(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. However, if | 14 |
the
client voluntarily
testifies or is deemed by section 2151.421 | 15 |
of
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 | 25 |
made to the physician or dentist by a patient in that relation or | 26 |
the
physician's or dentist's advice to a
patient, except as | 27 |
otherwise provided in this division, division (B)(2), and
division | 28 |
(B)(3) of this section, and except that, if the patient
is deemed | 29 |
by section 2151.421 of the Revised Code to have waived
any | 30 |
testimonial privilege under this division, the physician may
be | 31 |
compelled to testify on the same subject. | 32 |
(iii) If a medical claim, dental claim, chiropractic
claim, | 45 |
or optometric claim, as defined in section 2305.113 of the
Revised | 46 |
Code, an action for wrongful death, any other type of
civil | 47 |
action, or a claim under Chapter 4123. of the Revised Code
is | 48 |
filed by the patient, the personal representative of the
estate of | 49 |
the patient if deceased, or the patient's guardian
or other legal | 50 |
representative. | 51 |
(b) In any civil action concerning court-ordered treatment
or | 52 |
services
received by a patient, if the court-ordered treatment
or | 53 |
services were ordered
as part of a case plan journalized under | 54 |
section 2151.412 of the Revised Code or the
court-ordered | 55 |
treatment or services are necessary or relevant to dependency, | 56 |
neglect, or abuse or temporary or permanent custody proceedings | 57 |
under
Chapter 2151. of the Revised Code. | 58 |
(d) In any criminal action against a physician
or dentist.
In | 64 |
such an action, the testimonial privilege
established under
this | 65 |
division does not prohibit the admission
into evidence, in | 66 |
accordance with the
Rules of
Evidence, of a patient's
medical or | 67 |
dental records or other communications between a
patient and the | 68 |
physician or dentist that are related to the
action and obtained | 69 |
by subpoena, search warrant, or other lawful
means. A court that | 70 |
permits or compels a physician or dentist
to testify in such an | 71 |
action or permits the introduction into
evidence of patient | 72 |
records or other communications in such an
action shall require | 73 |
that appropriate measures be taken to
ensure that the | 74 |
confidentiality of any patient named or
otherwise identified in | 75 |
the records is maintained. Measures to
ensure confidentiality
that | 76 |
may be taken by the court include
sealing its records or
deleting | 77 |
specific information from its
records. | 78 |
(ii) A party to the will contest action requests the | 82 |
testimony, demonstrates to the court that that
party would be an | 83 |
heir
of the patient if the patient died without
a will, is a | 84 |
beneficiary under the will that is the subject of the
will contest | 85 |
action, or is a beneficiary under another
testamentary document | 86 |
allegedly executed by the patient, and demonstrates to the court | 87 |
that the testimony is necessary to establish the party's rights as | 88 |
described in this division(i) If the communication was between a | 89 |
patient who has since died and the deceased patient's physician or | 90 |
dentist and the communication is relevant to a dispute between | 91 |
parties who claim through that deceased patient, regardless of | 92 |
whether the claims are by testate or intestate succession or by | 93 |
inter vivos transaction. | 94 |
(ii) If neither the spouse of a patient nor the executor or | 95 |
administrator of that patient's estate gives consent under | 96 |
division (B)(1)(a)(ii) of this section, testimony or the | 97 |
disclosure of the patient's medical records by a physician, | 98 |
dentist, or other health care provider under division (B)(1)(e)(i) | 99 |
of this section is a permitted use or disclosure of protected | 100 |
health information, as defined in 45 C.F.R. 160.103, and an | 101 |
authorization or opportunity to be heard shall not be required. | 102 |
(v) A person to whom protected health information is | 109 |
disclosed under division (B)(1)(e)(i) of this section shall not | 110 |
use or disclose the protected health information for any purpose | 111 |
