8} Some states, like Ohio, have apology statutes that do not make a clear distinction

between an alleged tortfeasor’s statement of sympathy and one acknowledging fault. Five states

have statutes with language nearly identical to R.C. 2317.43. These statutes have all been

adopted within the past eight years and apparently have not been frequently litigated. This court

has been unable to find a single judicial decision from any of those five states or from an Ohio

court interpreting the relevant statutory language.       See Mont.CodeAnn. 26-1-814 (2009);

N.D.Cent.Code 31-04-12 (2009); R.C. 2317.43 (West 2011); Okla.Stat.Ann. Title 63, 1-1708.1H

(West 2011); W.Va.Code Ann. 55-7-11a (West 2011); Wyo.Stat.Ann. 1-1-130 (2010).
                                                6


       {¶ 9} Under R.C. 2317.43(A), “all statements * * * expressing apology, sympathy,

commiseration, condolence, compassion, or a general sense of benevolence * * * are

inadmissible as evidence of an admission of liability or as evidence of an admission against

interest.” The parties appear to agree that statements of “sympathy, commiseration, condolence,

compassion, or a general sense of benevolence” do not include an acknowledgment of fault. The

question is whether the word “apology,” as used in the statute, was intended to include an

acknowledgment of fault in addition to an expression of sympathy, condolence, or compassion.

       {¶ 10} As Knapic has pointed out, the word “apology” could reasonably include at least

an implication of guilt or fault. On the other hand, “when hearing that someone’s relative has

died, it is common etiquette to say, ‘I'm sorry,’ but no one would take that as a confession of

having caused the death.” Schaaf v. Kaufman, 850 A.2d 655, 664 (Pa.Super.Ct.2004). Thus,

looking to the rules of grammar and common usage, we note that the appearance of the term

“apology” in R.C. 2317.43(A) creates some ambiguity. Reading the term in context with the

litany of other sentiments to be excluded under the statute, however, leads us to believe that the

General Assembly did not intend to include statements of fault within the statute’s ambit of

protection. The other five protected sentiments clearly do not convey any sense of fault or

liability, indicating that the statute was intended to protect apologies devoid of any

acknowledgment of fault.

       {¶ 11} According to its stated intent, the Ohio General Assembly “enact[ed] section

2317.43 * * * to prohibit the use of a defendant’s statement of sympathy as evidence in a

medical liability action.” Sub.H.B. No. 215, 150 Ohio Laws, Part III, 4146 (“H.B. 215”). From

the time that H.B. 215 was first introduced in the 125th General Assembly, the “Bill Summary”

indicated that it would “[p]rohibit the use of a defendant’s statement of sympathy as evidence in
                                                7


a medical liability action.” H.B. 215, as reported by H. Insurance (Ohio 2004). As the bill was

passed by both the House and Senate, the synopsis explained that it would “prohibit[ ] the use of

any statement of sympathy offered by a health care provider * * * as evidence of an admission

of liability or an admission against interest[.] * * * For this purpose, a statement of sympathy

includes any and all statements, affirmations, gestures, or conduct expressing apology, sympathy,

commiseration, condolence, compassion, or a general sense of benevolence[.]” H.B. 215.

       {¶ 12} This explanation, which never changed as the bill traveled through the House and

Senate, indicates that the intent was to forbid the use at trial of a medical professional’s

expression of “sympathy includ[ing] any and all statements * * * expressing apology.” Sub.H.B.

215. The General Assembly’s decision to define “a statement of sympathy” as including a

“statement[ ] * * * expressing apology” demonstrates an intention to use the word “apology” to

mean only a statement of condolence or sympathy, without including any expression of fault or

liability. Further, if the General Assembly had intended to prohibit the use of all statements of

fault uttered by medical professionals to injured patients or their families, it could have done so

by writing that all “admissions of liability” or “statements against interest” would be excluded,

rather than limiting its description of the prohibited statements to those “expressing apology,

sympathy, commiseration, condolence, compassion, or a general sense of benevolence.” R.C.

2317.43(A).

