REPRESENTATIVES Buehrer, Willamowski, Seitz, Manning, Womer Benjamin, Gilb, Calvert, Otterman, Salerno, Hughes, Setzer, Roman, Schmidt, Peterson, Hoops, Hagan, Flannery, Redfern, Collier

To amend section 2317.02 of the Revised Code to permit

1

the testimonial privilege between a physician and a

2

deceased patient to be waived by any party to a

3

will contest action.

4

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

Section 1. That section 2317.02 of the Revised Code be	5
amended to read as follows:	6

Sec. 2317.02.  The following persons shall not testify in	7
certain respects:	8

(A) An attorney, concerning a communication made to the	9
attorney by a client in that relation or the attorney's advice to	10
a client, except that the attorney may testify by express consent	11
of the client or, if the client is deceased, by the express	12
consent of the surviving spouse or the executor or administrator	13
of the estate of the deceased client and except that, if the	14
client voluntarily testifies or is deemed by section 2151.421 of	15
the Revised Code to have waived any testimonial privilege under	16
this division, the attorney may be compelled to testify on the	17
same subject;	18

(B)(1) A physician or a dentist concerning a communication	19
made to the physician or dentist by a patient in that relation or	20
the physician's or dentist's advice to a patient, except as	21
otherwise provided in this division, division (B)(2), and division	22
(B)(3) of this section, and except that, if the patient is deemed	23
by section 2151.421 of the Revised Code to have waived any	24
testimonial privilege under this division, the physician may be	25
compelled to testify on the same subject.	26

The testimonial privilege established under this division	27
does not apply, and a physician or dentist may testify or may be	28
compelled to testify, in any of the following circumstances:	29

(a) In any civil action, in accordance with the discovery	30
provisions of the Rules of Civil Procedure in connection with a	31
civil action, or in connection with a claim under Chapter 4123. of	32
the Revised Code, under any of the following circumstances:	33

(i) If the patient or the guardian or other legal	34
representative of the patient gives express consent;	35

(ii) If the patient is deceased, the spouse of the patient	36
or the executor or administrator of the patient's estate gives	37
express consent;	38

(iii) If a medical claim, dental claim, chiropractic claim,	39
or optometric claim, as defined in section 2305.11 of the Revised	40
Code, an action for wrongful death, any other type of civil	41
action, or a claim under Chapter 4123. of the Revised Code is	42
filed by the patient, the personal representative of the estate of	43
the patient if deceased, or the patient's guardian or other legal	44
representative.	45

(b) In any civil action concerning court-ordered treatment	46
or services received by a patient, if the court-ordered treatment	47
or services were ordered as part of a case plan journalized under	48
section 2151.412 of the Revised Code or the court-ordered	49
treatment or services are necessary or relevant to dependency,	50
neglect, or abuse or temporary or permanent custody proceedings	51
under Chapter 2151. of the Revised Code.	52

(c) In any criminal action concerning any test or the	53
results of any test that determines the presence or concentration	54
of alcohol, a drug of abuse, or alcohol and a drug of abuse in the	55
patient's blood, breath, urine, or other bodily substance at any	56
time relevant to the criminal offense in question.	57

(d) In any criminal action against a physician or dentist.	58
In such an action, the testimonial privilege established under	59
this division does not prohibit the admission into evidence, in	60
accordance with the Rules of Evidence, of a patient's medical or	61
dental records or other communications between a patient and the	62
physician or dentist that are related to the action and obtained	63
by subpoena, search warrant, or other lawful means. A court that	64
permits or compels a physician or dentist to testify in such an	65
action or permits the introduction into evidence of patient	66
records or other communications in such an action shall require	67
that appropriate measures be taken to ensure that the	68
confidentiality of any patient named or otherwise identified in	69
the records is maintained. Measures to ensure confidentiality	70
that may be taken by the court include sealing its records or	71
deleting specific information from its records.	72

(e) In any will contest action under sections 2107.71 to	73
2107.77 of the Revised Code if all of the following apply:	74

(i) The patient is deceased.

