REPRESENTATIVES Buehrer, Willamowski, Seitz, Manning, Womer Benjamin

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 heir	78
of the patient if the patient died without a will, is a	79
beneficiary under the will that is the subject of the will contest	80
action, or is a beneficiary under another testamentary document	81
allegedly executed by the patient, and demonstrates to the court	82
that the testimony is necessary to establish the party's rights as	83
described in this division.	84

(2)(a) If any law enforcement officer submits a written	85
statement to a health care provider that states that an official	86
criminal investigation has begun regarding a specified person or	87
that a criminal action or proceeding has been commenced against a	88
specified person, that requests the provider to supply to the	89
officer copies of any records the provider possesses that pertain	90
to any test or the results of any test administered to the	91
specified person to determine the presence or concentration of	92
alcohol, a drug of abuse, or alcohol and a drug of abuse in the	93
person's blood, breath, or urine at any time relevant to the	94
criminal offense in question, and that conforms to section	95
2317.022 of the Revised Code, the provider, except to the extent	96
specifically prohibited by any law of this state or of the United	97
States, shall supply to the officer a copy of any of the requested	98
records the provider possesses. If the health care provider does	99
not possess any of the requested records, the provider shall give	100
the officer a written statement that indicates that the provider	101
does not possess any of the requested records.	102

(b) If a health care provider possesses any records of the	103
type described in division (B)(2)(a) of this section regarding the	104
person in question at any time relevant to the criminal offense in	105
question, in lieu of personally testifying as to the results of	106
the test in question, the custodian of the records may submit a	107
certified copy of the records, and, upon its submission, the	108
certified copy is qualified as authentic evidence and may be	109
admitted as evidence in accordance with the Rules of Evidence.	110
Division (A) of section 2317.422 of the Revised Code does not	111
apply to any certified copy of records submitted in accordance	112
with this division. Nothing in this division shall be construed	113
to limit the right of any party to call as a witness the person	114
who administered the test to which the records pertain, the person	115
under whose supervision the test was administered, the custodian	116
of the records, the person who made the records, or the person	117
under whose supervision the records were made.	118

(3)(a) If the testimonial privilege described in division	119
(B)(1) of this section does not apply as provided in division	120
(B)(1)(a)(iii) of this section, a physician or dentist may be	121
compelled to testify or to submit to discovery under the Rules of	122
Civil Procedure only as to a communication made to the physician	123
or dentist by the patient in question in that relation, or the	124
physician's or dentist's advice to the patient in question, that	125
related causally or historically to physical or mental injuries	126
that are relevant to issues in the medical claim, dental claim,	127
chiropractic claim, or optometric claim, action for wrongful	128
death, other civil action, or claim under Chapter 4123. of the	129
Revised Code.	130

(b) If the testimonial privilege described in division	131
(B)(1) of this section does not apply to a physician or dentist as	132
provided in division (B)(1)(c) of this section, the physician or	133
dentist, in lieu of personally testifying as to the results of the	134
test in question, may submit a certified copy of those results,	135
and, upon its submission, the certified copy is qualified as	136
authentic evidence and may be admitted as evidence in accordance	137
with the Rules of Evidence. Division (A) of section 2317.422 of	138
the Revised Code does not apply to any certified copy of results	139
submitted in accordance with this division. Nothing in this	140
division shall be construed to limit the right of any party to	141
call as a witness the person who administered the test in	142
question, the person under whose supervision the test was	143
administered, the custodian of the results of the test, the person	144
who compiled the results, or the person under whose supervision	145
the results were compiled.	146

(c) If the testimonial privilege described in division (B)(1)	147
of this section does not apply as provided in division (B)(1)(e)	148
of this section, a physician or dentist may be compelled to	149
testify or to submit to discovery in the will contest action under	150
sections 2107.71 to 2107.77 of the Revised Code only as to the	151
patient in question on issues relevant to the competency of the	152
patient at the time of the execution of the will. Testimony or	153
discovery conducted pursuant to this division shall be conducted	154
in accordance with the Rules of Civil Procedure.	155

(4) The testimonial privilege described in division (B)(1)	156
of this section is not waived when a communication is made by a	157
physician to a pharmacist or when there is communication between a	158
patient and a pharmacist in furtherance of the physician-patient	159
relation.	160

(5)(a) As used in divisions (B)(1) to (4) of this section,	161
"communication" means acquiring, recording, or transmitting any	162
information, in any manner, concerning any facts, opinions, or	163
statements necessary to enable a physician or dentist to diagnose,	164
treat, prescribe, or act for a patient. A "communication" may	165
include, but is not limited to, any medical or dental, office, or	166
hospital communication such as a record, chart, letter,	167
memorandum, laboratory test and results, x-ray, photograph,	168
financial statement, diagnosis, or prognosis.	169