       {¶ 13} Based upon the plain language of R.C. 2317.43, the intent was to protect pure

expressions of apology, sympathy, commiseration, condolence, compassion, or a general sense

of benevolence, but not admissions of fault. This interpretation comports with the explanation of

Ohio’s General Assembly as well as the policy espoused by the majority of states that have

adopted apology statutes with an explicit distinction between sympathy and fault.          A rule
                                                 8


protecting a physician’s expression of sympathy, but not his admission of fault, from use at trial

accomplishes the goal suggested by Knapic of helping to diminish the obvious detriment to the

physician-patient relationship following a negative outcome of medical treatment. See, e.g.,

Haw.Rev.Stat.Ann. 626-1 (West 2011), Commentary to Rule 409.5. Under Ohio’s statute, a

physician may speak with a patient and/or a patient’s family members and express his heartfelt

sympathy for their pain following a negative outcome without risk of that expression of

sympathy being used against him in court.

       {¶ 14} According to the transcript, Mr. Davis testified that after the surgery, “Dr. Knapic

* * * said the back surgery went okay but he nicked an artery, and he takes full responsibility and

it was my fault.” Later, the jury heard Mrs. Davis’s adult daughter, Pamela Bickel, testify that

after the surgery, Knapic said that “as far as the back surgery, everything went fine, but * * *

when they rolled her over that her blood pressure started to drop and they did an ultrasound and

s[aw] that she was bleeding, that at some point an artery was nicked * * *. And he said, ‘It’s my

fault. I take full responsibility.’ And he said, ‘In my five years I’ve never had anything like this

happen.’”    The parties seem to agree that (1) during her deposition, Bickel testified that

following the surgery, Knapic said he was sorry, and (2) the trial court excluded that part of the

testimony at trial. The parties did not file Bickel’s deposition, and there is no evidence in the

record that Mr. Davis tried to submit evidence at trial that Knapic told family members that he

was sorry.

       {¶ 15} In this case, the testimony that the court admitted at trial did not include any

expression of apology, sympathy, commiseration, condolence, compassion, or a general sense of

benevolence. If there was testimony that Knapic said he was sorry following the surgery, that

testimony was properly excluded from trial.          R.C. 2317.43, however, does not require the
                                                  9


exclusion of admissions of liability or fault by a medical professional. Therefore, the trial court

correctly admitted the testimony of Mrs. Davis’s husband and daughter in this case. Knapic’s

first assignment of error is overruled.

                     THE AUTOPSY PHOTOGRAPH AND TESTIMONY

       {¶ 16} Knapic and his practice group’s second assignment of error is that the trial court

incorrectly admitted an autopsy photograph and related testimony from the medical examiner in

violation of Evid.R. 403(A). Mr. Davis argues that the photo is probative of the damages

element of his wrongful-death claim and that the probative value of the evidence was not

substantially outweighed by the danger of unfair prejudice.

       {¶ 17} Under Evid.R 403(A), “[a]lthough relevant, evidence is not admissible if its

probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury.”       In applying Evid.R 403(A), a trial court must, “in its

discretion, weigh the probative value of particular evidence against the danger that its admission

will cause unfair prejudice.” State v. Hoffmeyer, 9th Dist. No. 23712, 2008-Ohio-2311, at ¶ 30.

Unless the trial court abused its discretion, this court will not reverse a trial court’s weighing

under Evid.R 403(A). Id.

       {¶ 18} “Autopsy photos are inherently prejudicial when they depict gruesome, graphic

wounds, but when offered to prove elements of the offense that [the proponent] has the burden of

proving, they are usually not unfairly prejudicial.” (Emphasis sic.) State v. Wade, 2d Dist. No.

21530, 2007-Ohio-1060, at ¶ 35; see also State v. Whitfield, 2d Dist. No. 22432, 2009-Ohio-293,

at ¶ 120-127. In this case, Mr. Davis has argued that the photograph was probative of the

mental-anguish element of damages because he saw his wife just before she died, looking the

way she is depicted in the photograph. “In determining the amount of damages to be awarded,
                                                10


[in a wrongful-death action] the jury * * * may consider all factors existing at the time of the

decedent’s death that are relevant to a determination of the damages suffered by reason of the

wrongful death.” R.C. 2125.02(A)(3)(b)(i). One element of such damages is the mental anguish

that the death caused the surviving spouse. See R.C. 2125.02(B)(5). In this case, Mr. Davis had

the burden to prove damages and, therefore, to offer some evidence of the mental anguish he

suffered. He testified that while the hospital staff was still working on his wife, the doctors

called him in to see her just before she died. He said that he saw “her eyeballs moving back and

forth” and she “raised her hand” when he spoke to her. He also said that at that time, her

abdomen was open, and he “saw her intestine lying on her stomach.”

