REPRESENTATIVES Seitz, Schmidt, Kearns, Webster, Raga, Brinkman, DeWine, Setzer, Husted, Faber, Gilb, Fessler, Hoops, Schaffer, Lendrum, Flowers, Olman, Sullivan, Ogg, G. Smith, Trakas, Peterson, Clancy, Callender, Roman, Wolpert, Latta, Womer Benjamin, Calvert, Carey, Kilbane, Reidelbach, Aslanides, Widowfield, Niehaus, Williams, Blasdel, Buehrer, Stapleton, Manning, Damschroder, Evans, Cates, Hughes, Grendell, Young

To amend sections 2305.11, 2315.21, 2711.23,

1

2711.24, 3721.02, and 3721.17 and to enact

2

section 5111.411 of the Revised Code relative to

3

the results of a home inspection or nursing

4

facility survey, liability of a residential care

5

facility or a home for punitive damages, and

6

expansion of the definition of "medical claim" in

7

the statute of limitations.

8

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2305.11, 2315.21, 2711.23, 2711.24,	9
3721.02, and 3721.17 be amended and section 5111.411 of the	10
Revised Code be enacted to read as follows:	11

Sec. 2305.11.  (A) An action for libel, slander, malicious	12
prosecution, or false imprisonment, an action for malpractice	13
other than an action upon a medical, dental, optometric, or	14
chiropractic claim, or an action upon a statute for a penalty or	15
forfeiture shall be commenced within one year after the cause of	16
action accrued, provided that an action by an employee for the	17
payment of unpaid minimum wages, unpaid overtime compensation, or	18
liquidated damages by reason of the nonpayment of minimum wages or	19
overtime compensation shall be commenced within two years after	20
the cause of action accrued.	21

(B)(1) Subject to division (B)(2) of this section, an action	22
upon a medical, dental, optometric, or chiropractic claim shall be	23
commenced within one year after the cause of action accrued,	24
except that, if prior to the expiration of that one-year period, a	25
claimant who allegedly possesses a medical, dental, optometric, or	26
chiropractic claim gives to the person who is the subject of that	27
claim written notice that the claimant is considering bringing an	28
action upon that claim, that action may be commenced against the	29
person notified at any time within one hundred eighty days after	30
the notice is so given.	31

(2) Except as to persons within the age of minority or of	32
unsound mind, as provided by section 2305.16 of the Revised Code:	33

(a) In no event shall any action upon a medical, dental,	34
optometric, or chiropractic claim be commenced more than four	35
years after the occurrence of the act or omission constituting the	36
alleged basis of the medical, dental, optometric, or chiropractic	37
claim.	38

(b) If an action upon a medical, dental, optometric, or	39
chiropractic claim is not commenced within four years after the	40
occurrence of the act or omission constituting the alleged basis	41
of the medical, dental, optometric, or chiropractic claim, then,	42
notwithstanding the time when the action is determined to accrue	43
under division (B)(1) of this section, any action upon that claim	44
is barred.	45

(C) A civil action for unlawful abortion pursuant to section	46
2919.12 of the Revised Code, a civil action authorized by division	47
(H) of section 2317.56 of the Revised Code, a civil action	48
pursuant to division (B)(1) or (2) of section 2307.51 of the	49
Revised Code for performing a dilation and extraction procedure or	50
attempting to perform a dilation and extraction procedure in	51
violation of section 2919.15 of the Revised Code, and a civil	52
action pursuant to division (B)(1) or (2) of section 2307.52 of	53
the Revised Code for terminating or attempting to terminate a	54
human pregnancy after viability in violation of division (A) or	55
(B) of section 2919.17 of the Revised Code shall be commenced	56
within one year after the performance or inducement of the	57
abortion, within one year after the attempt to perform or induce	58
the abortion in violation of division (A) or (B) of section	59
2919.17 of the Revised Code, within one year after the performance	60
of the dilation and extraction procedure, or, in the case of a	61
civil action pursuant to division (B)(2) of section 2307.51 of the	62
Revised Code, within one year after the attempt to perform the	63
dilation and extraction procedure.	64

(D) As used in this section:

65

(1) "Hospital" includes any person, corporation, association,	66
board, or authority that is responsible for the operation of any	67
hospital licensed or registered in the state, including, but not	68
limited to, those whichthat are owned or operated by the state,	69
political subdivisions, any person, any corporation, or any	70
combination thereof. "Hospital" also includes any person,	71
corporation, association, board, entity, or authority that is	72
responsible for the operation of any clinic that employs a	73
full-time staff of physicians practicing in more than one	74
recognized medical specialty and rendering advice, diagnosis,	75
care, and treatment to individuals. "Hospital" does not include	76
any hospital operated by the government of the United States or	77
any of its branches.	78

(2) "Physician" means a person who is licensed to practice	79
medicine and surgery or osteopathic medicine and surgery by the	80
state medical board or a person who otherwise is authorized to	81
practice medicine and surgery or osteopathic medicine and surgery	82
in this state.	83

(3) "Medical claim" means any claim that is asserted in any	84
civil action against a physician, podiatrist, or hospital, home,	85
or residential facility, against any employee or agent of a	86
physician, podiatrist, or hospital, home, or residential facility,	87
or against a registered nurse or physical therapist, and that	88
arises out of the medical diagnosis, care, or treatment of any	89
person. "Medical claim" includes derivativethe following:	90

(a) Derivative claims for relief that arise from the medical	91
diagnosis, care, or treatment of a person;	92

(b) Claims resulting from acts or omissions in providing	93
health care or from the hiring, training, supervision, retention,	94
or termination of health caregivers;	95

(c) Claims brought under section 3721.17 of the Revised	96
Code.	97

(4) "Podiatrist" means any person who is licensed to practice	98
podiatric medicine and surgery by the state medical board.	99

(5) "Dentist" means any person who is licensed to practice	100
dentistry by the state dental board.	101

(6) "Dental claim" means any claim that is asserted in any	102
civil action against a dentist, or against any employee or agent	103
of a dentist, and that arises out of a dental operation or the	104
dental diagnosis, care, or treatment of any person. "Dental claim"	105
includes derivative claims for relief that arise from a dental	106
operation or the dental diagnosis, care, or treatment of a person.	107

(7) "Derivative claims for relief" include, but are not	108
limited to, claims of a parent, guardian, custodian, or spouse of	109
an individual who was the subject of any medical diagnosis, care,	110
or treatment, dental diagnosis, care, or treatment, dental	111
operation, optometric diagnosis, care, or treatment, or	112
chiropractic diagnosis, care, or treatment, that arise from that	113
diagnosis, care, treatment, or operation, and that seek the	114
recovery of damages for any of the following:	115

(a) Loss of society, consortium, companionship, care,	116
assistance, attention, protection, advice, guidance, counsel,	117
instruction, training, or education, or any other intangible loss	118
that was sustained by the parent, guardian, custodian, or spouse;	119

(b) Expenditures of the parent, guardian, custodian, or	120
spouse for medical, dental, optometric, or chiropractic care or	121
treatment, for rehabilitation services, or for other care,	122
treatment, services, products, or accommodations provided to the	123
individual who was the subject of the medical diagnosis, care, or	124
treatment, the dental diagnosis, care, or treatment, the dental	125
operation, the optometric diagnosis, care, or treatment, or the	126
chiropractic diagnosis, care, or treatment.	127

(8) "Registered nurse" means any person who is licensed to	128
practice nursing as a registered nurse by the state board of	129
nursing.	130

(9) "Chiropractic claim" means any claim that is asserted in	131
any civil action against a chiropractor, or against any employee	132
or agent of a chiropractor, and that arises out of the	133
chiropractic diagnosis, care, or treatment of any person.	134
"Chiropractic claim" includes derivative claims for relief that	135
arise from the chiropractic diagnosis, care, or treatment of a	136
person.	137

(10) "Chiropractor" means any person who is licensed to	138
practice chiropractic by the chiropractic examining board.	139

(11) "Optometric claim" means any claim that is asserted in	140
any civil action against an optometrist, or against any employee	141
or agent of an optometrist, and that arises out of the optometric	142
diagnosis, care, or treatment of any person. "Optometric claim"	143
includes derivative claims for relief that arise from the	144
optometric diagnosis, care, or treatment of a person.	145