(b) As used in division (B)(2) of this section, "health care	170
provider" means a hospital, ambulatory care facility, long-term	171
care facility, pharmacy, emergency facility, or health care	172
practitioner.	173

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

174

(i) "Ambulatory care facility" means a facility that provides	175
medical, diagnostic, or surgical treatment to patients who do not	176
require hospitalization, including a dialysis center, ambulatory	177
surgical facility, cardiac catheterization facility, diagnostic	178
imaging center, extracorporeal shock wave lithotripsy center, home	179
health agency, inpatient hospice, birthing center, radiation	180
therapy center, emergency facility, and an urgent care center.	181
"Ambulatory health care facility" does not include the private	182
office of a physician or dentist, whether the office is for an	183
individual or group practice.	184

(ii) "Emergency facility" means a hospital emergency	185
department or any other facility that provides emergency medical	186
services.	187

(iii) "Health care practitioner" has the same meaning as in	188
section 4769.01 of the Revised Code.	189

(iv) "Hospital" has the same meaning as in section 3727.01 of	190
the Revised Code.	191

(v) "Long-term care facility" means a nursing home,	192
residential care facility, or home for the aging, as those terms	193
are defined in section 3721.01 of the Revised Code; an adult care	194
facility, as defined in section 3722.01 of the Revised Code; a	195
nursing facility or intermediate care facility for the mentally	196
retarded, as those terms are defined in section 5111.20 of the	197
Revised Code; a facility or portion of a facility certified as a	198
skilled nursing facility under Title XVIII of the "Social Security	199
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended.	200

(vi) "Pharmacy" has the same meaning as in section 4729.01 of	201
the Revised Code.	202

(6) Divisions (B)(1), (2), (3), (4), and (5) of this section	203
apply to doctors of medicine, doctors of osteopathic medicine,	204
doctors of podiatry, and dentists.	205

(7) Nothing in divisions (B)(1) to (6) of this section	206
affects, or shall be construed as affecting, the immunity from	207
civil liability conferred by section 307.628 or 2305.33 of the	208
Revised Code upon physicians who report an employee's use of a	209
drug of abuse, or a condition of an employee other than one	210
involving the use of a drug of abuse, to the employer of the	211
employee in accordance with division (B) of that section. As used	212
in division (B)(7) of this section, "employee," "employer," and	213
"physician" have the same meanings as in section 2305.33 of the	214
Revised Code.	215

(C) A member of the clergy, rabbi, priest, or regularly	216
ordained, accredited, or licensed minister of an established and	217
legally cognizable church, denomination, or sect, when the member	218
of the clergy, rabbi, priest, or minister remains accountable to	219
the authority of that church, denomination, or sect, concerning a	220
confession made, or any information confidentially communicated,	221
to the member of the clergy, rabbi, priest, or minister for a	222
religious counseling purpose in the member of the clergy's,	223
rabbi's, priest's, or minister's professional character; however,	224
the member of the clergy, rabbi, priest, or minister may testify	225
by express consent of the person making the communication, except	226
when the disclosure of the information is in violation of a sacred	227
trust;	228

(D) Husband or wife, concerning any communication made by	229
one to the other, or an act done by either in the presence of the	230
other, during coverture, unless the communication was made, or act	231
done, in the known presence or hearing of a third person competent	232
to be a witness; and such rule is the same if the marital relation	233
has ceased to exist;	234

(E) A person who assigns a claim or interest, concerning any	235
matter in respect to which the person would not, if a party, be	236
permitted to testify;	237

(F) A person who, if a party, would be restricted under	238
section 2317.03 of the Revised Code, when the property or thing is	239
sold or transferred by an executor, administrator, guardian,	240
trustee, heir, devisee, or legatee, shall be restricted in the	241
same manner in any action or proceeding concerning the property or	242
thing.	243

(G)(1) A school guidance counselor who holds a valid	244
educator license from the state board of education as provided for	245
in section 3319.22 of the Revised Code, a person licensed under	246
Chapter 4757. of the Revised Code as a professional clinical	247
counselor, professional counselor, social worker, or independent	248
social worker, or registered under Chapter 4757. of the Revised	249
Code as a social work assistant concerning a confidential	250
communication received from a client in that relation or the	251
person's advice to a client unless any of the following applies:	252

(a) The communication or advice indicates clear and present	253
danger to the client or other persons. For the purposes of this	254
division, cases in which there are indications of present or past	255
child abuse or neglect of the client constitute a clear and	256
present danger.	257

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

258

(c) If the client is deceased, the surviving spouse or the	259
executor or administrator of the estate of the deceased client	260
gives express consent.	261

(d) The client voluntarily testifies, in which case the	262
school guidance counselor or person licensed or registered under	263
Chapter 4757. of the Revised Code may be compelled to testify on	264
the same subject.	265