       {¶ 19} According to the medical examiner, that is the state Mrs. Davis’s body was in

when the contested photograph was taken by the medical examiner’s office. Over Knapic’s

objection, the medical examiner testified that when Mrs. Davis’s body arrived in her office, it

had a surgical incision “extend[ing] from the bottom of the chest bone down to the pubic bone.”

She was further permitted to testify that exhibit seven shows Mrs. Davis’s small bowel extruded

from the surgical incision and covered in a “plastic-like material [that] is stapled in place.” The

photograph shows Mrs. Davis’s body with an open abdominal wound covered with clear plastic.

       {¶ 20} Based on the Fifth District Court of Appeals’ decision in Hiner v. Nationwide

Mut. Ins. Co., 5th Dist. No. 2005CA00034, 2005-Ohio-6660, at ¶ 55-56, Knapic argues that the

photograph and testimony by the medical examiner should have been excluded because

“circumstances of death * * * have little to no relevance to mental anguish.” In Hiner, the Fifth

District determined that the trial court had exercised proper discretion in excluding, under

Evid.R. 403(A), evidence that the plaintiff’s grandmother had been killed by a drunk driver. Id.

at ¶ 56. Liability was not at issue in the case, however, so whether the tortfeasor was drunk
                                                11


when he caused the car crash that killed the plaintiff’s grandmother was wholly irrelevant to the

damages issue in that case. Id.

       {¶ 21} The same cannot be said of Mr. Davis’s case. In this case, Knapic disputed

liability, so the circumstances of Mrs. Davis’s death were relevant. The photograph and medical

testimony were offered to help the jury understand Mr. Davis’s testimony about his last moments

with his wife. The emotional trauma Mr. Davis experienced as a result of seeing his wife just

moments before her death in the state he described is relevant evidence of the mental anguish he

suffered as a result of her death. Because Mr. Davis had seen his wife in the same state, the

medical examiner’s testimony about how she looked and the autopsy photograph that Knapic

found objectionable were probative of Mr. Davis’s mental anguish. Upon review of the record,

we conclude that the trial court exercised proper discretion under Evid.R. 403(A). Although the

medical examiner’s testimony and the gruesome nature of the photograph may have been

prejudicial to Knapic’s case, the question under Evid.R. 403(A) is whether the evidence was

unfairly prejudicial, and it was not. Knapic’s second assignment of error is overruled.

                    JURY INSTRUCTION FORBIDDING SPECULATION
                              REGARDING INSURANCE

       {¶ 22} Knapic and his practice group’s third assignment of error asserts that the trial

court sua sponte offered a jury instruction on liability insurance that incorrectly injected

extrajudicial evidence into the jury deliberations.     In response, Mr. Davis argues that he

requested and received an instruction that appropriately conveyed the law requiring jurors to

consider only the evidence and to discourage them from speculating about the impact of

insurance.

       {¶ 23} The trial court gave the following instruction: “It is a common concern among

jurors as to the existence or non-existence of insurance. Some jurors may wish to know if the
                                                12


defendant has insurance that will pay any verdict the jurors may award to the plaintiff, or

whether the defendant will have to pay such an award out of his own pocket.               In your

deliberations, you are not to consider or discuss the issue of whether either party has or had any

kind of insurance. You are to decide the issues in this case based upon the evidence presented to

you, not upon any considerations concerning insurance. Any presumption that a party has or

does not have insurance is, first of all, not relevant; and, secondly, may be wrong. You are to

resolve the issues, all the issues presented to you, based solely on the evidence that I have

admitted and the law I’ve provided. I[n] no event may you add to or subtract from any award

based on whether either party has or does not have insurance.”

