Stewart v. Vivian (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Stewart v. Vivian, Slip Opinion No. 2017-Ohio-7526.]

NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.

SLIP OPINION NO. 2017-OHIO-7526
STEWART, APPELLANT, v. VIVIAN, APPELLEE, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Stewart v. Vivian, Slip Opinion No. 2017-Ohio-7526.]
Evidence—R.C. 2317.43—A “statement[] * * * expressing apology” for purposes
of R.C. 2317.43(A) is a statement that expresses a feeling of regret for an
unanticipated outcome of the patient’s medical care and may include an
acknowledgment that patient’s medical care fell below standard of care—
Court of appeals’ judgment affirming trial court’s exclusion of physician’s
statements to patient’s family affirmed on different grounds.
(No. 2016-1013—Submitted April 6, 2017—Decided September 12, 2017.)
CERTIFIED by the Court of Appeals for Clermont County,
No. CA2015-05-039, 2016-Ohio-2892.
_______________________
KENNEDY, J.
{¶ 1} This case was certified to this court by the Twelfth District Court of
Appeals after it determined that its judgment conflicted with a judgment of the
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Ninth District Courts of Appeals. We determined that a conflict exists and ordered
the parties to brief the following question:

“[Are] a health care provider’s statements of fault or statements
admitting liability made during the course of apologizing or
commiserating with a patient or the patient’s family * * * prohibited
from admission [into] evidence in a civil action under Ohio’s
apology statute, R.C. 2317.43?”

146 Ohio St.3d 1501, 2016-Ohio-5792, 58 N.E.3d 1173, quoting the court of
appeals’ July 7, 2016 entry.
{¶ 2} We hold that for purposes of R.C. 2317.43(A), a “statement[] * * *
expressing apology” is a statement 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.
{¶ 3} We therefore answer the certified question in the affirmative and
affirm the judgment of the Twelfth District Court of Appeals.
FACTS
{¶ 4} In the early evening of February 19, 2010, Michelle Stewart attempted
suicide. She was transported to the emergency department of Mt. Orab
MediCenter. Around midnight, she was transferred to the psychiatric unit at Mercy
Hospital Clermont. Appellee, Rodney E. Vivian, M.D., was the admitting
physician.
{¶ 5} Leslie Wiggs, a registered nurse, conducted an initial assessment of
Michelle upon admission to the psychiatric unit. After completing the assessment,
Wiggs conferred with Dr. Vivian.

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{¶ 6} After this discussion, Dr. Vivian ordered that a staff member of the
psychiatric unit visually observe Michelle every 15 minutes. This order remained
unchanged during her stay in the psychiatric unit.
{¶ 7} At approximately 6:00 p.m. the next day, Michelle’s husband,
appellant, Dennis Stewart, arrived at the psychiatric unit to visit her. Upon entering
her room, he found her unconscious as a result of hanging. Thereafter, she was
transferred to the intensive-care unit (“ICU”) and placed on life support.
{¶ 8} Two days later, Dr. Vivian went to Michelle’s ICU room to speak
with her family. After Dr. Vivian briefly spoke to several family members in the
room, one of them asked him to leave, which he did.
{¶ 9} On February 23, 2010, a neurologist informed Dennis that
neurological testing indicated that Michelle would not recover. The following day,
Dennis directed that life support be discontinued. A couple of hours later, Michelle
died.
PROCEDURAL HISTORY
Trial-Court Proceedings
{¶ 10} On February 17, 2011, Dennis, individually and as administrator of
Michelle’s estate, filed suit against Dr. Vivian and Mercy Hospital Clermont.
Dennis asserted claims of medical malpractice, loss of spousal consortium,
wrongful death, and loss of chance against Dr. Vivian. He also asserted several
claims against Mercy.
{¶ 11} In January 2013, the claims against Mercy were dismissed after
Dennis and Mercy reached a settlement. The action against Dr. Vivian proceeded,
and Dr. Vivian filed motions in limine to prohibit the admission of certain evidence
at trial.
{¶ 12} One of Dr. Vivian’s motions in limine sought to exclude statements
he made to Michelle’s family in her ICU room. Dr. Vivian argued that the
statements were inadmissible pursuant to R.C. 2317.43, also known as the apology