other than the litigation or proceeding for which the information | 112 |
was requested and shall return the protected health information to | 113 |
the covered entity or destroy the protected health information, | 114 |
including all copies made, at the conclusion of the litigation or | 115 |
proceeding. | 116 |
(2)(a) If any law enforcement officer submits a written | 117 |
statement to a health
care provider that states that an official | 118 |
criminal investigation has begun
regarding a specified person or | 119 |
that a criminal action or proceeding has been
commenced against a | 120 |
specified person, that requests the provider to supply to
the | 121 |
officer copies of any records the provider possesses that pertain | 122 |
to any
test or the results of any test administered to the | 123 |
specified person to
determine the presence or concentration of | 124 |
alcohol, a drug of abuse, or alcohol
and a drug of abuse in the | 125 |
person's blood, breath, or urine at any time
relevant to the | 126 |
criminal offense in question, and that conforms to section | 127 |
2317.022 of the Revised Code, the provider, except to the extent | 128 |
specifically
prohibited by any law of this state or of the United | 129 |
States, shall supply to
the officer a copy of any of the requested | 130 |
records the provider possesses. If
the health care provider does | 131 |
not possess any of the requested records, the
provider shall give | 132 |
the officer a written statement that indicates that the
provider | 133 |
does not possess any of the requested records. | 134 |
(b) If a health care provider possesses any records of the | 135 |
type described in
division (B)(2)(a) of this section regarding the | 136 |
person in question at any
time relevant to the criminal offense in | 137 |
question, in lieu of personally
testifying as to the results of | 138 |
the test in question, the custodian of the
records may submit a | 139 |
certified copy of the records, and, upon its submission,
the | 140 |
certified copy is qualified as authentic evidence and may be | 141 |
admitted as
evidence in accordance with the Rules of Evidence. | 142 |
Division (A) of section
2317.422 of the Revised Code does not | 143 |
apply to any certified copy of records
submitted in accordance | 144 |
with this division. Nothing in this division shall be
construed
to | 145 |
limit the right of any party to call as a witness the person
who | 146 |
administered the test to which the records pertain, the person | 147 |
under whose
supervision the test was administered, the custodian | 148 |
of the records, the
person who made the records, or the person | 149 |
under whose supervision the records
were made. | 150 |
(3)(a) If the testimonial privilege described in division | 151 |
(B)(1) of this section does not apply as provided in division | 152 |
(B)(1)(a)(iii) of this section, a physician or dentist may be | 153 |
compelled to testify or to submit to discovery under the Rules of | 154 |
Civil Procedure only as to a communication made to the physician | 155 |
or dentist by the patient in question in that relation, or the | 156 |
physician's or
dentist's advice to the
patient in question, that | 157 |
related causally or historically to
physical or mental injuries | 158 |
that are relevant to issues in the
medical claim, dental claim, | 159 |
chiropractic claim, or optometric
claim, action for wrongful | 160 |
death, other civil action, or claim
under Chapter 4123. of the | 161 |
Revised Code. | 162 |
(b) If the testimonial privilege described in division
(B)(1) | 163 |
of this section
does not apply to a physician or dentist as | 164 |
provided in division
(B)(1)(c) of
this section, the physician or | 165 |
dentist, in lieu of personally testifying as to
the results of the | 166 |
test in question, may submit a certified copy of those
results, | 167 |
and, upon its submission, the certified copy is qualified as | 168 |
authentic
evidence and may be admitted as evidence in accordance | 169 |
with the Rules of
Evidence. Division (A) of section 2317.422 of | 170 |
the Revised Code does not apply
to any certified copy of results | 171 |
submitted in accordance with this division.