       {¶ 24} After the evidence had closed, but prior to giving the jury instructions, the trial

court heard arguments in support of Knapic’s objection to the insurance instruction. Knapic

argued that “the word ‘insurance’ ha[d] [not] even been uttered one time in the presence of the

jury * * * [so it] is not even an issue in the case.” The trial court overruled the objection,

explaining that the instruction is “in common usage in this courthouse” and is based on “judges’

experience in talking to jurors after verdicts” and in handling “questions coming from the jury.”

Knapic now argues that the trial court’s jury instruction “effectively introduced extrajudicial

evidence of insurance into the proceeding.”

       {¶ 25} In support of this assertion, Knapic cites 4262 Robbins Ave. Restaurant Co. v.

Slanco (Nov. 22, 1991), 11th Dist. No. 89-T-4274, 1991 WL 244648. In Slanco, however, the

judge summarized for the jury the testimony of two absent witnesses, causing the Eleventh

District Court of Appeals to reverse because the jury likely placed “additional emphasis” on the

facts stated from the bench. Id. at *7. This case is not similar to Slanco, because the trial court

in this case did not provide or restate any facts to the jury. The jury instruction quoted above
                                                13


provides guidance about what the jury may consider (i.e., the evidence) versus what it must not

consider (i.e., speculation about issues not raised by the evidence). The trial court’s instruction

did not introduce any evidence to the jury.

       {¶ 26} Knapic also argues that the instruction was improper because “[i]njecting the

possibility of liability insurance” into a personal-injury action is so inherently prejudicial as to

require reversal. In support of this proposition, he cites cases analyzing the effect of improper

testimony regarding liability insurance on juries. In this case, however, there was no improper

testimony regarding insurance. Knapic also cites Stehura v. Short (1974), 39 Ohio App.2d 68,

70, for the proposition that Ohio courts zealously guard jurors’ ears from statements tending to

show that the defendant in a negligence action carried liability insurance. In Stehura, after the

plaintiff’s lawyer asked questions during voir dire regarding whether any prospective jurors were

connected with insurance companies, the defendant’s lawyer responded by telling the jury that

“no other person, firm or corporation [is] involved in this case.” Id. at 72. The trial court

refused to give a requested curative instruction. The Eighth District Court of Appeals reversed

because it “would be legally intolerable” to allow the defendant to convey the impression to the

jury that his client was not insured, even if he avoids using the word “insurance.” Id. This is

because “[a] trial should be heard and determined by a jury of persons completely unbiased and

uninfluenced by extrinsic considerations.” Id. at 70, citing Peart v. Jones (1953), 159 Ohio St.

137, 140.

       {¶ 27} What Knapic appears to believe is that the trial court caused prejudicial error by

saying the word “insurance” to the jury when there had been no evidence taken on the issue

whether either party had any type of insurance that could impact any verdict the jury may render

in the case. This court is not aware of any authority for the proposition that the word “insurance”
                                                 14


may not be uttered in front of a jury in a medical-malpractice case, and Knapic has not cited any.

Evid.R. 411 provides that “[e]vidence that a person was or was not insured against liability is not

admissible upon the issue whether the person acted negligently or otherwise wrongfully.” The

rule also provides that it “does not require the exclusion of evidence of insurance against liability

when offered for another purpose, such as proof of agency, ownership or control, if controverted,

or bias or prejudice of a witness.” Evid.R. 411. Thus, the word “insurance” and even the words

“liability insurance” are admissible under certain circumstances in a negligence case. When, as

in this case, evidence of insurance is not at issue in a negligence case, the Ohio State Bar

Association’s Jury Instructions Committee recommends the use of a jury instruction quite similar

to the one given by the trial court in this case. Ohio State Bar Association Jury Instruction II. A.

Insurance in Evidence. See the appendix attached to this opinion.