75

(ii) A party to the will contest action requests the	76
testimony, demonstrates to the court that that party would be an	77
heir of the patient if the patient died without a will, is a	78
beneficiary under the will that is the subject of the will contest	79
action, or is a beneficiary under another testamentary document	80
allegedly executed by the patient, and demonstrates to the court	81
that the testimony is necessary to establish the party's rights as	82
described in this division.	83

(2)(a) If any law enforcement officer submits a written	84
statement to a health care provider that states that an official	85
criminal investigation has begun regarding a specified person or	86
that a criminal action or proceeding has been commenced against a	87
specified person, that requests the provider to supply to the	88
officer copies of any records the provider possesses that pertain	89
to any test or the results of any test administered to the	90
specified person to determine the presence or concentration of	91
alcohol, a drug of abuse, or alcohol and a drug of abuse in the	92
person's blood, breath, or urine at any time relevant to the	93
criminal offense in question, and that conforms to section	94
2317.022 of the Revised Code, the provider, except to the extent	95
specifically prohibited by any law of this state or of the United	96
States, shall supply to the officer a copy of any of the requested	97
records the provider possesses. If the health care provider does	98
not possess any of the requested records, the provider shall give	99
the officer a written statement that indicates that the provider	100
does not possess any of the requested records.	101

(b) If a health care provider possesses any records of the	102
type described in division (B)(2)(a) of this section regarding the	103
person in question at any time relevant to the criminal offense in	104
question, in lieu of personally testifying as to the results of	105
the test in question, the custodian of the records may submit a	106
certified copy of the records, and, upon its submission, the	107
certified copy is qualified as authentic evidence and may be	108
admitted as evidence in accordance with the Rules of Evidence.	109
Division (A) of section 2317.422 of the Revised Code does not	110
apply to any certified copy of records submitted in accordance	111
with this division. Nothing in this division shall be construed	112
to limit the right of any party to call as a witness the person	113
who administered the test to which the records pertain, the person	114
under whose supervision the test was administered, the custodian	115
of the records, the person who made the records, or the person	116
under whose supervision the records were made.	117

(3)(a) If the testimonial privilege described in division	118
(B)(1) of this section does not apply as provided in division	119
(B)(1)(a)(iii) of this section, a physician or dentist may be	120
compelled to testify or to submit to discovery under the Rules of	121
Civil Procedure only as to a communication made to the physician	122
or dentist by the patient in question in that relation, or the	123
physician's or dentist's advice to the patient in question, that	124
related causally or historically to physical or mental injuries	125
that are relevant to issues in the medical claim, dental claim,	126
chiropractic claim, or optometric claim, action for wrongful	127
death, other civil action, or claim under Chapter 4123. of the	128
Revised Code.	129

(b) If the testimonial privilege described in division	130
(B)(1) of this section does not apply to a physician or dentist as	131
provided in division (B)(1)(c) of this section, the physician or	132
dentist, in lieu of personally testifying as to the results of the	133
test in question, may submit a certified copy of those results,	134
and, upon its submission, the certified copy is qualified as	135
authentic evidence and may be admitted as evidence in accordance	136
with the Rules of Evidence. Division (A) of section 2317.422 of	137
the Revised Code does not apply to any certified copy of results	138
submitted in accordance with this division. Nothing in this	139
division shall be construed to limit the right of any party to	140
call as a witness the person who administered the test in	141
question, the person under whose supervision the test was	142
administered, the custodian of the results of the test, the person	143
who compiled the results, or the person under whose supervision	144
the results were compiled.	145

(c) If the testimonial privilege described in division (B)(1)	146
of this section does not apply as provided in division (B)(1)(e)	147
of this section, a physician or dentist may be compelled to	148
testify or to submit to discovery in the will contest action under	149
sections 2107.71 to 2107.77 of the Revised Code only as to the	150
patient in question on issues relevant to the competency of the	151
patient at the time of the execution of the will. Testimony or	152
discovery conducted pursuant to this division shall be conducted	153
in accordance with the Rules of Civil Procedure.	154

(4) The testimonial privilege described in division (B)(1)	155
of this section is not waived when a communication is made by a	156
physician to a pharmacist or when there is communication between a	157
patient and a pharmacist in furtherance of the physician-patient	158
relation.	159

(5)(a) As used in divisions (B)(1) to (4) of this section,	160
"communication" means acquiring, recording, or transmitting any	161
information, in any manner, concerning any facts, opinions, or	162
statements necessary to enable a physician or dentist to diagnose,	163
treat, prescribe, or act for a patient. A "communication" may	164
include, but is not limited to, any medical or dental, office, or	165
hospital communication such as a record, chart, letter,	166
memorandum, laboratory test and results, x-ray, photograph,	167
financial statement, diagnosis, or prognosis.	168

(b) As used in division (B)(2) of this section, "health care	169
provider" means a hospital, ambulatory care facility, long-term	170
care facility, pharmacy, emergency facility, or health care	171
practitioner.	172

(c) As used in division (B)(5)(b) of this section:

173

(i) "Ambulatory care facility" means a facility that provides	174
medical, diagnostic, or surgical treatment to patients who do not	175
require hospitalization, including a dialysis center, ambulatory	176
surgical facility, cardiac catheterization facility, diagnostic	177
imaging center, extracorporeal shock wave lithotripsy center, home	178
health agency, inpatient hospice, birthing center, radiation	179
therapy center, emergency facility, and an urgent care center.	180
"Ambulatory health care facility" does not include the private	181
office of a physician or dentist, whether the office is for an	182
individual or group practice.	183

(ii) "Emergency facility" means a hospital emergency	184
department or any other facility that provides emergency medical	185
services.	186

(iii) "Health care practitioner" has the same meaning as in	187
section 4769.01 of the Revised Code.	188

(iv) "Hospital" has the same meaning as in section 3727.01 of	189
the Revised Code.	190

(v) "Long-term care facility" means a nursing home,	191
residential care facility, or home for the aging, as those terms	192
are defined in section 3721.01 of the Revised Code; an adult care	193
facility, as defined in section 3722.01 of the Revised Code; a	194
nursing facility or intermediate care facility for the mentally	195
retarded, as those terms are defined in section 5111.20 of the	196
Revised Code; a facility or portion of a facility certified as a	197
skilled nursing facility under Title XVIII of the "Social Security	198
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended.	199

(vi) "Pharmacy" has the same meaning as in section 4729.01 of	200
the Revised Code.	201

(6) Divisions (B)(1), (2), (3), (4), and (5) of this section	202
apply to doctors of medicine, doctors of osteopathic medicine,	203
doctors of podiatry, and dentists.	204

(7) Nothing in divisions (B)(1) to (6) of this section	205
affects, or shall be construed as affecting, the immunity from	206
civil liability conferred by section 307.628 or 2305.33 of the	207
Revised Code upon physicians who report an employee's use of a	208
drug of abuse, or a condition of an employee other than one	209
involving the use of a drug of abuse, to the employer of the	210
employee in accordance with division (B) of that section. As used	211
in division (B)(7) of this section, "employee," "employer," and	212
"physician" have the same meanings as in section 2305.33 of the	213
Revised Code.	214

(C) A member of the clergy, rabbi, priest, or regularly	215
ordained, accredited, or licensed minister of an established and	216
legally cognizable church, denomination, or sect, when the member	217
of the clergy, rabbi, priest, or minister remains accountable to	218
the authority of that church, denomination, or sect, concerning a	219
confession made, or any information confidentially communicated,	220
to the member of the clergy, rabbi, priest, or minister for a	221
religious counseling purpose in the member of the clergy's,	222
rabbi's, priest's, or minister's professional character; however,	223
the member of the clergy, rabbi, priest, or minister may testify	224
by express consent of the person making the communication, except	225
when the disclosure of the information is in violation of a sacred	226
trust;	227

(D) Husband or wife, concerning any communication made by	228
one to the other, or an act done by either in the presence of the	229
other, during coverture, unless the communication was made, or act	230
done, in the known presence or hearing of a third person competent	231
to be a witness; and such rule is the same if the marital relation	232
has ceased to exist;	233

(E) A person who assigns a claim or interest, concerning any	234
matter in respect to which the person would not, if a party, be	235
permitted to testify;	236

(F) A person who, if a party, would be restricted under	237
section 2317.03 of the Revised Code, when the property or thing is	238
sold or transferred by an executor, administrator, guardian,	239
trustee, heir, devisee, or legatee, shall be restricted in the	240
same manner in any action or proceeding concerning the property or	241
thing.	242

(G)(1) A school guidance counselor who holds a valid	243
educator license from the state board of education as provided for	244
in section 3319.22 of the Revised Code, a person licensed under	245
Chapter 4757. of the Revised Code as a professional clinical	246
counselor, professional counselor, social worker, or independent	247
social worker, or registered under Chapter 4757. of the Revised	248
Code as a social work assistant concerning a confidential	249
communication received from a client in that relation or the	250
person's advice to a client unless any of the following applies:	251

(a) The communication or advice indicates clear and present	252
danger to the client or other persons. For the purposes of this	253
division, cases in which there are indications of present or past	254
child abuse or neglect of the client constitute a clear and	255
present danger.	256

(b) The client gives express consent to the testimony.