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statute, because the statements had been “intended to express commiseration,
condolence, or sympathy.” In response, Dennis argued that Dr. Vivian’s statements
were admissible because they were not “pure expression[s] of apology, sympathy,
commiseration, condolence, compassion, or a general sense of benevolence.”
{¶ 13} At a hearing held on Dr. Vivian’s motion in limine, the trial court
heard testimony regarding Dr. Vivian’s visit to Michelle’s ICU room from Stacey
Sackenheim (Michelle’s sister), Dennis, and Dr. Vivian. Each offered a different
version of what Dr. Vivian had said before he was asked to leave the room.1
{¶ 14} Sackenheim testified:

Dr. Vivian just walked in through the door * * * and walked over
to—toward the end of Michelle’s bed, and kind of stood for a
moment and then just said, so what do you think happened here?
And I believe Dennis responded and ex—and said, well,
obviously she tried to kill herself. And [Dr. Vivian] said, yeah, she
said she was going to do that. She told me she would keep trying.

{¶ 15} Dennis recounted:

Dr. Vivian walked in. I kind of tried to ignore him basically.
Kept my focus mostly on Michelle. I do remember him saying a
few things. I don’t remember him asking me anything about how it
happened. I—I just remember him saying that he didn’t know how

1
Dr. Vivian testified: “What I remember is walking in and being at—at bedside and telling the
family I’m sorry this has happened. And what I remember is some—someone was screaming at
me telling me this is my fault, and I said I was sorry, and I left.” However, when questioned
earlier about the ICU visit during his deposition, Dr. Vivian had answered, “I made a statement,
but I don’t remember what I said.” While the trial court did not “think [Dr. Vivian] was lying”
when he testified at the hearing on his motion in limine, it found Dr. Vivian’s deposition
testimony “to be the more credible version.”

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it happened; it was a terrible situation, but she had just told him that
she still wanted to be dead, that she wanted to kill herself * * *.

{¶ 16} The court concluded that there were “significant differences”
between Sackenheim’s and Dennis’s testimony and that “it’s probably impossible
to reconcile” their respective versions. And the court found that Dr. Vivian’s
statements were an “attempt at commiseration” and therefore inadmissible under
the apology statute. Accordingly, the court granted the motion in limine and
excluded Dr. Vivian’s statements.
{¶ 17} The matter proceeded to trial. The jury returned a verdict in favor
of Dr. Vivian, concluding that he was not negligent in his assessment, care, or
treatment of Michelle.
Appellate Proceedings
{¶ 18} Dennis timely appealed to the Twelfth District Court of Appeals,
raising, among other issues, the trial court’s exclusion of Dr. Vivian’s statements
in Michelle’s ICU room. The appellate court determined that R.C. 2317.43 is
ambiguous because according to the term’s dictionary definition, “apology” “may
or may not include an admission of fault.” 2016-Ohio-2892, 64 N.E.3d 606, ¶ 47.
Therefore, the court proceeded to consider the statute’s legislative history, and it
concluded that the General Assembly’s intent was to protect all statements of
apology—including those admitting fault—under R.C. 2317.43(A). Id. at ¶ 47, 50.
Accordingly, the Twelfth District concluded that Dr. Vivian’s statements were
correctly excluded and affirmed the trial court’s ruling. Id.
The Conflict Case
{¶ 19} In Davis v. Wooster Orthopaedics & Sports Medicine, Inc., 193 Ohio
App.3d 581, 2011-Ohio-3199, 952 N.E.2d 1216 (9th Dist.), the Ninth District
determined that R.C. 2317.43(A) protects from admission “pure expressions of
apology, sympathy, commiseration, condolence, compassion, or a general sense of

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benevolence, but not admissions of fault.” Id. at ¶ 13. In reaching this conclusion,
the Ninth District reasoned that “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.’ ” Id. at ¶ 10, quoting
Schaaf v. Kaufman, 850 A.2d 655, 664 (Pa.Super.Ct.2004). Nevertheless,
considering “apology” in the context of the other sentiments listed in R.C.
2317.43(A), the court determined that it was not the intent of the General Assembly
to protect statements of fault from admission as evidence. Id. The other sentiments
listed, the court reasoned, “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.” Id.
{¶ 20} The Ninth District then examined the legislative history of R.C.
2317.43 and noted that when the apology-statute bill was introduced in the General
Assembly, “the ‘Bill Summary’ indicated that it would ‘[p]rohibit the use of a
defendant’s statement of sympathy as evidence in a medical liability action.’ ” Id.
at ¶ 11, quoting Legislative Service Commission Analysis of Sub.H.B. No. 215, as
reported by H. Insurance (2004). The court observed that the bill synopsis
explained that “ ‘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.’ ” Id., quoting
Legislative Service Commission Analysis of Sub.H.B. No. 215. The court reasoned
that “[t]he 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.’ ” Id. at ¶ 12. The court further
reasoned that if the legislative intent had been to prohibit the admission of all
statements of fault by medical professionals, the statute could have prohibited the