Nothing in this | 172 |
division shall be construed to limit the right of any party to | 173 |
call as a witness the person who administered the test in | 174 |
question, the person
under whose supervision the test was | 175 |
administered, the custodian of the
results
of the test, the person | 176 |
who compiled the results, or the person under whose
supervision | 177 |
the results were compiled. | 178 |
(c) If the testimonial privilege described in division (B)(1) | 179 |
of this section does not apply as provided in division (B)(1)(e) | 180 |
of this section, a physician or dentist may be compelled to | 181 |
testify or to submit to discovery in the will contest action under | 182 |
sections 2107.71 to 2107.77 of the Revised Code only as to the | 183 |
patient in question on issues relevant to the competency of the | 184 |
patient at the time of the execution of the will. Testimony or | 185 |
discovery conducted pursuant to this division shall be conducted | 186 |
in accordance with the Rules of Civil Procedure. | 187 |
(5)(a) As used in divisions (B)(1) to (4) of this
section, | 193 |
"communication" means acquiring, recording, or transmitting any | 194 |
information, in any manner, concerning any facts, opinions, or | 195 |
statements necessary to enable a physician or dentist to
diagnose, | 196 |
treat, prescribe, or act for a patient. A
"communication" may | 197 |
include, but is not limited to, any medical
or dental, office, or | 198 |
hospital communication such as a record,
chart, letter, | 199 |
memorandum, laboratory test and results, x-ray,
photograph, | 200 |
financial statement, diagnosis, or prognosis. | 201 |
(i)
"Ambulatory care facility" means a facility that
provides | 207 |
medical, diagnostic, or surgical treatment to patients
who do not | 208 |
require hospitalization, including a dialysis center,
ambulatory | 209 |
surgical facility, cardiac catheterization facility,
diagnostic | 210 |
imaging center, extracorporeal shock wave lithotripsy
center, home | 211 |
health agency, inpatient hospice, birthing center,
radiation | 212 |
therapy center, emergency facility, and an urgent care
center. | 213 |
"Ambulatory health care facility" does not include the
private | 214 |
office of a physician or dentist, whether the office is
for an | 215 |
individual or group practice. | 216 |
(v)
"Long-term care facility" means a nursing home, | 224 |
residential care facility, or home
for the aging,
as those terms | 225 |
are defined in section 3721.01 of the Revised Code; an adult care | 226 |
facility, as defined in section 3722.01
of the Revised Code; a | 227 |
nursing facility or intermediate care facility for the mentally | 228 |
retarded, as those terms are defined in section 5111.20 of the | 229 |
Revised Code; a facility or portion of a facility certified as a | 230 |
skilled nursing facility under Title XVIII of the
"Social
Security | 231 |
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended. | 232 |
(7) Nothing in divisions (B)(1) to (6)
of this section | 238 |
affects, or shall be construed as affecting, the immunity from | 239 |
civil liability conferred by section 307.628 of the Revised Code | 240 |
or the immunity from civil liability conferred by section 2305.33 | 241 |
of the
Revised Code
upon physicians who report an employee's use | 242 |
of a
drug of abuse,
or a condition of an employee other than one | 243 |
involving the use of
a drug of abuse, to the employer of the | 244 |
employee in accordance
with division (B) of that section. As used | 245 |
in division
(B)(7) of this section,
"employee,"
"employer," and | 246 |
"physician" have the same meanings as
in section 2305.33 of the | 247 |
Revised Code. | 248 |
(C) A member of the clergy, rabbi, priest, or regularly | 249 |
ordained,
accredited, or licensed minister of an established and | 250 |
legally
cognizable church, denomination, or sect, when the member | 251 |
of
the clergy,
rabbi, priest, or minister remains accountable to | 252 |
the authority
of that church, denomination, or sect, concerning a | 253 |
confession
made, or any information confidentially communicated, | 254 |
to the
member of the clergy, rabbi, priest, or minister for
a | 255 |
religious counseling purpose in the
member of the clergy's, | 256 |
rabbi's,
priest's, or minister's professional character;