(e) The court in camera determines that the information	266
communicated by the client is not germane to the counselor-client	267
or social worker-client relationship.	268

(f) A court, in an action brought against a school, its	269
administration, or any of its personnel by the client, rules after	270
an in-camera inspection that the testimony of the school guidance	271
counselor is relevant to that action.	272

(g) The testimony is sought in a civil action and concerns	273
court-ordered treatment or services received by a patient as part	274
of a case plan journalized under section 2151.412 of the Revised	275
Code or the court-ordered treatment or services are necessary or	276
relevant to dependency, neglect, or abuse or temporary or	277
permanent custody proceedings under Chapter 2151. of the Revised	278
Code.	279

(2) Nothing in division (G)(1) of this section shall relieve	280
a school guidance counselor or a person licensed or registered	281
under Chapter 4757. of the Revised Code from the requirement to	282
report information concerning child abuse or neglect under section	283
2151.421 of the Revised Code.	284

(H) A mediator acting under a mediation order issued under	285
division (A) of section 3109.052 of the Revised Code or otherwise	286
issued in any proceeding for divorce, dissolution, legal	287
separation, annulment, or the allocation of parental rights and	288
responsibilities for the care of children, in any action or	289
proceeding, other than a criminal, delinquency, child abuse, child	290
neglect, or dependent child action or proceeding, that is brought	291
by or against either parent who takes part in mediation in	292
accordance with the order and that pertains to the mediation	293
process, to any information discussed or presented in the	294
mediation process, to the allocation of parental rights and	295
responsibilities for the care of the parents' children, or to the	296
awarding of parenting time rights in relation to their children;	297

(I) A communications assistant, acting within the scope of	298
the communication assistant's authority, when providing	299
telecommunications relay service pursuant to section 4931.35 of	300
the Revised Code or Title II of the "Communications Act of 1934,"	301
104 Stat. 366 (1990), 47 U.S.C. 225, concerning a communication	302
made through a telecommunications relay service. Nothing in this	303
section shall limit the obligation of a communications assistant	304
to divulge information or testify when mandated by federal law or	305
regulation or pursuant to subpoena in a criminal proceeding.	306

Nothing in this section shall limit any immunity or privilege	307
granted under federal law or regulation.	308

(J)(1) A chiropractor in a civil proceeding concerning a	309
communication made to the chiropractor by a patient in that	310
relation or the chiropractor's advice to a patient, except as	311
otherwise provided in this division. The testimonial privilege	312
established under this division does not apply, and a chiropractor	313
may testify or may be compelled to testify, in any civil action,	314
in accordance with the discovery provisions of the Rules of Civil	315
Procedure in connection with a civil action, or in connection with	316
a claim under Chapter 4123. of the Revised Code, under any of the	317
following circumstances:	318

(a) If the patient or the guardian or other legal	319
representative of the patient gives express consent.	320

(b) If the patient is deceased, the spouse of the patient or	321
the executor or administrator of the patient's estate gives	322
express consent.	323

(c) If a medical claim, dental claim, chiropractic claim, or	324
optometric claim, as defined in section 2305.11 of the Revised	325
Code, an action for wrongful death, any other type of civil	326
action, or a claim under Chapter 4123. of the Revised Code is	327
filed by the patient, the personal representative of the estate of	328
the patient if deceased, or the patient's guardian or other legal	329
representative.	330

(2) If the testimonial privilege described in division	331
(J)(1) of this section does not apply as provided in division	332
(J)(1)(c) of this section, a chiropractor may be compelled to	333
testify or to submit to discovery under the Rules of Civil	334
Procedure only as to a communication made to the chiropractor by	335
the patient in question in that relation, or the chiropractor's	336
advice to the patient in question, that related causally or	337
historically to physical or mental injuries that are relevant to	338
issues in the medical claim, dental claim, chiropractic claim, or	339
optometric claim, action for wrongful death, other civil action,	340
or claim under Chapter 4123. of the Revised Code.	341

(3) The testimonial privilege established under this	342
division does not apply, and a chiropractor may testify or be	343
compelled to testify, in any criminal action or administrative	344
proceeding.	345

(4) As used in this division, "communication" means	346
acquiring, recording, or transmitting any information, in any	347
manner, concerning any facts, opinions, or statements necessary to	348
enable a chiropractor to diagnosisdiagnose, treat, or act for a	349
patient. A communication may include, but is not limited to, any	350
chiropractic, office, or hospital communication such as a record,	351
chart, letter, memorandum, laboratory test and results, x-ray,	352
photograph, financial statement, diagnosis, or prognosis.	353

Section 2. That existing section 2317.02 of the Revised Code	354
is hereby repealed.	355