(12) "Optometrist" means any person licensed to practice	146
optometry by the state board of optometry.	147

(13) "Physical therapist" means any person who is licensed to	148
practice physical therapy under Chapter 4755. of the Revised Code.	149

(14) "Home" has the same meaning as in section 3721.10 of	150
the Revised Code.	151

(15) "Residential facility" means a facility licensed under	152
section 5123.19 of the Revised Code.	153

Sec. 2315.21.  (A) As used in this section:

154

(1) "Tort action" means a civil action for damages for injury	155
or loss to person or property. "Tort action" includes a product	156
liability claim for damages for injury or loss to person or	157
property that is subject to sections 2307.71 to 2307.80 of the	158
Revised Code, but does not include a civil action for damages for	159
a breach of contract or another agreement between persons.	160

(2) "Trier of fact" means the jury or, in a nonjury action,	161
the court.	162

(3) "Home" has the same meaning as in section 3721.10 of the	163
Revised Code.	164

(B) Subject to division (D) of this section, punitive or	165
exemplary damages are not recoverable from a defendant in question	166
in a tort action unless both of the following apply:	167

(1) The actions or omissions of that defendant demonstrate	168
malice, aggravated or egregious fraud, oppression, or insult, or	169
that defendant as principal or master authorized, participated in,	170
or ratified actions or omissions of an agent or servant that so	171
demonstrate;.	172

(2) The plaintiff in question has adduced proof of actual	173
damages that resulted from actions or omissions as described in	174
division (B)(1) of this section.	175

(C)(1) In a tort action, the trier of fact shall determine	176
the liability of any defendant for punitive or exemplary damages	177
and the amount of those damages.	178

(2) In a tort action, the burden of proof shall be upon a	179
plaintiff in question, by clear and convincing evidence, to	180
establish that the plaintiff is entitled to recover punitive or	181
exemplary damages.	182

(D) This section does not apply to tort actions against the	183
state in the court of claims or to the extent that another section	184
of the Revised Code expressly provides any of the following:	185

(1) Punitive or exemplary damages are recoverable from a	186
defendant in question in a tort action on a basis other than that	187
the actions or omissions of that defendant demonstrate malice,	188
aggravated or egregious fraud, oppression, or insult, or on a	189
basis other than that the defendant in question as principal or	190
master authorized, participated in, or ratified actions or	191
omissions of an agent or servant that so demonstrate;.	192

(2) Punitive or exemplary damages are recoverable from a	193
defendant in question in a tort action irrespective of whether the	194
plaintiff in question has adduced proof of actual damages;.	195

(3) The burden of proof upon a plaintiff in question to	196
recover punitive or exemplary damages from a defendant in question	197
in a tort action is one other than clear and convincing evidence;.	198

(4) Punitive or exemplary damages are not recoverable from a	199
defendant in question in a tort action.	200

(E) When determining the amount of an award of punitive or	201
exemplary damages against either a home or a residential facility	202
licensed under section 5123.19 of the Revised Code, the trier of	203
fact shall consider all of the following:	204

(1) The ability of the home or residential facility to pay	205
the award of punitive or exemplary damages based on the home's or	206
residential facility's assets, income, and net worth;	207

(2) Whether the amount of punitive or exemplary damages is	208
sufficient to deter future tortious conduct;	209

(3) The financial ability of the home or residential	210
facility, both currently and in the future, to provide	211
accommodations, personal care services, and skilled nursing care.	212

Sec. 2711.23. (A) To be valid and enforceable, any	213
arbitration agreements pursuant to sections 2711.01 and 2711.22 of	214
the Revised Code for controversies involving hospital or medical	215
care, diagnosis, or treatment whichthat are entered into prior to	216
rendering such care, diagnosis, or treatment shall include or be	217
subject to the following conditions:	218

(A)(1) The agreement shall provide that medical or hospital	219
care, diagnosis, or treatment will be provided whether or not the	220
patient signs the agreement to arbitrate;.	221