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admission of “all ‘admissions of liability’ or ‘statements against interest’ ” instead
of limiting protected statements to those “ ‘expressing apology, sympathy,
commiseration, condolence, compassion, or a general sense of benevolence.’ ” Id.,
quoting R.C. 2317.43(A).
ANALYSIS
The Apology Statute—R.C. 2317.43
{¶ 21} Ohio’s apology statute, R.C. 2317.43, provides:

In any civil action brought by an alleged victim of an
unanticipated outcome of medical care * * *, 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 * * * 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).
The Apology Statute Is Unambiguous
{¶ 22} The Twelfth and Ninth District Courts of Appeals each concluded
that R.C. 2317.43(A) is ambiguous. We disagree.
{¶ 23} The interpretation of a statute is a question of law that we review de
novo. State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9.
A court’s main objective is to determine and give effect to the legislative intent.

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State ex rel. Solomon v. Police & Firemen’s Disability & Pension Fund Bd. of
Trustees, 72 Ohio St.3d 62, 65, 647 N.E.2d 486 (1995).
{¶ 24} The intent of the General Assembly must be determined primarily
from the language of the statute itself. Stewart v. Trumbull Cty. Bd. of Elections,
34 Ohio St.2d 129, 130, 296 N.E.2d 676 (1973). “When the statutory language is
plain and unambiguous, and conveys a clear and definite meaning, we must rely on
what the General Assembly has said.” Jones v. Action Coupling & Equip., Inc., 98
Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, citing Symmes Twp. Bd.
of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000).
{¶ 25} “Where a statute defines terms used therein, such definition controls
in the application of the statute * * *.” Good Samaritan Hosp. of Dayton v.
Porterfield, 29 Ohio St.2d 25, 29, 278 N.E.2d 26 (1972), citing Terteling Bros., Inc.
v. Glander, 151 Ohio St. 236, 85 N.E.2d 379 (1949), and Woman’s Internatl.
Bowling Congress, Inc. v. Porterfield, 25 Ohio St.2d 271, 267 N.E.2d 781 (1971).
Terms that are undefined in a statute are accorded their common, everyday
meaning. R.C. 1.42.
{¶ 26} The General Assembly did not define the term “apology” for
purposes of R.C. 2317.43(A). Therefore, we first consider the dictionary definition
of the term.
{¶ 27} “Apology” is ordinarily defined as

1: something said or written in defense or justification of what
appears to others to be wrong or of what may be liable to
disapprobation * * * 2: an attempt to justify or excuse * * * 3: an
acknowledgment intended as an atonement for some improper or
injurious remark or act: an admission to another of a wrong or
discourtesy done him accompanied by an expression of regret * * *.

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Webster’s Third New International Dictionary 101 (2002).2
{¶ 28} The first and second of the above-quoted meanings of “apology” are
not relevant to our resolution of the certified-conflict issue, which concerns only
statements of fault and statements admitting liability. See State v. Chappell, 127
Ohio St.3d 376, 2010-Ohio-5991, 939 N.E.2d 1234, ¶ 18 (applying the two most
relevant definitions of “criminally” in interpreting R.C. 2923.24(A)). When the
third meaning of “apology” is applied to the word as it is used in R.C. 2317.43(A),
the statutory language is susceptible of only one reasonable interpretation. Under
this plain and ordinary meaning of “apology,” for purposes of R.C. 2317.43(A), a
“statement[] * * * expressing apology” is a statement 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.
{¶ 29} Appellant, relying on Davis, 193 Ohio App.3d 581, 2011-Ohio-
3199, 952 N.E.2d 1216, argues that only “pure” expressions of apology are
protected from admission as evidence in a civil action. While the Ninth District did
determine that only “pure expressions of apology”—“not admissions of fault”—
were protected, id. at ¶ 13, the General Assembly did not qualify the term “apology”
with the word “pure” or place any limitation on the meaning of the term “apology”
by specifically defining that term. “Unambiguous statutes are to be applied
according to the plain meaning of the words used, and courts are not free to * * *
insert other words.” (Citation omitted.) State ex rel. Burrows v. Indus. Comm., 78
Ohio St.3d 78, 81, 676 N.E.2d 519 (1997).
{¶ 30} As R.C. 2317.43(A) is unambiguous, it “is to be applied, not
interpreted.” Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944), paragraph

