ESTATE OF JOHNSON ET AL., APPELLEES, v. RANDALL SMITH, INC., ET AL., APPELLANTS.
No. 2012-0014
Supreme Court of Ohio
April 23, 2013
135 Ohio St.3d 440, 2013-Ohio-1507
LANZINGER, J.
Submitted February 5, 2013
{¶1} In this case, we confront the proper application of
{¶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
{¶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 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
{¶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
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.
{¶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
{¶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 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
{¶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
(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.
(Emphasis added.)
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
{¶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
{¶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,
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
{¶20}
{¶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.
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
{¶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
III. Conclusion
{¶24} Dr. Smith‘s statement was properly excluded pursuant to
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.
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 Medical Association, and Ohio Osteopathic Association.