(B)(2) The agreement shall provide that the patient, or the	222
patient's spouse, or the personal representative of histhe	223
patient's estate in the event of the patient's death or	224
incapacity, shall have a right to withdraw the patient's consent	225
to arbitrate histhe patient's claim by notifying the physician or	226
hospital in writing within sixty days after the patient's	227
discharge from the hospital for any claim arising out of	228
hospitalization, or within sixty days after the termination of the	229
physician-patient relationship for the physical condition involved	230
for any claim against a physician. Nothing in this division shall	231
be construed to mean that the spouse of a competent patient can	232
withdraw over the objection of the patient the consent of the	233
patient to arbitrate;.	234

(C)(3) The agreement shall provide that the decision whether	235
or not to sign the agreement is solely a matter for the patient's	236
determination without any influence by the physician or hospital;.	237

(D)(4) The agreement shall, if appropriate, provide, if	238
appropriate, that its terms constitute a waiver of any right to a	239
trial in court, or a waiver of any right to a trial by jury;.	240

(E)(5) The agreement shall provide that the arbitration	241
expenses shall be divided equally between the parties to the	242
agreement;.	243

(F)(6) Any arbitration panel shall consist of three persons,	244
no more than one of whom shall be a physician or the	245
representative of a hospital;.	246

(G)(7) The arbitration agreement shall be separate from any	247
other agreement, consent, or document;.	248

(H)(8) The agreement shall not be submitted to a patient for	249
approval when the patient's condition prevents the patient from	250
making a rational decision whether or not to agree;.	251

(I)(9) Filing of a medical claim, as defined in division (D)	252
of section 2305.11 of the Revised Code, within the sixty days	253
provided for withdrawal of a patient from the arbitration	254
agreement shall be deemed a withdrawal from suchthat agreement;.	255

(J)(10) The agreement shall contain a separately stated	256
notice that clearly informs the patient of histhe patient's	257
rights under division (B)(A)(2) of this section.	258

(B) As used in this section, the terms "hospital":

259

(1) "Hospital" and "physician" shall have the same meanings	260
set forthas in division (D) of section 2305.11 of the Revised	261
Code.	262

(2) "Medical claim" has the same meaning as in division (D)	263
of section 2305.11 of the Revised Code, except that it does not	264
include a claim against a home or residential facility or an	265
employee or agent of a home or residential facility.	266

(3) "Home" has the same meaning as in section 3721.10 of the	267
Revised Code.	268

(4) "Residential facility" means a facility licensed under	269
section 5123.19 of the Revised Code.	270

(C) The provisions of this divisionsection apply to	271
hospitals, doctors of medicine, doctors of osteopathic medicine,	272
and doctors of podiatric medicine.	273

(D) This section does not apply to homes or residential	274
facilities.	275

Sec. 2711.24. (A) To the extent it is in ten-point type and	276
is executed in the following form, an arbitration agreement of the	277
type stated in section 2711.23 of the Revised Code shall be	278
presumed valid and enforceable in the absence of proof by a	279
preponderance of the evidence that the execution of the agreement	280
was induced by fraud, that the patient executed the agreement as a	281
direct result of the willful or negligent disregard by the	282
physician or hospital of the patient's right not to so execute, or	283
that the patient executing the agreement was not able to	284
communicate effectively in spoken and written English or any other	285
language in which the agreement is written:	286

"AGREEMENT TO RESOLVE FUTURE MALPRACTICE

287

CLAIM BY BINDING ARBITRATION

288

In the event of any dispute or controversy arising out of the	289
diagnosis, treatment, or care of the patient by the provider of	290
medical services, the dispute or controversy shall be submitted to	291
binding arbitration.	292

Within fifteen days after a party to this agreement has given	293
written notice to the other of demand for arbitration of saidthat	294
dispute or controversy, the parties to the dispute or controversy	295
shall each appoint an arbitrator and give notice of suchthe	296
appointment to the other. Within a reasonable time after such	297
notices have been given, the two arbitrators so selected shall	298
select a neutral arbitrator and give notice of the selection	299
thereofof a neutral arbitrator to the parties. The arbitrators	300
shall hold a hearing within a reasonable time from the date of	301
notice of selection of the neutral arbitrator.	302

Expenses of the arbitration shall be shared equally by the	303
parties to this agreement.	304

The patient, by signing this agreement, also acknowledges	305
that hethe patient has been informed that:	306