2
A fourth common meaning of “apology” is “something that serves as an excuse for the absence
of something: a poor specimen or substitute.” Webster’s Third New International Dictionary at
101. Because “apology” in this sense does not refer to a statement, it is obviously not the meaning
intended by the General Assembly in the apology statute.

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five of the syllabus. Accordingly, “ ‘inquiry into legislative intent, legislative
history, public policy, the consequences of an interpretation, or any other factors
identified in R.C. 1.49 is inappropriate.’ ” Jacobson v. Kaforey, 149 Ohio St.3d
398, 2016-Ohio-8434, 75 N.E.3d 203, ¶ 8, quoting Dunbar v. State, 136 Ohio St.3d
181, 2013-Ohio-2163, 992 N.E.2d 1111, ¶ 16. “We ‘do not have the authority’ to
dig deeper than the plain meaning of an unambiguous statute ‘under the guise of
either statutory interpretation or liberal construction.’ ” Id., quoting Morgan v.
Adult Parole Auth., 68 Ohio St.3d 344, 347, 626 N.E.2d 939 (1994).
CONCLUSION
{¶ 31} We hold that R.C. 2317.43(A) is unambiguous. Applying the plain
and ordinary meaning of the term “apology,” for purposes of R.C. 2317.43(A), a
“statement[] * * * expressing apology” is a statement 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.
{¶ 32} We therefore answer the certified question in the affirmative and
affirm, albeit on different grounds, the judgment of the Twelfth District Court of
Appeals.
Judgment affirmed.
O’DONNELL, FRENCH, FISCHER, and DEWINE, JJ., concur.
O’CONNOR, C.J., concurs in part and dissents in part, with an opinion joined
by O’NEILL, J.
_________________
O’CONNOR, C.J., concurring in part and dissenting in part.
{¶ 33} I concur in the majority’s holding that a “statement expressing
apology” pursuant to R.C. 2317.43(A) 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.”
Majority opinion at ¶ 2. But I do not believe that the statements of appellee, Rodney

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Vivian, M.D., at issue in this case are statements expressing apology under the
statute, and I therefore dissent from the majority’s judgment. I would reverse the
judgment of the Twelfth District Court of Appeals, hold that Dr. Vivian’s
statements were not inadmissible under the apology statute, and remand the cause
to the trial court for further proceedings.
{¶ 34} An appellate court may reverse a trial court’s decision not to admit
evidence pursuant to R.C. 2317.43 if it finds an abuse of discretion. Estate of
Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507, 989 N.E.2d
35, ¶ 22. “For an abuse of discretion to have occurred, the trial court must have
taken action that is unreasonable, arbitrary, or unconscionable.” Id. Here, the trial
court found that Dr. Vivian went to Michelle Stewart’s room in the intensive-care
unit (“ICU”) for the purpose of saying, “I’m sorry,” but that “the statement that was
made appears to be a rather ineffective attempt at commiseration.” Acknowledging
that there was limited case law interpreting the statute, the trial court found that Dr.
Vivian’s statements were “covered” under R.C. 2317.43 and therefore
inadmissible.
{¶ 35} The trial court’s application of R.C. 2317.43(A) to the facts here was
unreasonable.
{¶ 36} “A decision is unreasonable if there is no sound reasoning process
that would support that decision.” AAAA Ents., Inc. v. River Place Community
Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). The
statute refers to “any and all statements, affirmations, gestures, or conduct
expressing apology, sympathy, commiseration, condolence, compassion, or a
general sense of benevolence.” (Emphasis added.) R.C. 2317.43(A). And the
majority’s holding describes a statement that “expresses a feeling of regret for an
unanticipated outcome.” Majority opinion at ¶ 2. “Express” means “to represent
in words: state, utter[;] * * * to give or convey a true impression of: display fully
or exactly.” Webster’s Third New International Dictionary 803 (2002). Contrary