       {¶ 28} The jury instruction did not imply that Knapic had liability insurance, but

emphasized quite clearly that the jury must not speculate regarding whether he did have such

insurance because no evidence had been heard on that issue.             This instruction is not the

substantive type that gives the jury the law regarding the impact of certain evidence thatthey

have heard on the issues they must determine. On the contrary, this instruction is similar to those

given by the trial court in this case that explained the jury’s duties under the law. For instance,

the trial court instructed the jurors that they had to accept the instructions and apply the law as it

was given to them; that the evidence they were to consider did not include the lawyers’ opening

statements and closing arguments; and that they must not consider as evidence any suggestion

included in a question that was not answered or contained in a statement ordered stricken from

the record.
                                                 15


       {¶ 29} The court instructed the jury that it must “decide the issues in this case based

upon the evidence presented * * *, not upon any considerations concerning insurance.” Thus,

the court emphasized the fact that there had been no evidence regarding insurance admitted at

trial and they must remain uninfluenced by extrinsic considerations. The court warned the jury

not to make any assumptions regarding whether either party carried insurance and to “resolve the

issues * * * based solely on the evidence * * * and the law * * * [without] * * * add[ing] to or

subtract[ing] from any award based on whether either party has or does not have insurance.”

Seventeen years ago, the Supreme Court pointed out, “It is naïve to believe that today’s jurors,

bombarded for years with information about health care insurance, do not already assume in a

malpractice case that the defendant doctor is covered by insurance.” Ede v. Atrium S. OB-GYN

Inc. (1994), 71 Ohio St.3d 124, 127. Because courts realize that jurors will be tempted to

inappropriately speculate regarding the impact of insurance, it is not improper to include an

instruction for the jurors that there was no evidence taken on that issue, and therefore, they must

not allow speculation about that issue to enter their discussions.

       {¶ 30} The court’s instruction in this case did not imply that the defendant carried

liability insurance, nor did it imply that he did not carry such insurance. See Stehura v. Short

(1974), 39 Ohio App. 2d 68, 70. The instruction simply warned jurors in a medical-malpractice

case not to assume, as courts have recognized that today’s jurors tend to do, that the defendant

doctor or the plaintiff carried any kind of insurance, or to allow such improper assumptions to

affect the verdict. See Ede v. Atrium S. OB-GYN Inc. (1994), 71 Ohio St.3d 124, 127. The

instruction conveyed an accurate statement of the jury’s duty under the law and was neither

ambiguous nor misleading. Knapic’s third assignment of error is overruled.
                                                              16


                                                     CONCLUSION

         {¶ 31} Knapic’s first assignment of error is overruled because the trial court did not

violate R.C. 2317.43.            The statute was intended to protect pure expressions of apology,

sympathy, commiseration, condolence, compassion, or a general sense of benevolence, without

excluding from trial a medical professional’s admission of fault for a claimed injury. His second

assignment of error is overruled because the trial court exercised proper discretion under Evid.R.

403(A) in regard to the medical examiner’s testimony and the single autopsy photograph

admitted at trial. His third assignment of error is overruled because the contested jury instruction

was not improper. The judgment of the Summit County Common Pleas Court is affirmed.

                                                                                                     Judgment affirmed.



         BELFANCE, P.J., and MOORE, J., concur.


                                                 __________________

                                                        Appendix


OSBA Jury Instructions                                             It is a common concern among jurors as to the existence or

II. TORT LAW                                                       non-existence of insurance. Some jurors may wish to know

A. GENERAL TORT LAW                                                whether the plaintiff had insurance that paid any of her

INSURANCE IN EVIDENCE                                              medical bills, or whether the plaintiff had to pay those bills

OPTION 1                                                           "out of her own pocket."

You are not to consider or discuss whether either party has        Some jurors may wish to know if the defendant has

or had any kind of insurance. You are to decide the issues         insurance that will pay any verdict the jurors may award to

in this case based upon the evidence presented to you, not         the plaintiff, or whether the defendant will have to pay such

upon any considerations concerning insurance.                      an award "out of her own pocket."

OPTION 2                                                           In your deliberations, you are not to consider or discuss the

                                                                   issue of whether either party has or had any kind of
                                                                 17

insurance. You are to decide the issues in this case based            that I have provided . In no event may you add to or

upon the evidence presented to you, not upon any                      subtract from any award based on whether either party has

considerations concerning insurance.                                  or does not have insurance.

Any presumption that a party has or does not have                     Copyright    -   Ohio   State   Bar   Association   Jury

insurance is, first of all, not relevant, and secondly, may be        Instructions Committee instructions are prepared by

wrong.                                                                the OSBA Jury Instructions Committee independent of

You are to resolve all of the issues presented to you based           the Ohio Judicial Conference Ohio Jury Instructions

solely upon the evidence that I have admitted and the law             Committee.