(1) Medical or hospital care, diagnosis, or treatment will	307
be provided whether or not the patient signs the agreement to	308
arbitrate;.	309

(2) The agreement may not even be submitted to a patient for	310
approval when the patient's condition prevents the patient from	311
making a rational decision whether or not to agree;.	312

(3) The decision whether or not to sign the agreement is	313
solely a matter for the patient's determination without any	314
influence by the physician or hospital;.	315

(4) The agreement waives the patient's right to a trial in	316
court for any future malpractice claim hethe patient may have	317
against the physician or hospital;.	318

(5) The patient must be furnished with two copies of this	319
agreement.	320

PATIENT'S RIGHT TO CANCEL

321

HIS AGREEMENT TO ARBITRATE

322

The patient, or the patient's spouse or the personal	323
representative of histhe patient's estate in the event of the	324
patient's death or incapacity, has the right to cancel this	325
agreement to arbitrate by notifying the physician or hospital in	326
writing within sixty days after the patient's discharge from the	327
hospital for any claim against a hospital, or within sixty days	328
after the termination of the physician-patient relationship for	329
the physical condition involved for claims against physicians. The	330
patient, or histhe patient's spouse or representative, as	331
appropriate, may cancel this agreement by merely writing	332
"cancelled" on the face of one of histhe patient's copies of the	333
agreement, signing histhe patient's name under suchthat word,	334
and mailing, by certified mail, return receipt requested, such	335
that copy to the physician or hospital within suchthe sixty-day	336
period.	337

Filing of a medical claim in a court within the sixty days	338
provided for cancellation of the arbitration agreement by the	339
patient will cancel the agreement without any further action by	340
the patient.	341

Date:

342

................................................................

343

Signature of Provider of Medical Services

344

................................................................

345

Signature of Patient"

346

(B) As used in this section the terms "hospital":

347

(1) "Hospital" and "physician" have the same meanings set	348
forthas in division (D) of section 2305.11 of the Revised Code.	349
The	350

(2) "Home" has the same meaning as in section 3721.10 of the	351
Revised Code.	352

(3) "Residential facility" means a facility licensed under	353
section 5123.19 of the Revised Code.	354

(C) The provisions of this divisionsection apply to	355
hospitals, doctors of medicine, doctors of osteopathic medicine,	356
and doctors of podiatric medicine.	357

(D) This section does not apply to homes or residential	358
facilities.	359

Sec. 3721.02. (A) The director of health shall license homes	360
and establish procedures to be followed in inspecting and	361
licensing homes. The director may inspect a home at any time.	362
Each home shall be inspected by the director at least once prior	363
to the issuance of a license and at least once every fifteen	364
months thereafter. The state fire marshal or a township,	365
municipal, or other legally constituted fire department approved	366
by the marshal shall also inspect a home prior to issuance of a	367
license, at least once every fifteen months thereafter, and at any	368
other time requested by the director. A home does not have to be	369
inspected prior to issuance of a license by the director, state	370
fire marshal, or a fire department if ownership of the home is	371
assigned or transferred to a different person and the home was	372
licensed under this chapter immediately prior to the assignment or	373
transfer. The director may enter at any time, for the purposes of	374
investigation, any institution, residence, facility, or other	375
structure whichthat has been reported to the director or that the	376
director has reasonable cause to believe is operating as a nursing	377
home, residential care facility, or home for the aging without a	378
valid license required by section 3721.05 of the Revised Code or,	379
in the case of a county home or district home, is operating	380
despite the revocation of its residential care facility license.	381
The director may delegate the director's authority and duties	382
under this chapter to any division, bureau, agency, or official of	383
the department of health.	384

(B) A single facility may be licensed both as a nursing home	385
pursuant to this chapter and as an adult care facility pursuant to	386
Chapter 3722. of the Revised Code if the director determines that	387
the part or unit to be licensed as a nursing home can be	388
maintained separate and discrete from the part or unit to be	389
licensed as an adult care facility.	390

(C) In determining the number of residents in a home for the	391
purpose of licensing, the director shall consider all the	392
individuals for whom the home provides accommodations as one group	393
unless one of the following is the case:	394