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to the majority’s endorsement of the trial court’s conclusion, the statute does not
cover statements merely intending or attempting to express commiseration or a
feeling of regret, or ones that do so only obliquely.
{¶ 37} At the hearing on Dr. Vivian’s motion in limine, the trial court heard
testimony from three different witnesses about the statements that Dr. Vivian made
when he visited Michelle’s ICU room.
{¶ 38} Michelle’s sister testified that Dr. Vivian walked into Michelle’s
room and asked, “[S]o what do you think happened here?” She testified that
Michelle’s husband responded, “[W]ell, obviously she tried to kill herself,” to
which Dr. Vivian replied, “[Y]eah, she said she was going to do that. She told me
she would keep trying.”
{¶ 39} Michelle’s husband testified: “I just remember [Dr. Vivian] saying
that he didn’t know how it happened; it was a terrible situation, but she had just
told him that she still wanted to be dead, that she wanted to kill herself * * *.”
{¶ 40} Dr. Vivian also testified at the hearing, but that testimony was
different from his deposition testimony. The trial court found that the more credible
testimony from Dr. Vivian was that he did not remember what he said to Michelle’s
family.
{¶ 41} Applying the majority’s interpretation of a “statement expressing
apology,” I would hold that Dr. Vivian’s statements, as established by the evidence,
expressed neither apology nor “sympathy, commiseration, condolence,
compassion, or a general sense of benevolence,” as described in the statute.
According to Michelle’s sister, Dr. Vivian asked a question then offered a summary
of statements that Michelle had made to him. Michelle’s husband also testified that
Dr. Vivian summarized Michelle’s prior statements and added a description of his
own state of mind (that he did not know how Michelle’s injury had happened but
that he recognized that it was a terrible situation).

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{¶ 42} Dr. Vivian’s statements were not an apology nor did they express
regret or a type of shared sadness associated with sympathy or commiseration. Dr.
Vivian’s recitation of Michelle’s prior statements certainly does not fall within the
statute. “What do you think happened here?” is a question, not an expression of
Dr. Vivian’s regret or sympathy. Dr. Vivian’s statement that he “didn’t know how
it happened” similarly is not an apology. Although it could be an expression of
shock, it was also not sympathetic, particularly given the family’s state of mind as
exemplified by Michelle’s husband’s answer, “[O]bviously she tried to kill
herself.” Describing the situation as “terrible” comes closest to expressing some
kind of commiseration or sympathy. However, the context of Dr. Vivian’s “terrible
situation” statement—immediately following his statement that he did not know
what had happened—does not make clear that he was sympathizing with Michelle’s
family. At the very best, he implied sympathy but did not “display [it] fully or
exactly.”
{¶ 43} Although I do not believe that the statute must be rigidly construed
to cover only those statements including the words “I apologize” or “I sympathize,”
there must be a limit based on the actual content of the statements and not the
intention of the speaker. If not, a health-care provider could render any statement
inadmissible simply by affirming a subjective intent to apologize or to console.
Wherever we draw the line on what constitutes a “statement expressing apology,”
it should not encompass vague statements that, at best, might constitute expressions
of shock and surprise but that have no indicia of apology, commiseration, or regret.
{¶ 44} Thus, although I concur in the majority’s holding describing a
“statement of apology” according to the statute and would also answer the conflict
question in the affirmative, I respectfully dissent from the majority’s application of
the law to the facts of this case. Accordingly, I would reverse the judgment of the
Twelfth District Court of Appeals and would remand the case to the Clermont
County Court of Common Pleas for further proceedings.

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O’NEILL, J., concurs in the foregoing opinion.
_________________
Stagnaro, Saba & Patterson Co., L.P.A., Peter A. Saba, Jeffrey M. Ney, and
Sharon J. Sobers, for appellant, individually and as the administrator of the estate
of Michelle Stewart.
Arnzen, Storm & Turner, P.S.C., and Aaron A. VanderLaan, for appellee.
Bricker & Eckler, L.L.P., Anne Marie Sferra, and Noorjahan Rahman,
urging affirmance for amici curiae Ohio State Medical Association, Ohio Hospital
Association, and Ohio Osteopathic Association.
Tucker Ellis, L.L.P., Irene C. Keyse-Walker, and Susan M. Audey, urging
affirmance for amicus curiae Academy of Medicine of Cleveland and Northern
Ohio.
_________________

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