however, | 257 |
the member of the clergy, rabbi, priest, or
minister
may testify | 258 |
by
express consent of the person making the communication, except | 259 |
when the disclosure of the information is in violation of a sacred | 260 |
trust; | 261 |
(F) A person who, if a party, would be restricted
under | 271 |
section 2317.03 of the Revised Code, when the
property or thing is | 272 |
sold or transferred by an executor,
administrator, guardian, | 273 |
trustee, heir, devisee, or legatee,
shall be restricted in the | 274 |
same manner in any action or
proceeding concerning the property or | 275 |
thing. | 276 |
(G)(1) A school guidance counselor who holds a valid
educator | 277 |
license from the state board of education as
provided for
in | 278 |
section 3319.22 of the Revised Code, a person
licensed under | 279 |
Chapter 4757. of the Revised Code
as a professional clinical | 280 |
counselor, professional counselor,
social worker, independent | 281 |
social worker, marriage and family therapist or independent | 282 |
marriage and family therapist, or registered under Chapter 4757. | 283 |
of the Revised
Code as a
social work assistant concerning a | 284 |
confidential
communication received from a
client in that relation | 285 |
or
the
person's advice to a client unless any of
the following | 286 |
applies: | 287 |
(H) A mediator acting under a mediation order issued under | 321 |
division (A) of section 3109.052 of the Revised Code or otherwise | 322 |
issued in any proceeding for divorce, dissolution, legal | 323 |
separation, annulment, or the allocation of parental rights and | 324 |
responsibilities for the care of children, in any action or | 325 |
proceeding, other than a criminal, delinquency, child abuse,
child | 326 |
neglect, or dependent child action or proceeding, that is
brought | 327 |
by or against either parent who takes part in mediation
in | 328 |
accordance with the order and that pertains to the mediation | 329 |
process, to any information discussed or presented in the | 330 |
mediation process, to the allocation of parental rights and | 331 |
responsibilities for the care of the parents' children, or to the | 332 |
awarding of parenting time rights in relation to their children; | 333 |
(I) A communications assistant, acting within the scope of | 334 |
the communication assistant's authority, when providing | 335 |
telecommunications relay service
pursuant to section 4931.35 of | 336 |
the Revised Code or Title II of
the
"Communications Act of 1934," | 337 |
104 Stat. 366 (1990), 47 U.S.C.
225, concerning a communication | 338 |
made through a telecommunications
relay service.
Nothing in this | 339 |
section shall limit the obligation of a
communications assistant | 340 |
to divulge information or testify when mandated by
federal law or | 341 |
regulation or pursuant to subpoena in a criminal proceeding. | 342 |
(J)(1) A chiropractor in a civil proceeding concerning a | 345 |
communication made to the chiropractor by a patient in that | 346 |
relation or the
chiropractor's advice to a patient, except as | 347 |
otherwise provided in this
division. The testimonial privilege | 348 |
established under this division does not
apply, and a chiropractor | 349 |
may testify or may be compelled
to testify, in any civil action, | 350 |
in accordance with the discovery
provisions of the Rules of Civil | 351 |
Procedure in
connection with a
civil action, or in connection with | 352 |
a claim under Chapter 4123.
of the Revised Code, under any of the | 353 |
following
circumstances: | 354 |
(c) If a medical claim, dental claim, chiropractic
claim, or | 360 |
optometric claim, as defined in section 2305.113 of the
Revised | 361 |
Code, an action for wrongful death, any other type
of
civil | 362 |
action, or a claim under Chapter 4123. of the Revised
Code
is | 363 |
filed by the patient, the personal representative of the
estate of | 364 |
the patient if deceased, or the patient's guardian
or other legal | 365 |
representative. | 366 |
(2) If the testimonial privilege described in division
(J)(1) | 367 |
of this section does not apply as provided in division
(J)(1)(c) | 368 |
of this section, a chiropractor may be
compelled to
testify or to | 369 |
submit to discovery under the Rules of
Civil
Procedure only as to | 370 |
a communication made to the
chiropractor by
the patient in | 371 |
question in that relation, or the
chiropractor's
advice to the | 372 |
patient in question, that related causally or
historically to | 373 |
physical or mental injuries that are relevant to
issues in the | 374 |
medical claim, dental claim, chiropractic claim, or
optometric | 375 |
claim, action for wrongful death, other civil action,
or claim | 376 |
under Chapter 4123. of the Revised Code. | 377 |
(4) As used in this division,
"communication" means | 381 |
acquiring,
recording, or transmitting any information, in any | 382 |
manner, concerning
any facts, opinions, or statements necessary to | 383 |
enable a chiropractor to
diagnose, treat, or act for a
patient.
A | 384 |
communication may
include, but is not limited to, any | 385 |
chiropractic, office, or
hospital communication such as a record, | 386 |
chart, letter,
memorandum, laboratory test and results, x-ray, | 387 |
photograph,
financial statement, diagnosis, or prognosis. | 388 |
Section 3. Section 2317.02 of the Revised Code is presented | 391 |
in
this act as a composite of the section as amended by both Am. | 392 |
Sub. H.B. 374, Am. H.B. 533, and Am. Sub. S.B. 281, all of
the | 393 |
124th General Assembly. The General Assembly, applying the | 394 |
principle stated in division (B) of section 1.52 of the Revised | 395 |
Code that amendments are to be harmonized if reasonably capable of | 396 |
simultaneous operation, finds that the composite is the resulting | 397 |
version of the section in effect prior to the effective date of | 398 |
the section as presented in this act. | 399 |