(A)(1) The home is a home for the aging, in which case all	395
the individuals in the part or unit licensed as a nursing home	396
shall be considered as one group, and all the individuals in the	397
part or unit licensed as a rest home shall be considered as	398
another group;.	399

(B)(2) The home is both a nursing home and an adult care	400
facility. In that case, all the individuals in the part or unit	401
licensed as a nursing home shall be considered as one group, and	402
all the individuals in the part or unit licensed as an adult care	403
facility shall be considered as another group.	404

(C)(3) The home maintains, in addition to a nursing home or	405
residential care facility, a separate and discrete part or unit	406
that provides accommodations to individuals who do not require or	407
receive skilled nursing care and do not receive personal care	408
services from the home, in which case the individuals in the	409
separate and discrete part or unit shall not be considered in	410
determining the number of residents in the home if the separate	411
and discrete part or unit is in compliance with the Ohio basic	412
building code established by the board of building standards under	413
Chapters 3781. and 3791. of the Revised Code and the home permits	414
the director, on request, to inspect the separate and discrete	415
part or unit and speak with the individuals residing there, if	416
they consent, to determine whether the separate and discrete part	417
or unit meets the requirements of this division.	418

(D) The director of health shall charge an application fee	419
and an annual renewal licensing and inspection fee of one hundred	420
dollars for each fifty persons or part thereof of a home's	421
licensed capacity. All fees collected by the director for the	422
issuance or renewal of licenses shall be deposited into the state	423
treasury to the credit of the general operations fund created in	424
section 3701.83 of the Revised Code for use only in administering	425
and enforcing this chapter and rules adopted under it.	426

(E) (1) Except as otherwise provided in this section, the	427
results of an inspection or investigation of a home that is	428
conducted under this section, including any statement of	429
deficiencies and all findings and deficiencies cited in the	430
statement on the basis of the inspection or investigation, shall	431
be used solely to determine the home's compliance with this	432
chapter or another chapter of the Revised Code in any action or	433
proceeding other than an action commenced under division (I) of	434
section 3721.17 of the Revised Code. Those results of an	435
inspection or investigation, that statement of deficiencies, and	436
the findings and deficiencies cited in that statement shall not be	437
used in any court or in any action or proceeding that is pending	438
in any court and are not admissible in evidence in any action or	439
proceeding unless that action or proceeding is an appeal of an	440
action by the department of health under this chapter or is an	441
action by any department or agency of the state to enforce this	442
chapter or another chapter of the Revised Code.	443

(2) Nothing in division (E)(1) of this section prohibits the	444
results of an inspection or investigation conducted under this	445
section from being used in a criminal investigation or	446
prosecution.	447

Sec. 3721.17.  (A) Any resident who believes that the	448
resident's rights under sections 3721.10 to 3721.17 of the Revised	449
Code have been violated may file a grievance under procedures	450
adopted pursuant to division (A)(2) of section 3721.12 of the	451
Revised Code.	452

When the grievance committee determines a violation of	453
sections 3721.10 to 3721.17 of the Revised Code has occurred, it	454
shall notify the administrator of the home. If the violation	455
cannot be corrected within ten days, or if ten days have elapsed	456
without correction of the violation, the grievance committee shall	457
refer the matter to the department of health.	458

(B) Any person who believes that a resident's rights under	459
sections 3721.10 to 3721.17 of the Revised Code have been violated	460
may report or cause reports to be made of the information directly	461
to the department of health. No person who files a report is	462
liable for civil damages resulting from the report.	463

(C)(1) Within thirty days of receiving a complaint under	464
this section, the department of health shall investigate any	465
complaint referred to it by a home's grievance committee and any	466
complaint from any source that alleges that the home provided	467
substantially less than adequate care or treatment, or	468
substantially unsafe conditions, or, within seven days of	469
receiving a complaint, refer it to the attorney general, if the	470
attorney general agrees to investigate within thirty days.	471

(2) Within thirty days of receiving a complaint under this	472
section, the department of health may investigate any alleged	473
violation of sections 3721.10 to 3721.17 of the Revised Code, or	474
of rules, policies, or procedures adopted pursuant to those	475
sections, not covered by division (C)(1) of this section, or it	476
may, within seven days of receiving a complaint, refer the	477
complaint to the grievance committee at the home where the alleged	478
violation occurred, or to the attorney general if the attorney	479
general agrees to investigate within thirty days.	480