257

(c) If the client is deceased, the surviving spouse or the	258
executor or administrator of the estate of the deceased client	259
gives express consent.	260

(d) The client voluntarily testifies, in which case the	261
school guidance counselor or person licensed or registered under	262
Chapter 4757. of the Revised Code may be compelled to testify on	263
the same subject.	264

(e) The court in camera determines that the information	265
communicated by the client is not germane to the counselor-client	266
or social worker-client relationship.	267

(f) A court, in an action brought against a school, its	268
administration, or any of its personnel by the client, rules after	269
an in-camera inspection that the testimony of the school guidance	270
counselor is relevant to that action.	271

(g) The testimony is sought in a civil action and concerns	272
court-ordered treatment or services received by a patient as part	273
of a case plan journalized under section 2151.412 of the Revised	274
Code or the court-ordered treatment or services are necessary or	275
relevant to dependency, neglect, or abuse or temporary or	276
permanent custody proceedings under Chapter 2151. of the Revised	277
Code.	278

(2) Nothing in division (G)(1) of this section shall relieve	279
a school guidance counselor or a person licensed or registered	280
under Chapter 4757. of the Revised Code from the requirement to	281
report information concerning child abuse or neglect under section	282
2151.421 of the Revised Code.	283

(H) A mediator acting under a mediation order issued under	284
division (A) of section 3109.052 of the Revised Code or otherwise	285
issued in any proceeding for divorce, dissolution, legal	286
separation, annulment, or the allocation of parental rights and	287
responsibilities for the care of children, in any action or	288
proceeding, other than a criminal, delinquency, child abuse, child	289
neglect, or dependent child action or proceeding, that is brought	290
by or against either parent who takes part in mediation in	291
accordance with the order and that pertains to the mediation	292
process, to any information discussed or presented in the	293
mediation process, to the allocation of parental rights and	294
responsibilities for the care of the parents' children, or to the	295
awarding of parenting time rights in relation to their children;	296

(I) A communications assistant, acting within the scope of	297
the communication assistant's authority, when providing	298
telecommunications relay service pursuant to section 4931.35 of	299
the Revised Code or Title II of the "Communications Act of 1934,"	300
104 Stat. 366 (1990), 47 U.S.C. 225, concerning a communication	301
made through a telecommunications relay service. Nothing in this	302
section shall limit the obligation of a communications assistant	303
to divulge information or testify when mandated by federal law or	304
regulation or pursuant to subpoena in a criminal proceeding.	305

Nothing in this section shall limit any immunity or privilege	306
granted under federal law or regulation.	307

(J)(1) A chiropractor in a civil proceeding concerning a	308
communication made to the chiropractor by a patient in that	309
relation or the chiropractor's advice to a patient, except as	310
otherwise provided in this division. The testimonial privilege	311
established under this division does not apply, and a chiropractor	312
may testify or may be compelled to testify, in any civil action,	313
in accordance with the discovery provisions of the Rules of Civil	314
Procedure in connection with a civil action, or in connection with	315
a claim under Chapter 4123. of the Revised Code, under any of the	316
following circumstances:	317

(a) If the patient or the guardian or other legal	318
representative of the patient gives express consent.	319

(b) If the patient is deceased, the spouse of the patient or	320
the executor or administrator of the patient's estate gives	321
express consent.	322

(c) If a medical claim, dental claim, chiropractic claim, or	323
optometric claim, as defined in section 2305.11 of the Revised	324
Code, an action for wrongful death, any other type of civil	325
action, or a claim under Chapter 4123. of the Revised Code is	326
filed by the patient, the personal representative of the estate of	327
the patient if deceased, or the patient's guardian or other legal	328
representative.	329

(2) If the testimonial privilege described in division	330
(J)(1) of this section does not apply as provided in division	331
(J)(1)(c) of this section, a chiropractor may be compelled to	332
testify or to submit to discovery under the Rules of Civil	333
Procedure only as to a communication made to the chiropractor by	334
the patient in question in that relation, or the chiropractor's	335
advice to the patient in question, that related causally or	336
historically to physical or mental injuries that are relevant to	337
issues in the medical claim, dental claim, chiropractic claim, or	338
optometric claim, action for wrongful death, other civil action,	339
or claim under Chapter 4123. of the Revised Code.	340

(3) The testimonial privilege established under this	341
division does not apply, and a chiropractor may testify or be	342
compelled to testify, in any criminal action or administrative	343
proceeding.	344

(4) As used in this division, "communication" means	345
acquiring, recording, or transmitting any information, in any	346
manner, concerning any facts, opinions, or statements necessary to	347
enable a chiropractor to diagnosisdiagnose, treat, or act for a	348
patient. A communication may include, but is not limited to, any	349
chiropractic, office, or hospital communication such as a record,	350
chart, letter, memorandum, laboratory test and results, x-ray,	351
photograph, financial statement, diagnosis, or prognosis.	352

Section 2. That existing section 2317.02 of the Revised Code	353
is hereby repealed.	354