(D) If, after an investigation, the department of health	481
finds probable cause to believe that a violation of sections	482
3721.10 to 3721.17 of the Revised Code, or of rules, policies, or	483
procedures adopted pursuant to those sections, has occurred at a	484
home that is certified under the medicare or medicaid program, it	485
shall cite one or more findings or deficiencies under sections	486
5111.35 to 5111.62 of the Revised Code. If the home is not so	487
certified, the department shall hold an adjudicative hearing	488
within thirty days under Chapter 119. of the Revised Code.	489

(E) Upon a finding at an adjudicative hearing under division	490
(D) of this section that a violation of sections 3721.10 to	491
3721.17 of the Revised Code, or of rules, policies, or procedures	492
adopted pursuant thereto, has occurred, the department of health	493
shall make an order for compliance, set a reasonable time for	494
compliance, and assess a fine pursuant to division (F) of this	495
section. The fine shall be paid to the general revenue fund only	496
if compliance with the order is not shown to have been made within	497
the reasonable time set in the order. The department of health	498
may issue an order prohibiting the continuation of any violation	499
of sections 3721.10 to 3721.17 of the Revised Code.	500

Findings at the hearings conducted under this section may be	501
appealed pursuant to Chapter 119. of the Revised Code, except that	502
an appeal may be made to the court of common pleas of the county	503
in which the home is located.	504

The department of health shall initiate proceedings in court	505
to collect any fine assessed under this section whichthat is	506
unpaid thirty days after the violator's final appeal is exhausted.	507

(F) Any home found, pursuant to an adjudication hearing	508
under division (D) of this section, to have violated sections	509
3721.10 to 3721.17 of the Revised Code, or rules, policies, or	510
procedures adopted pursuant to those sections may be fined not	511
less than one hundred nor more than five hundred dollars for a	512
first offense. For each subsequent offense, the home may be fined	513
not less than two hundred nor more than one thousand dollars.	514

A violation of sections 3721.10 to 3721.17 of the Revised	515
Code is a separate offense for each day of the violation and for	516
each resident who claims the violation.	517

(G) No home or employee of a home shall retaliate against	518
any person who:	519

(1) Exercises any right set forth in sections 3721.10 to	520
3721.17 of the Revised Code, including, but not limited to, filing	521
a complaint with the home's grievance committee or reporting an	522
alleged violation to the department of health;	523

(2) Appears as a witness in any hearing conducted under this	524
section or section 3721.162 of the Revised Code;	525

(3) Files a civil action alleging a violation of sections	526
3721.10 to 3721.17 of the Revised Code, or notifies a county	527
prosecuting attorney or the attorney general of a possible	528
violation of sections 3721.10 to 3721.17 of the Revised Code.	529

If, under the procedures outlined in this section, a home or	530
its employee is found to have retaliated, the violator may be	531
fined up to one thousand dollars.	532

(H) When legal action is indicated, any evidence of criminal	533
activity found in an investigation under division (C) of this	534
section shall be given to the prosecuting attorney in the county	535
in which the home is located for investigation.	536

(I)(1)(a) Any resident whose rights under sections 3721.10	537
to 3721.17 of the Revised Code are violated has a cause of action	538
against any person or home committing the violation. The action	539
may be commenced by the resident or by the resident's sponsor on	540
behalf of the resident.	541

(b) An action under division (I)(1)(a) of this section may	542
be commenced by the resident or by the resident's legal guardian	543
or other legally authorized representative on behalf of the	544
resident or the resident's estate. If the resident or the	545
resident's legal guardian or other legally authorized	546
representative is unable to commence an action under that division	547
on behalf of the resident, the following persons in the following	548
order of priority have the right to and may commence an action	549
under that division on behalf of the resident or the resident's	550
estate:	551

(i) The resident's spouse;

552

(ii) The resident's parent or adult child;

553

(iii) The resident's guardian if the resident is a minor	554
child;	555

(iv) The resident's brother or sister;

556

(v) The resident's niece, nephew, aunt, or uncle.

557

(c) Notwithstanding any law as to priority of persons	558
entitled to commence an action, if more than one eligible person	559
within the same level of priority seeks to commence an action on	560
behalf of a resident or the resident's estate, the court shall	561
determine, in the best interest of the resident or the resident's	562
estate, the individual to commence the action. A court's	563
determination under this division as to the person to commence an	564
action on behalf of a resident or the resident's estate shall bar	565
another person from commencing the action on behalf of the	566
resident or the resident's estate.	567

(d) The result of an action commenced pursuant to division	568
(I)(1)(a) of this section by a person authorized under division	569
(I)(1)(b) of this section shall bind the resident or the	570
resident's estate that is the subject of the action.	571

(2)(a) The plaintiff in an action filed under division (I)(1)	572
of this section may obtain injunctive relief against the violation	573
of the resident's rights. The plaintiff also may recover	574
compensatory damages based upon a showing, by a preponderance of	575
the evidence, that the violation of the resident's rights resulted	576
from a negligent act or omission of the person or home and that	577
the violation was the proximate cause of the resident's injury,	578
death, or loss to person or property.	579

(b) If compensatory damages are awarded for a violation of	580
the resident's rights, section 2315.21 of the Revised Code, except	581
divisions (E)(1) and (2) of that section, shall apply to an award	582
of punitive or exemplary damages for the violation.	583

(b)(c) The court, in a case in which only injunctive relief	584
is granted, may award to the prevailing party reasonable	585
attorney's fees limited to the work reasonably performed.	586

(3) Division (I)(2)(a)(b) of this section shall be	587
considered to be purely remedial in operation and shall be applied	588
in a remedial manner in any civil action in which this section is	589
relevant, whether the action is pending in court or commenced on	590
or after July 9, 1998.	591

(4) Within thirty days after the filing of a complaint in an	592
action for damages brought against a home under division (I)(1)(a)	593
of this section by or on behalf of a resident or former resident	594
of the home, the plaintiff or plaintiff's counsel shall send	595
written notice of the filing of the complaint to the department of	596
job and family services if the department has a right of recovery	597
under section 5101.58 of the Revised Code against the liability of	598
the home for the cost of medical services and care arising out of	599
injury, disease, or disability of the resident or former resident.	600

Sec. 5111.411. The results of a survey of a nursing facility	601
that is conducted under section 5111.39 of the Revised Code,	602
including any statement of deficiencies and all findings and	603
deficiencies cited in the statement on the basis of the survey,	604
shall be used solely to determine the nursing facility's	605
compliance with certification requirements or with this chapter or	606
another chapter of the Revised Code. Those results of a survey,	607
that statement of deficiencies, and the findings and deficiencies	608
cited in that statement shall not be used in any court or in any	609
action or proceeding that is pending in any court and are not	610
admissible in evidence in any action or proceeding unless that	611
action or proceeding is an appeal of an administrative action by	612
the department of job and family services or contracting agency	613
under this chapter or is an action by any department or agency of	614
the state to enforce this chapter or another chapter of the	615
Revised Code.	616

Nothing in this section prohibits the results of a survey, a	617
statement of deficiencies, or the findings and deficiencies cited	618
in that statement on the basis of the survey under this section	619
from being used in a criminal investigation or prosecution.	620

Section 2. That existing sections 2305.11, 2315.21, 2711.23,	621
2711.24, 3721.02, and 3721.17 of the Revised Code are hereby	622
repealed.	623

Section 3. Nothing in this act applies to proceedings or	624
appeals involving workers' compensation claims under Chapter 4121.	625
or 4123. of the Revised Code.	626

Section 4. If any provision of section 2305.11, 2315.21,	627
2711.23, 2711.24, 3721.02, or 3721.17 of the Revised Code, as	628
amended by this act, any provision of section 5111.411 of the	629
Revised Code, as enacted by this act, or the application of any	630
provision of those sections to any person or circumstance is held	631
invalid, the invalidity does not affect other provisions or	632
applications of the particular section or related sections that	633
can be given effect without the invalid provision or application,	634
and to this end the provisions of the particular section are	635
severable.	636